TEPSA Newsletter Editorial February 2016: “Schengen has imploded: how to save Schengen?”

The EU and its member states have been completely overtaken by the refugee crisis, more particularly in view of the numbers of migrants and the intensity of the process. We were not sufficiently prepared. Whether we could have foreseen the crisis, is another question.

In theory suitable instruments were available to counter the crisis. In view of the ‘single human space’ (the de facto borderless Schengen area) created after setting up the single market, the accomplishment of some important tasks should have been ensured at the EU external borders: the registration of the claims for asylum or other forms of protection, the identification of the applicants and the examination of the individual applications. Also the return of irregular migrants to their country of origin should have been prepared at our external borders. In this whole process fast procedures should have been applied.

In practice, however, our external borders appeared to be permeable. The weak role of Frontex is certainly an element in this discussion. However, at the time this agency was founded, member states did not want to have a strong European organisation responsible to exercise, as it were autonomously, controls at the external EU borders. On the contrary, member states preferred an organisation with a mandate to merely ‘assist’ them, upon their request. As it turned out, during the crisis individual member states started to develop their own approaches, varying from respectively allowing immediate passage, showing hospitality and openness, to the closing of borders and the construction of fences. Consequently, disorder arose and migrants evidently chose to travel (only) to those member states with an open attitude towards them. In short, a result completely contrary to the principles of solidarity and burden sharing. An approach also far from the common solutions which were so desperately needed.

Who is to blame for the situation that has occurred? Certainly not the European Union or, more particularly, the Commission. Indeed, the Commission has always monitored the situation carefully and tabled suitable proposals to counter the situation. Therefore, the member states are rather to blame. Either they did not implement obligations they had accepted in an earlier stage, or they were not willing to be engaged in a process of solidarity leading to common solutions. Is Europe lacking visionary politicians these days?

What should happen now? As much as possible, we have to try to transform the present chaotic situation into the one which should have been envisaged right from the start of the crisis. That means fast procedures for the registration, identification and examination of the applications for asylum. In view of the huge number of migrants a fair system of relocation across the member states cannot be avoided, also an effective system to return irregular migrants to their country of origin is needed. A supplementary measure could be to implement the ‘humanitarian admission scheme’ with Turkey. According to that scheme, a reduction of irregular inflows into Europe will be coupled with a (voluntary) admission in Europe of (primarily Syrian) migrants who were received in Turkey but are in need of protection. Another idea could be to ‘internationalise’ the problem, and to invite other ‘safe’ third countries to take their responsibility in the crisis and to accept a number of migrants in their respective countries. It is by the way surprising that this question has not been put more explicitly on the international agenda.

At the end of 2015, the Commission presented its proposal regarding the establishment of a European Border and Coast Guard: a good proposal aiming to secure control over the EU’s external borders in the Mediterranean. Indeed, everybody understands that a common, European, organisation is needed to fulfil such a complicated task in difficult and, even, dangerous times. In the given circumstances, the full responsibility to control these borders cannot be left any longer to those member states geographically located in the territory where these borders are drawn. The European Council of 18 February has called for an acceleration of the work with a view to reaching political agreement under the Dutch Presidency. Let’s hope that the competent ministers will do everything possible to restore an effective – and common – Schengen system well before the Dutch Presidency ends.

Prof. Jaap de Zwaan, TEPSA Secretary-General

Editorial TEPSA Newsletter December 2015: “Status Quo of TEPSA”, by Prof. Wolfgang Wessels, Chairperson of the Board, and Prof. Jaap de Zwaan, TEPSA Secretary General

After the difficulties we encountered in 2014, let us share our positive assessment about the future of TEPSA.  In the past months TEPSA was able – because of the help of the whole network – to continue its well established work including the Pre-Presidential Conferences in Riga 2014, Luxembourg 2015 and The Hague 2015. Our special thanks go to the TEPSA member institutes in Riga (Latvian Institute of International Affairs), Luxembourg (Centre d’Etudes et de Recherches Européennes Robert Schuman) and The Hague (Clingendael) for the excellent organisation and cooperation.

Three renowned organisations applied for membership, and after a careful scrutiny by the TEPSA Board and presentations on their work, the General Assembly in The Hague welcomed them with an unanimous vote: the Department of European Studies and International Relations of the University of Nicosia, Cyprus; the Norwegian Institute of International Affairs (NUPI), Oslo; and the Faculty of Economics of the University of Montenegro, Podgorica.

