Codecision and national parliamentary scrutiny - European Union Committee Contents


Memorandum by Dr Helle Krunke,[99] University of Copenhagen

THE CO-DECISION PROCEDURE ITSELF

  Question 1a)  The effect of first reading deals is that many important decisions are made at a very early stage of the negotiation process. This calls for an earlier involvement of the national Parliaments. However, at this early point of the decision making process the position of the European Parliament is not clear and this weakens the basis for scrutiny in the national Select Committees on the European Union.

Another problem for the national Parliaments deriving from the co-decision procedure is that the proposals might be subject to quite extensive alterations during the co-decision legislation process. If the national Select Committees on the European Union are only given an opportunity to scrutinize the proposals at an early stage of the negotiations the national Parliaments are not able to scrutinize the alterations. This can undermine the quality/effectiveness of the parliamentary scrutiny of the European legislation.

Question 1b)  Duty of confidentiality in the Select Committees on the European Union in the Member States makes it possible to discuss almost all negotiating documents. If further security is needed it can be obtained by the government by not giving the members of the committee any papers only an oral presentation. If possible one copy of documents which are in particular confidential can be placed (in a safe box) with the secretary of the Select Committee on the European Union and members of the committee can then study the documents there with no permission to bring the documents with them or take copies of them etc. The co-decision procedure does not apply to the European Union's Foreign and Security Policy (pillar 2). Even though there often is a close connection between politics under the three pillars it is obvious that the need for confidentiality is more extensive under pillar 2 than under pillar 1 and pillar 3. Under pillar 1 duty of confidentiality in the national Select Committees on the European Union should provide sufficient security when it comes to the confidential nature of negotiating documents.

GOVERNMENTS AND THE EU INSTITUTIONS

  Question 3)  The purpose of scrutiny arrangements like a Scrutiny Reserve (UK) or mandate procedures (in for instance Denmark) are to give the national Parliaments a chance to scutinize the European legislation and to influence the governments' EU policy. These procedures compensate the national Parliaments for the sovereignty transferred to the EU. Under the co-decision procedure the legislative proposals might get altered to an extent where it is necessary to involve the national Parliaments once more. There will always be a certain estimate build into the decision of when this is necessary. Obviously, the larger the alterations the more need for a new scrutiny or a new mandate. It is difficult to give an exact guideline for when the national governments should consult the national Parliaments again especially in Member States which do not practice a mandate procedure. In Member States which practice a mandate procedure a new consultation of the Select Committee on the European Union is necessary when the alterations exceed the mandate given by the Committee. In Member States without a mandate procedure but with a Scrutiny Reserve there seems to be left more of an estimate to the government but also in this case there is a limit for how extensive alterations of EU legislation can be before the national Parliaments must be involved once more. This follows from the scrutiny reserve and its purpose. The larger alterations to an EU legislation proposal the closer the proposal gets to turning into what is in reality a new proposal. In the Danish legislation process there is a so-called "identity principle". The principle is considered a constitutional principle. It follows from Article 41, part 2, of the Danish Constitution according to which proposals for legislation must go through three readings before being adopted by Parliament. The idea of the identity principle is that if a proposal for new legislation changes too much during Parliament's readings it must be regarded as a new proposal and thus it can not be adopted at the third reading of the original proposal. The new proposal must go through three readings. The principle secures the democratic guarantee based on the three readings in Parliament. Scrutiny Reserves and mandate procedures are also principles/conventions/rules which secure democratic guarantees and they would be circumvented if a proposal for EU legislation could be altered extensive without involving the national Parliaments once more. The national governments must consider how far the alterations are from the original proposal and they must hold it together with the national Parliaments' positions on the proposal. The governments must estimate whether the alterations are of importance to the national Parliaments. Thus, it is important that national Parliaments discuss and comment thoroughly on EU legislation so the governments are aware of the Parliaments' position. This limits the governments' estimations. This also applies to Member States with mandate procedures because a mandate procedure also leaves an estimate to the government when the mandate is to be interpreted.[100]

Question 4)  Obviously, a close cooperation between the national Parliaments strengthens parliamentary scrutiny of European legislation. COSAC plays an important role in obtaining this. Cooperation between the national Select Committees on the European Union and between other national select committees are important. Also, a closer cooperation between national Parliaments and national representatives in the European Parliament can contribute to a more effective parliamentary scrutiny of European legislation. See paragraph 5). The early warning system in the Protocol on the application of the principles of subsidiarity and proportionality of the Lisbon Treaty is a good example of how it is possible to strengthen the national Parliaments by giving them direct influence on EU legislation instead of just influence through their national governments.

