1. DIRECTORATE GENERAL FOR INTERNAL POLICIES
CONSTITUTIONAL AFFAIRS
The Legisprudential Role of National Parliaments in the European Union

2. Outline National parliaments as legisprudential actors
The EWS and the scope of review
The “green card”
The “red card”

3. 1. National parliaments as legisprudential actors
Question: how to frame/conceptualize the role of NPs in EU law-making?
Art. 12 TEU and the “European function” of NPs
Information rights
Revision of the Treaties
Control of national governments
Control of the subsidiarity principle
Interparliamentary cooperation

4. 1. National parliaments as legisprudential actors
Conceptual/Theoretical proposals
Multilevel parliamentary field (Crum/Fossum)
Euro-national parliamentary system (Fasone/Lupo)
Composite constitutional order (Besselink)
Question: what is the overall function or added value for NPs in European law-making?

5. 1. National parliaments as legisprudential actors
The legisprudential role of NPs (I)
To promote the rationality of the EU law-making process
To assess on the justification, quality, effectiveness and reasonableness of EU legislation

6. 1. National parliaments as legisprudential actors
The legisprudential role of NPs (II)
Systematic coherence and goals of a draft legislative proposal
Justification for intervention or regulation at EU level
Ongoing desirability of norms
Overall proportionality of the intended EU regulation

7. 2. The EWS and the scope of review
The subsidiarity principle as a legal principle
Subsidiarity control extends to conferral and proportionality
Difficulty in separating the 3 principles of art. 5 TEU

8. 2. The EWS and the scope of review
Conferral as pre-condition of subsidiarity
Inbuilt dimension of proportionality in subsidiarity (“insofar”)
Respect for subsidiarity requires the EU measure to be:
Appropriate
Indispensable
Congruent with the objective pursued

9. 2. The EWS and the scope of review
Comprehensive model of subsidiarity review:
Can the EU act? (competence)
Shall the EU act? (subsidiarity stricto sensu)
How shall the EU act? (proportionality)
It would allow the EWM to promote the legisprudential role of NPs

10. 3. The “green card”
Allows NPs to be proactive in the law-making process
Requesting draft legislative proposals
Requesting the review or amendment of existing legislation
Allows NPs to address the necessity and justification of legislation
Allows NPs to scrutinise existing legislation

11. 3. The “green card”
Informal mechanism (v.g. spontaneous initiative of a group of NPs)?
Enhancement of the Political Dialogue?
Desirability of formalization through treaty amendment?
Which threshold to trigger a green card and produce binding effect?
Advantages of a low threshold

12. 4. The “red card” Would allow NPs to veto draft legislative proposals
Crucial question: who should have the power to determine if the principle of subsidiarity has been breached?

13. 4. The “red card”
Protocol 2 Lisbon Treaty: NPs assigned crucial task of controlling compliance with subsidiarity
Avoids the dilemma of self-control through EU institutions (namely, the Commission, the Council and the EP)
Externalises the control to Parliaments of Member-States

14. 4. The “red card” NPs control is presently rather weak
“Yellow card” and “orange card” do not bind the Commission to withdraw a proposal
No orange card has been triggered until now
Only 3 yellow cards
Interparliamentary cooperation needs to be strenghtened

15. 4. The “red card” Represents strong empowerment of NPs
Need for a high threshold
Requires treaty amendment
Avoid overvaluation of this mechanism
Requires very strong interparliamentary cooperation
Improbable
Political pressure of both yellow and orange cards

16. Presentation by Luís Heleno Terrinha Universidade Católica Portuguesa
Policy Department Citizens’ Rights and Constitutional Affairs
Responsible Administrator: Eeva ERIKSSON