TEPSA also succeeded to get the ERASMUS+ Jean Monnet PONT project with which we will pursue a highly promising set of activities in the interest of our member institutes – especially in view of the annual professional skills training for young academics/young professionals. TEPSA is also partner in a major Horizon 2020 project on the EU and Turkey relations (FEUTURE), which offers TEPSA extended opportunities to participate in the policy formulation on this highly relevant topic for the EU. Plans for the TEPSA Pre-Presidential Conferences in Bratislava (2-3 June 2016) and Malta (November/December 2016) are well on their way.

On this firm and consolidated basis we can in 2016 plan for even more worthwhile activities in the years to come. During the General Assembly in The Hague we had a separate brainstorming session on TEPSA’s future vision and mission. We will take up the new ideas and continue to adapt the association to the needs of its member institutes and current EU realities. Given the current positive outlook for the association, the upcoming election for the new TEPSA Board, would be a good opportunity for a shift of responsibilities to a younger generation within the TEPSA network. We are very open for your suggestions and proposals in this regard. As to the procedure the present Board will come up with suggestions before the Bratislava PPC.

TEPSA  looks forward to even more cooperation in the near future, in the PONT and the FEUTURE projects and beyond.

Wolfgang Wessels, Chairperson of the Board

Jaap W. de Zwaan, TEPSA Secretary-General

Editorial TEPSA Newsletter July 2015:”The Greek people deserve our support”, by Prof. Jaap de Zwaan, TEPSA Secretary General

EditorialThe Greek referendum which was held on 5 July has been severely criticised. The question put to the people was not well drafted, the reference to an agreement reached with creditors in Brussels was not correct, etc. etc.

In the meantime the outcome of the referendum is known, it is a clear ‘no’. At the time of writing of this Editorial nobody exactly knows what the follow-up will be.

Now, whatever the consequences will be for the continuation of the negotiations in Brussels respectively for Greece’s position as a Euro zone country, so much is clear that a lot has to be achieved in order to make the Greek economy healthy again.

Certainly, the Greek government bears the main responsibility here. It has to introduce reforms and budgetary restrictions, to carry through privatisations, to amend several social policies and to combat corruption as well as tax and capital evasion.

However, the European Union as well as its Member States also bear a responsibility for what has happened. Indeed, we have accepted Greece as a Euro zone member. We have allowed each Member State to develop its own policy in all vital domains of the economy, such as employment, social security, income, taxation and pensions. All this, without a degree of surveillance being exercised. It was only when the crisis broke out, that efforts to coordinate national policies have been undertaken. In short, the European Union – in practice its Member States – have failed to implement the ‘E’ of the EMU, so the Economic Union.

The European Union and its Members States must therefore help to overcome this crisis. In the past Member States have always adopted rigorous measures when national sectors – agriculture, coal mines, textiles, shipyards etc. – were put at risk. We also have actively contributed to overcome the situation of backwardness of the economies of most new Members States of Central and Eastern Europe. Indeed, our public authorities as well as our business people have made massive investments in these countries, the outcome of which has resulted in a ‘win-win’ situation. So, why not help Greece?

Again, the Greek government bears a crucial responsibility here. The government also has to provide for political stability in the country and confidence on the market so that foreign investors will be tempted to effectively spend their money in Greece. That said, other Member States can – and should- -do more. We should not accept that the Greek economy – and in the end the Greek society as a whole – will be disrupted.

A serious factor here certainly is related to the geographic and strategic position of Greece in the Mediterranean. Think at the security tensions between Russia and Ukraine, and the consequences of this conflict for NATO. Think also at the dramatic influx of refugees coming from Africa, Syria and Asia who try to reach the European coasts, among others in Greece. However, a perhaps more important factor concerns the principle of solidarity. Indeed, it is high time to feel at one with the Greek population, so the ordinary citizens in that country.

Jaap W. de Zwaan

Editorial TEPSA Newsletter April 2015: “The tragedies in the Mediterranean and the European Neighbourhood Policy”, by Secretary General, Jaap W. de Zwaan

334px-EU_European_Neighbourhood_Policy_states.svgThe human tragedies taking place in the Mediterranean shock the world. Recently new forms of barbarism, where immigrants were kept imprisoned in non-seaworthy boats and drowned after capsizing, came to light. Immediate reactions and actions are expected, more particularly from the European Union.