SCRUTINY PROCEDURES IN PARLIAMENTS

  Question 5)  The most important keys to effective parliamentary scrutiny under the co-decision procedure are:

    — involvement of and information to the national Parliaments as early as possible in the process,

    — opportunity for the national Parliaments to new scrutiny and/or to give new mandates to the governments if the negotiations give rise to fundamental alterations of the proposal or to alterations of the proposal in a field which is especially important to the national Parliament or if the mandate is exceeded,

    — national Parliaments obtain oversight throughout the negotiations, and

    — close contact between the national members of the European Parliament, the national Select Committees on the European Union and the other national select committees.

  As it will appear the Danish Select Committee on the European Union has almost managed to adjust its scrutiny procedures according to all the mentioned aspects.

  The Danish Select Committee on the European Union has—compared to select committees in other Member States—always had a quite strong position. The Committee was early aware of the problems relating to parliamentary scrutiny of European legislation which rose from the co-decision procedure and the strengthened position of the European Parliament. Thus, the Committee already in 1994 started working on new procedures which could counterbalance the scrutiny difficulties arising from the new development. The Committee regularly rethinks the scrutiny problems relating to the co-decision procedure and the scrutiny procedures are regularly adjusted. The Committee has dealt with co-decision in several reports (Report no. 2, 1994, Report no. 6, 1996, Report no. 1, 1999, Report no. 3, 2001, Report no. 2, 2004 and Report no. 6, 2006).

  The co-decision procedure and the strengthened role of the European Parliament have given rise to a number of new procedures in the Danish Select Committee on the European Union. These procedures have been approved of by the Danish government. The parliamentary scrutiny of European legislation has been strengthened in five ways:

    1. The Danish government has made a commitment to provide the Select Committee on the European Union with ongoing information on proposals of major import as early as possible in the process. A permanent item on the agenda for the meetings in the Committee provides the opportunity for this. (Report no. 6, 2006)

    The Danish Select Committee on the European Union meets once a week.

    2. With regard to proposals of major import the Danish government obtains a mandate from the Select Committee on the European Union before the Danish position is determined for instance in connection with a first reading deal. (Report no. 6, 2006)

    The Danish government interprets the above the following way. The government shall try to avoid the combination of mandate proposal/part A when presenting a Council meeting and in matters of major import the government will present a mandate proposal before COREPER gives the presidency mandate to enter into an agreement with the European Parliament. Furthermore, regarding matters in which the Committee has expressed a special interest during the first briefing the government shall seek to present a mandate proposal even earlier. (Report no. 6, 2006)

    It is an advantage for the Danish Select Committee on the European Union that it is consulted before the first reading in the European Parliament. At this early point of the decision making process the opportunity of gaining influence is best. On the other hand, at this point the Committee has no knowledge of the views of the European Parliament and this weakens the basis for decision making in the Committee. Therefore, the Committee has requested that the government is especially aware of providing the Committee with information on the preliminary views of the European Parliament in these cases (if possible). (Report no. 2, 2004).

    The Danish mandate procedure dates back to 1972 but throughout the years it has been refined. According to the mandate procedure ministers only vote for a proposal of major import if the majority of the Select Committee on the European Union is not against it. See for instance Helle Krunke, Developments in National Parliaments' Involvement in Ordinary Foreign Policy and European Policy, European Public Law, Vol. 13, Issue 2, June 2007, pp. 335-348.

    3. If the Council and the European Parliament do not agree after the first reading Parliament must be informed in a memorandum on to which extent the proposal has been fundamentally altered. (Report no. 2, 2004).

    4. If the negotiations give rise to fundamental/basic alterations of the proposal the government obtains a new mandate from the Select Committee on the European Union. (Report no. 6, 2006)

    As Denmark has a mandate procedure (which at least by parts of legal theory is considered legally binding on the government) the government must consult the Select Committee on the European Union if the alterations of the proposal will exceed the mandate.

    5. A strengthening and systematisation of the informal cooperation between the Select Committee on the European Union and the Danish members of the European Parliament has taken place. Also, a strengthening and systematisation of the informal cooperation between the other select committees and the Danish members of the European Parliament has taken place. Finally, the cooperation between the Select Committee on the European Union and the other select committees has been strengthened. (Report no. 2, 2004)

    For instance, once a month a meeting is held between the Danish members of the European Parliament and the Danish Select Committee on the European Union.

  Question 6)  It is important that the national Parliaments are given a chance to scrutinize the proposals at the earliest possible time. It is also important that the national Parliaments obtain oversight throughout the negotiations, though. The national Parliaments must be informed on the position of the European Parliament. If the negotiations give rise to fundamental alterations of the proposal it is especially important that the national Parliaments are given a new chance to scrutinize the altered proposal, express their opinion and in Member States which have a mandate procedure provide the government with a new mandate.

14 April 2009





99   This evidence is submitted on an individual and not a corporate basis. Back

100   In 2005 the Danish Select Committee on the European Union and the Minister of Economic Affairs had a disagreement on whether the minister had exceeded his mandate in the negotiations on the Software Patent Directive Com (2002) 92. The interpretation of the mandate played an important role in these discussions. Back


 
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