National Parliaments and the Policing of the Subsidiarity Principle Katarzyna Granat Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, December 2014 (defence) European University Institute Department of Law National Parliaments and the Policing of the Subsidiarity Principle Katarzyna Granat Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Bruno De Witte, European University Institute (Supervisor) Professor Loïc Azoulai, European University Institute Professor Damian Chalmers, London School of Economics Professor Thomas Christiansen, Maastricht University © Katarzyna Granat, 2014 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author This thesis has been submitted for language correction. 4 Acknowledgments I would like to thank Professor Bruno de Witte for his support during the process of writing the thesis, as well as for his advice and kindness. I started this work under the supervision of Professor Miguel Maduro whom I would like to thank for his guidance and counsel during the earlier stages of the writing process. My thanks are also due to Professor Loïc Azoulai for his inspiration and enthusiastic support for my research. From the Political Science department, I wish to thank Professor Adrienne Héritier who kindly supported me and invited me to work with her on an engaging project. Beyond the fruitful time that I have spent in Florence, I have also benefited from a number of research visits abroad. I am grateful to Professor Damian Chalmers and Professor Jan Komárek for hosting and advising me at the London School of Economics, and to Professor Armin von Bogdandy for welcoming me to the Max Planck Institute in Heidelberg. Finally, I wish to thank Judge Marek Safjan and the members of his Cabinet at the European Court of Justice for involving me fully in the life of the Court. This thesis has benefited considerably from innumerable discussions with scholars and experts who have offered comments, criticism, and suggestions. Particular thanks are due to Rainer Arnold, Katrin Auel, Richard Bellamy, Thomas Christiansen, Ian Cooper, Marise Cremona, Federico Fabbrini, Cristina Fasone, Nicola Lupo, Giuseppe Martinico, François- Xavier Millet, Paolo Ponzano, François Randour, Robert Schütze and Takis Tridimas as well as civil servants of the national parliaments who patiently responded to my inquiries. I wish to thank especially Maciej, Boris, Rebecca and Tiago for their friendship during my EUI time and beyond. And I would not be able to accomplish this thesis without all the love, patience, and computer skills of my fiancé Jan-Peter Siedlarek – Danke Dir! This thesis is dedicated to my parents, Maria and Mirosław Granat, to whom I owe everything. 5 Summary This PhD thesis studies the role of national parliaments in the policing of the EU subsidiarity principle. The Treaty of Lisbon enshrines the Early Warning System (EWS) in Protocol No. 2, according to which national parliaments may review Commission proposals for compatibility with the subsidiarity principle expressed in Article 5(3) TEU. On the basis of the number of reasoned opinions submitted, which count as votes, national parliaments may trigger either a ‘yellow’ or an ‘orange’ card, each of which entails different consequences for the Commission draft act in question. The purpose of this thesis is to analyse the functioning of the EWS and to explore why national parliaments participate in this mechanism. To achieve this task, this thesis analyses the reasoned opinions issued under the EWS. Hence, this thesis firstly conducts a case study of the Commission proposal on the establishment of the European Public Prosecutor’s Office which triggered a ‘yellow card’. This example shows that national parliaments tend to conduct a broad scrutiny of Commission proposals, which includes aspects other than the subsidiarity of the proposal: its legal basis, the competence of the EU to act, its proportionality and its substance. This practice of national parliaments is evaluated according to a textual, structural and functional interpretation of the EU Treaties, and as a result, a narrow subsidiarity test is suggested for the purpose of the EWS. Thereafter, the thesis explores the national procedures of ex ante (EWS) and ex post (action before the ECJ) scrutiny. In addition, national debates are studied in order to analyse the relationship between national legislatives and executives, between parliamentary majorities and opposition, as well as the reflection of regional interests. This detailed study of debates also points to the first reasons for the participation of national parliaments in the EWS: the protection of idiosyncratic national interests and the restriction of EU redistributive policies. Further reasons for national parliaments’ participation in the EWS are indicated on the basis of two case studies, dealing with the Monti II regulation (competence), and the Tobacco Products Directive (‘delegated legislation’). These suggest that the EWS is used by national parliaments to increase their impact in the EU legislative process. The last case study of this thesis – the ‘Women on Boards’ proposal – ponders the application of the EWS to ‘genuine’ fundamental rights proposals, showing that the subsidiarity tests at stake here are focused to a much greater extent on a political willingness to protect universal values, rather than on efficiency. The thesis concludes by discussing whether the EWS enhances the EU’s democratic legitimacy and decreases the EU’s competence creep, which were the leading ideas behind the introduction of the Protocol No. 2 mechanism. It is pointed out that, although the impact of national parliaments on EU policy-making is uneasy to measure, some of the criticism of national parliaments is taken on board by the EU legislator. Because the ‘competence creep’ of the EU is rather limited, it also does not demand a great deal of involvement on the part of national parliaments. 6 Acknowledgments ................................................................................................................ 5 Summary .............................................................................................................................. 6 Introduction ................................................................................................................ 15 1 Research question ..................................................................................................... 15 2 Point of Departure from Existing Scholarship ....................................................... 20 3 Method and sources .................................................................................................. 25 4 Structure .................................................................................................................... 27 Chapter 1: National Parliaments and Subsidiarity in the EU Treaties ................ 29 Introduction ....................................................................................................................... 29 1 Shaping the role of national Parliaments in the European Union ........................ 30 1.1 The Treaty of Maastricht .................................................................................... 30 1.2 The Treaty of Amsterdam .................................................................................. 31 1.3 The Constitutional Treaty .................................................................................. 32 1.4 The Treaty of Lisbon .......................................................................................... 33 2 Characteristics of the subsidiarity principle .......................................................... 35 2.1. Subsidiarity in EU Treaties ...................................................................................... 37 2.1 Design of the EWS ............................................................................................. 44 2.2 Current practice of the EWS .............................................................................. 48 3 The subsidiarity review from the perspective of EU institutions ......................... 50 3.1 The European Parliament ................................................................................... 51 3.2 The Council ........................................................................................................ 54 3.3 The Committee of the Regions........................................................................... 55 4 The ‘Barroso initiative’ ............................................................................................ 57 5 The EWS in Inter-parliamentary Cooperation ...................................................... 62 5.1 The Conference of Speakers of EU Parliaments ................................................ 64 5.1.1 Interparliamentary Conference for the Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP) ........................................................................ 64 5.1.2 IPEX ............................................................................................................................ 65 7 5.2 COSAC .............................................................................................................. 67 5.3 National Parliaments’ Representatives