EU Ministers of Foreign and Home Affairs have adopted a ten-point plan in their meeting of 20 April. This plan has been confirmed at a special meeting of the European Council on Thursday 23 April. One of the agreed measures relates to cooperation with third countries, in particular Libya, where many people trying to flee to Europe often start their travel.

When referring to cooperation with third countries, the question arises whether explicit mention should not be made more generally, of the European Neighbourhood Policy (ENP). Indeed, ENP covers all states surrounding the Mediterranean (and Eastern Europe). In this case, however, the reference obviously is to the ENP countries of the Mediterranean: Morocco, Algeria, Tunisia, Egypt, Libya, Syria, Jordan, Lebanon, Israel and Palestine.

The EU has for a long time – itself being preoccupied by the economic crisis – somewhat neglected its relations with the Mediterranean countries concerned, several of them being former colonies of Member States. For a long time we have underestimated the relevance of good relations with that neighbourhood for our own stability and security.

Now, measures to cope with the influx of immigrants coming from Africa (and Asia) could be integrated in a comprehensive and integral policy regarding these Mediterranean ENP countries. Here we may think – in the first place – of rescue operations and measures to combat international crime (human trafficking, corruption, fraud, blackmail and the like), but also of measures how to prevent people to leave their homes, region and country (by rendering assistance in the process of reconstruction after conflict, other forms of development aid, making of investments and the like). Neighbourhood countries may also help by creating ‘safe havens’ on their own territory, where immigrants can submit their applications for asylum or, in the case in question, a residence permit, meanwhile profiting from protection provided by the host country.

Of course we must realize that nearly all Mediterranean countries involved suffer from the consequences of the Arab Spring, now better to be referred to as an Arab Winter. Indeed, many of those countries are politically unstable and find themselves in a vehement process of transformation. However, after a long period of neglect they anyhow require more attention from our side that has happened in the past.

So, there are enough reasons to integrate a discussion and, more importantly, concrete actions on – how to cope with the tragedies in the Mediterranean and the underlying problems in the countries of origin – in the broader context of the EU Neighbourhood Policy. In that framework all sorts of relevant measures may be discussed and adopted in a comprehensive manner: on the one hand assistance for a better system of governance/democracy and trade arrangements/privileges for the ENP countries concerned, on the other hand common actions to combat human trafficking and other forms of international crime.

An adequate implementation of all intentions mentioned will not only provide useful contributions to solve the tragedies at stake, they will also serve our own interests: safety and security in Europe. Furthermore such a more active approach can revitalize a policy domain – ENP – which was only modestly developed during the last couple of years. Last but not least, it will position the European Union as a credible global player in that other part of the world, our neighbourhood.

It is up to the Commission to take first steps in this area. There is no time to lose.

Jaap W. de Zwaan

Secretary-General TEPSA

Editorial TEPSA Newsletter February 2015: “Speaking with one voice”, by Prof. Jaap de Zwaan, TEPSA Secretary General

EUIt was the German Chancellor, Merkel, who developed initiatives to put an end to the violence in Eastern Ukraine. It was her, Merkel, and Hollande who went to Minsk and Moscow for the diplomatic talks. Who did they represent, their countries or the European Union as such? Anyway, at least initiatives were developed from the European side. That is positive.

That being said, the question of course arises why Tusk or Mogherini didn’t go. Because, they respectively do represent the European Union at the highest political level (Tusk as President of the European Council) and have a mission to act at ministerial level on behalf of the European Union in foreign policy contacts with third countries and international organisations (Mogherini as High Representative).

Whereas the Commission generally speaking plays a useful role – and is also accepted by third parties – as negotiator and representative of the European Union and the Member States when Union competences are at stake (the reference here for example is to Malmström and the TTIP negotiations), the same is apparently not true when the subjects’ matters essentially concern national competences. In such cases we apparently don’t trust too much the structures we have created ourselves, but prefer to designate somebody who can exercise real influence on the negotiations in question.

Is that a problem? Yes, to a certain extent it is. Because it took a while before the new functions of Permanent President of the European Council and High Representative for Foreign Affairs and Security Policy were created. Now we have them, one could argue, we should also profit from them.

