- “Cameron will have difficulties to deliver results on his demand for a ‘red card’ to strengthen national parliaments. The EU should concentrate on improving the current system.”
One of the British reform proposals for the European Union is to strengthen the role of national parliaments. In his Bloomberg speech on 23 January 2013, Prime Minister David Cameron said “we need to have a bigger and more significant role for national parliaments” and more recently, the Sunday Telegraph reported that one of the UK’s demands would be a “red card” system in order to “give groups of national parliaments the power to stop […] EU laws”.
This indicates that the British Prime Minister, possibly wary of his on Eurosceptic Tory MPs, resists calls for a stronger parliamentary control of EU affairs in Westminster, but rather wants to strengthen all national parliaments in the EU and transform them into a collective actor at the EU level. The “red card” idea builds on the existing “yellow card” and “orange card” procedures that entered into force with the Lisbon Treaty in 2009. If the UK wants to play cards, what do the EU institutions as well as the other Member States think? Where are the possible lines of a compromise?
The existing “Early Warning Mechanism”
In the so-called “Early Warning Mechanism”, a national parliament can currently send a “reasoned opinion” to the European Commission in case of subsidiarity concerns about a legislative proposal. If one third of national parliaments thinks that a particular legislative matter should better be regulated at the national level (and at not the EU level), the threshold for a “yellow card” is reached. Then the Commission must decide whether it amends, withdraws or maintains the proposal, but any decision must be justified.
Since the Lisbon Treaty added the mechanism for subsidiarity control in 2009, it has been triggered twice: First, in 2012, a yellow card was issued on the Commission proposal for a Regulation on the exercise of the right to take collective action (also known as “Monti II”). The Commission withdrew the proposal, but argued that the principle of subsidiarity had not been breached. Second, in 2013, a yellow card was issued on the Commission proposal for a Regulation on the European Public Prosecutor’s Office. However, the Commission concluded that the proposal complied with the subsidiarity principle and decided to maintain it.
Active and passive parliaments
If more than half of national parliaments raise subsidiarity concerns, they reach the threshold for an “orange card”: In that case, a qualified majority in the Council or a simple majority in the European Parliament is sufficient to force the Commission to withdraw its proposal. This has not happened yet.
However, there is great variation in the level of activity of national parliaments in the early warning mechanism. On average national parliaments send one reasoned opinion per year. The Swedish Parliament is very active (more than 40 reasoned opinions since 2009), but other national parliaments are rather passive: Bundestag and Bundesrat issued a total of 13 reasoned opinions from 2009 to 2013 and in 2014, for example, three reasoned opinions were issued by the House of Commons, but none by the House of Lords.
What are the prospects for the “red card”?
A strong “red card” mechanism would significantly alter the constitutional equilibrium in the EU and put national parliaments into a genuine blocking position able to bring the EU legislative process to a standstill. For David Cameron, setting his hopes on a powerful collective role for national parliaments might be domestically wiser than strengthening the scrutiny of EU affairs that is exercised by his own backbenchers in the House of Commons, but – as with his other demands for EU reform – he will notice the difficulties to deliver concrete results on that demand.
Recent studies indicate that only two countries could be supportive to the “red card” idea: the Netherlands and Hungary. Most other Member States are in a “wait and see” position and want to give the Lisbon Treaty rules a chance first. Both the European Commission and the European Parliament perceive a “red card” as a challenge to their prerogatives and are opposed to the idea. Moreover, false pragmatism along the lines “if they insist, let’s give them another gadget” would just duplicate the current “yellow card” mechanism with its shortcomings. It would do more harm than good to strengthening the role of national parliaments in the EU.
Problems of the current system
The main risk that comes along with the current system is ineffectiveness, because the threshold is difficult to reach within the given timeframe of eight weeks and because there is no obligation for the Commission to take the concerns into account (and withdraw the legislative proposal) when a yellow card is triggered.
The early warning mechanism also puts national parliaments only in a position of blocking EU integration. Some proponents of a stronger role for national parliaments, such as the House of Lords, the Danish or Dutch parliaments, prefer a “green card” mechanism under which national parliaments could make suggestions to the European Commission for new (legislative) proposals.
A possible compromise: Make the current system work better
Following this reasoning, EU institutions and other Member States should concentrate their efforts on improving the current system. The Commission could promise to consider a yellow card more seriously – or, alternatively, Council or European Parliament could make a political commitment to drop a Commission proposal if national parliaments oppose it – and the eight-week timeframe could be extended.
In addition to that, cooperation between parliaments in the early warning mechanism could become stronger: If one national parliament knew beforehand which dossiers other parliaments were examining closely because of possible subsidiarity concerns, this might considerably help to reach the threshold. The current information flows are often not sufficient: MPs should cooperate and exchange more with their counterparts from other countries.
The actual result of the negotiations between the EU and its awkward Member will depend on the extent to which the 27 other EU Member States are willing to let the British Prime Minister sell the agreement (that they will most likely reach at some point in 2016) as a “red card” for national parliaments. The success of the enhanced mechanism, however, will depend on how EU institutions and national parliaments make use of it and follow it.
Valentin Kreilinger is a Research Fellow at the Jacques Delors Institute Berlin and a PhD candidate at the Hertie School of Governance. He works on issues such as differentiated integration, European and national parliaments and reforming the Economic and Monetary Union. He tweets @tineurope and uses his own blog for everything that does not fit into 140 characters.