A ‘Virtual Third Chamber’ for the European Union? National Parliaments after the Treaty of Lisbon

Abstract

The Treaty of Lisbon introduces an early warning mechanism (EWM) which empowers national parliaments to intervene directly at the EU level; they may now raise objections to – and even play a role in blocking – EU legislation. The EWM represents a new model of parliamentary involvement in international relations: national parliaments now constitute a virtual third chamber for the EU. Though they do not meet together in the same physical space, national parliaments collectively form a body that can, at least to some degree, perform three key parliamentary functions – legislation, representation, and deliberation. First, it gives national parliaments the power to influence legislative outcomes at the EU level. Second, it provides a new channel of representation linking the citizen with the EU. Third, it creates a new forum for debating the substantive merits of proposed EU legislation, particularly regarding its compliance with the principle of subsidiarity.

Acknowledgements

This study is part of the larger project, ‘The Transformation and Sustainability of the European Political Order (EuroTrans)', funded by the Norwegian Research Council and based at ARENA – Centre for European Studies, University of Oslo. The author is grateful to colleagues at ARENA and fellow participants in the Münster ECPR Joint Sessions workshop on Inter-Parliamentary Relations in Europe for comments on previous versions. Particular thanks are due to Ben Crum, Erik Oddvar Eriksen, John Erik Fossum, Magali Gravier, Annabelle Littoz-Monnet, Chris Lord, Gary Marks, Johannes Pollak, and two anonymous reviewers.

Notes

 1. Some recently devised theoretical concepts in this regard include a ‘polycentric paradigm’ (Besselink 2006), the EWM as a Conseil d'Etat for Europe (Kiiver 2011), and – to be discussed further below – a ‘multilevel parliamentary field’ (Crum and Fossum 2009).

 2. Control of the executive, another important parliamentary function, has been omitted from this analysis because national parliaments have little role in this regard. It is now well established, as the Treaty of Lisbon confirms, that ‘The Commission, as a body, shall be responsible to the European Parliament’ (Art 17(8) TEU). As it happens, the idea of giving national parliamentarians a role in electing and impeaching the Commission was proposed without success in the European Convention (Kiiver 2006: 148).

 3. For full details, see http://www.cosac.eu/en/info/earlywarning/

 4. See http://www.ipex.eu

 5. For full details, see http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/index_en.htm

 6. Peter Hain, UK representative at the European Convention, insightfully described the EWM as a ‘virtual watchdog’, devised as an alternative to ‘a new body meeting in Brussels regularly’, which would have entailed ‘national parliamentarians all in the same place on the same day’. Remarks before the Select Committee on European Scrutiny, 20 November 2002, available at http://www.publications.parliament.uk/pa/cm200203/cmselect/cmeuleg/103-i/2112002.htm, at para. 3.

 7. For certain policy areas within the Area of Freedom Security and Justice – specifically police cooperation and judicial cooperation in criminal matters – the yellow card threshold is one quarter, or 14 of 54 votes in EU-27.

 8. The protocol also notes that after a legislative act has been adopted, a member state may, on behalf of its national parliament, challenge it before the European Court of Justice on the grounds that it violates subsidiarity (Art. 8, Protocol 2 TEU/TFEU).

 9. According to COSAC (2011: 26–31), as of August 2011, 29 of the 40 chambers in the EU had issued a total of 69 reasoned opinions raising subsidiarity issues with 27 legislative proposals. All of these proposals received no more than five reasoned opinions each, with two exceptions. The Seasonal Workers Directive (COM(2010) 379) prompted ten reasoned opinions, equivalent to ten ‘votes’; and the proposal for a Council Directive on a Common Consolidated Corporate Tax Base (CCCTB) (COM(2011) 121) provoked nine reasoned opinions, equivalent to 13 ‘votes’. The latter vote tally is the highest to date, but still short of the yellow and orange card thresholds of 18 and 28 votes respectively. However, as will be argued below, the frequency of yellow and orange cards is not necessarily the best measure of the effectiveness of the EWM.

10. Up to August 2011, five of the 11 most active chambers (issuing three or more reasoned opinions) were upper houses of bicameral parliaments – those of Poland, Italy, France, the Netherlands, and Romania (COSAC 2011: 27).

11. ‘From Parliament to Parliament’, European Voice, 20 January 2011, p. 21.

12. The Danish Folketing and the German Bundesrat saw their concerns reflected in later versions of a Directive (COM(2010) 368) on Deposit Guarantee Schemes (COSAC 2011: 34–5).

13. Regarding the Seasonal Workers' Directive, the Commission acknowledged that NPs' reasoned opinions have been influential even in the absence of a yellow card:

In the Council and the European Parliament so far only preliminary discussions have taken place, at working group and committee level respectively. These have reflected several of the issues raised by national Parliaments in their opinions … Overall, it should be emphasised that some of the opinions received from national Parliaments on this proposal have served as an effective ‘early warning’ for the Commission as regards issues likely to be raised in the course of the legislative process. (European Commission 2011: 8)

It is, however, too early to know how NPs' opinions will affect the final legislative outcome in this case.

14. Admittedly, the electoral connection is less direct for NPs than for the EP because national parliamentary elections are largely fought on domestic rather than European issues; of course, that is also true of the election of national government representatives in the Council. Because of their national perspective, NPs acting together are likely to take a position on EU legislation that is often different from that of the EP. However, from the point of view of representation, it can be argued that the EP and NPs, individually and collectively, mostly complement each other, and by doing so enhance the EU's democratic legitimacy. That is the case made by Crum and Fossum (2009), who portray NPs and the EP as comprising a ‘multilevel parliamentary field’. The idea of a ‘virtual third chamber’ has certain commonalities with this notion. Both denote forms of interparliamentary cooperation with ‘systemic properties’ and an ‘integrated structure’ (Crum and Fossum 2009: 267) in contrast to the much looser notion of an interparliamentary ‘network’ (cf. Slaughter 2004: Ch.3). Yet there are important differences. Crum and Fossum place greater emphasis on the ‘vertical’ connection between national parliaments and the European Parliament; and they are focused mainly on the representative functions of parliaments at both levels, and how these interact with and perhaps reinforce one another. The ‘virtual third chamber’ is formed on the ‘horizontal’ plane out of the relationships between national parliaments which then as a group interact vertically with EU institutions, including the European Parliament; moreover, unlike the field it has some collective agency as an institution that performs a legislative function. Still the two notions are broadly compatible: the virtual third chamber can be thought of as a particularly robust form of interparliamentary cooperation embedded within the larger multilevel parliamentary field in the EU.

15. The IPEX website has been frequently criticised as difficult to use, and its effectiveness as a communications tool has suffered as a result (COSAC 2010b: 22–3). This is unfortunate because it is a means not only for communications between parliaments but also to make their deliberations accessible to citizens. In June 2011 the website was relaunched in what is intended to be a more user-friendly format.