The draft renegotiation deal: A genuine red card? Tusk’s proposal and national parliaments

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 3 February 2016)

Dr. Katarzyna Granat, (*)

The Draft Decision of the Heads of State or Government, ‘A New Settlement for the United Kingdom within the European Union’, unveiled by Donald Tusk on February 2 2016 offers the first concrete vision of the changes to enhance the role of national parliaments under the UK’s renegotiation efforts. This note provides an analysis of the suggested changes by contrasting them with the mechanisms currently in force under the Lisbon Treaty.

Tusk’s proposal (Section C, points 2-3) envisions that reasoned opinions of national parliaments issued under Article 7.1 of Protocol No. 2 ‘on the application of the principles of subsidiarity and proportionality’ should be ‘duly taken into account’ by all institutions participating in the EU decision-making procedures. In Tusk’s proposal national parliaments may submit reasoned opinions stating that an EU draft legislative act violates the principle of subsidiarity submitted within 12 weeks from the transmission of that draft. If these reasoned opinions represent more than 55% of votes allocated to national parliaments (i.e. at least 31 of the 56 available votes; two votes for each national parliament; in the case of a bicameral parliament, each of the two chambers has one vote; votes of parliaments of member states not participating in the adoption of the act at stake are not counted), the opinions will be ‘comprehensively discussed’ in the Council. If the EU draft legislative proposal is not changed in a way reflecting the concerns of national parliaments in their reasoned opinions, the Council will discontinue the consideration of that draft.

This proposal differs from the current ‘yellow’ and ‘orange’ card schemes of the Lisbon Treaty in a number of ways concerning in particular the timeframe, applicable thresholds and the effects of these procedures.

First, under the existing provisions of the Lisbon Treaty national parliaments may submit a reasoned opinion to the Commission, EP and Council within eight weeks from the transmission of the draft legislative act (Art. 6 of Protocol No.2). Tusk’s proposal hence gives national parliaments more time for the analysis of proposals and drafting reasoned opinions. The need to extend the submission deadline is often underlined by national parliaments and this would probably be welcomed by them. (See COSAC, 24th Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny, 4.11.2015 at 22) Yet, it is unclear whether the extension to 12 weeks under Tusk’s proposal also applies to the ‘yellow’ and ‘orange’ card procedures.

Second, although the mechanism of assignment of votes to national parliaments does not change, Tusk’s proposal offers a different threshold of votes to be met by national parliaments. The ‘yellow card’ provision demands that the reasoned opinions on the non-compliance of a Commission proposal with the principle of subsidiarity represent at least one third of all the votes allocated to the national parliaments. For triggering of the ‘orange card’, applicable only in the ordinary legislative procedure, the reasoned opinions of national parliaments need to represent at least a simple majority of the total number of votes allocated to the national parliaments. In contrast, to activate the procedure proposed by Tusk the necessary threshold is 55% of the votes allocated to national parliaments. Hence out of 56 votes of national parliaments at least 19 are necessary for a ‘yellow card’; at least 29 for an ‘orange card’ and 31 to meet the ‘more than 55%’ threshold in Tusk’s proposal. The new procedure thus requires only slightly more votes than the existing ‘orange card’, which, thus far, has never been triggered successfully.

Third, the most substantial change concerns the consequences of activating the new procedure. The ‘yellow card’ involved consequences that were relatively limited: the Commission had to review the draft and then to decide on whether to maintain, amend or withdraw the draft, giving reasons for its decision (Art. 7.2. of Protocol No. 2). For the ‘orange card’, the Commission had similar choices available, but a decision to maintain the proposal required the Commission to prepare its own reasoned opinion with arguments demonstrating compliance of the act with the subsidiarity principle. The EP and the Council would then decide on the fate of the proposal taking into account the arguments on the principle of subsidiarity expressed by the Commission and by national parliaments. If subsequently 55 % of the Council members or a majority of the votes cast in the EP finds a subsidiarity breach, ‘the legislative proposal shall not be given further consideration’. (Art. 7.3 of Protocol No. 2) By contrast, Tusk’s proposal seems to omit the phase in which the Commission can respond to national parliaments and instead moves directly to the Council, which may decide not to continue the consideration of the proposal, if that is not amended to accommodate the ‘concerns’ expressed by national parliaments. Tusk’s proposal binds stopping of the legislative procedure with whether the requests of national parliaments are met, while the ‘orange card’ provided for discontinuation only if the Council finds a subsidiarity breach.

It is worth noting that important details of the procedure such as who is responsible for amending the proposal and more importantly verifying whether the concerns of national parliaments were addressed are left unspecified. Recall that in its interaction with the national parliaments the Commission has often expressed itself satisfied that the concerns of the parliaments expressed in the reasoned opinions have been addressed by the original proposal. (See House of Lords, European Union Committee, 9th Report of Session 2013-14, para 87) Nevertheless, Tusk’s proposal seems to demand a more active response from EU institutions than the ‘orange card’.

Moreover, one should note that Tusk’s proposal does not grant the national parliaments a veto power on any aspect of a Commission proposal. Tusk’s proposal mentions that the discontinuance of the legislative procedure is conditional on the non-accommodation of the ‘concerns’ expressed in the reasoned opinions, with the ultimate decision taken by the Council, and thereby away from the national parliaments.

One further interesting aspect of Tusk’s proposal is that it refers throughout to reasoned opinions on the non-compliance of proposals with the subsidiarity principle, even though in their exercise of subsidiarity scrutiny under Protocol No. 2 national parliaments often critique issues such as the legal basis, proportionality or the political merits of a proposal, thereby going beyond strict subsidiarity review (See F. Fabbrini, K Granat, ‘“Yellow card, but no foul”: The role of the national parliaments under the subsidiarity protocol and the Commission proposal for an EU regulation on the right to strike (2013) 50 Common Market Law Review, 115–143). The question is whether under Tusk’s proposal such a broad approach would also be adopted in the Council. If so, this might cause difficulties in amending a proposal in a way that properly takes account of all the different aspects raised by national parliaments and in consequence makes it also easier to stop the legislative procedure because of the lack of accommodation of the demands of the parliaments.

A broad reading of Tusk’s proposal would therefore probably be more in line with Cameron’s wish of strengthening national parliaments by allowing a threshold of national parliaments ‘to stop unwanted legislative proposals,’ although Cameron underlined also that the EU must commit to a full implementation of the subsidiarity principle. (Letter of D. Cameron to D. Tusk, 10. November 2015 at 4) A more specific answer to the latter issue might be the proposed draft declaration ‘on a subsidiarity implementation mechanism and a burden reduction implementation mechanism’ obliging the Commission to create a mechanism for the review of existing EU legislation for its compatibility with the subsidiarity and proportionality principles with an aim to provide ‘full implementation’ of subsidiarity. (EUCO 7/16)

Last point: the fact that the tabled proposal demands a discussion in the Council could also mean that depending on the relationship between parliaments and their governments represented in the Council, the ministers might show more or less flexibility with the ‘concerns’ of their national parliaments and whether a consensus on stopping or continuing with the legislative procedure could be achieved.

Finally, recall that the rejected ‘red card’ proposed in the Convention on the Future of Europe aimed at a two-third majority of national parliaments that would require the Commission to withdraw its proposal (CONV 540/03, 6.02.2003, p. 3). In comparison, Tusk’s proposal has a lower threshold and does not imply an immediate stopping of the legislative procedure. It could be hence described as a ‘red card light’ and as way of finding a compromise solution without threatening to disrupt the EU legislative procedure.

(*)  Junior Research Fellow & Marie Curie Fellow, Durham Law School 

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