Now, practice shows that the new models, developed in times of peace, are in fact suited to be applied –indeed- only in times of peace. As Herman Van Rompuy has demonstrated, they are also appropriate to be practised when (serious) internal problems of the Union and/or the Member States have to be dealt with. The economic crisis is such an example. Indeed, no one has contested Van Rompuy’s capabilities not only to chair the meetings of Heads of State and Government, but also to find compromise formulas at the right time. However, when serious foreign policy and defence issues are in discussion, thus domains where essentially Member States are the competent authorities, we are looking for a heavy weight, by preference a sitting Head of State and Government, to do the job. A personality whose involvement may have a real impact also on the third parties involved in the negotiations. Like Merkel in the case of the Minsk agreement.

In this respect one may wonder whether for conflicts in (French speaking) Africa it would be Hollande to be best placed to represent the European Union during peace negotiations, or Cameron when conflicts might occur in the English speaking Western world, or Rajoy in case of problems in the Spanish speaking part of Southern America.

If that’s the way the European Union can best function when foreign policy or defence issues are at stake, so be it. At least it helps to provide the European Union with the status of a real global player. Such an evolution clearly represents a European interest.

Photo source: theguardian.com

Editorial TEPSA Newsletter November 2014: “European Parliament and National Parliaments: partners or competitors?”, by Prof. Jaap de Zwaan, TEPSA Secretary General

images52J3E3P3It is clear that the primary responsibility with respect to the representation of citizens’ interests in the EU decision making process lies with the European Parliament. Indeed, the EP is directly elected, acts as co-legislator in the legislative process of the EU and possesses full-fledged budgetary powers. On the contrary, national parliaments are first and for all responsible to control the activities of their national ministers in the Council.

During recent years, however, the role of national parliaments in EU policy making has been strengthened. Notably the Lisbon Treaty has given a strong impetus in this respect. In Article 12 TEU, the different contributions of national parliaments to EU policy making are listed. Furthermore the First Protocol annexed to the Lisbon Treaty deals with information to be provided to national parliaments regarding recent policy developments, as well as with COSAC, the forum for interparliamentary cooperation within the Union. The Second Protocol describes the role of national parliaments in the process of application of the principles of subsidiarity and proportionality (the so-called ‘yellow’ and ‘red’ card procedure).

In this way the EP and national parliaments have their own, but strictly separate, responsibilities with regard to the further development of the integration process.

Now, both parliamentary branches would be wise to realize that, as directly elected instances, they both do represent the interests of the same citizens. These are common interests which they have to serve, each from their own perspective. In this process both levels, the national and the European one, should try to develop a, as much as possible, coherent approach.

The legitimacy of the EU decision making process for example would be well served if both parliamentary branches start to cooperate in a more structural and intensive way compared to what is happening today. So national parliaments could invite committees of the EP to come over to their member states in order to discuss -in the national parliament concerned- day to day business in the policy field in question. National parliaments also could organize periodically public hearings or debates in their member states about topical issues for which they invite, apart from relevant stakeholders and the media, individual members of the EP. Similar initiatives could be taken with regard to political groups of the EP respectively individual members of those groups.

Similar initiatives of course can be taken by the European Parliament with regard to their national counterparts. However, in view of the fact that the EP is the natural and fully competent participant in the EU decision making process, initiatives should originate in the first instance from national parliaments.

Equally national parliaments should position themselves -in contacts with their constituencies and electorate- much more than happens today as part of an international layer of government, in this case, the European Union. Because, indeed, national parliaments are on a daily basis engaged with legislation and other policy issues having a European background. What is urgently needed here is more ‘outreach’ to the ordinary citizen.

One of the major -and structural- problems the European Union is confronted with these days, concerns the ‘distance’ between the citizen and the European Union as well as the transparency and legitimacy of the EU decision making process. By cooperating more closely, the European Parliament and national parliaments should be able to bridge that gap, at least partially.

Photo source: presstv.ir

Editorial TEPSA Newsletter September 2014: “The Neighbouring Policy of the European Union: it is Soft Power that is needed!”, by Prof. Jaap de Zwaan, TEPSA Secretary General

Map editorialIn a period of ten years the geopolitical situation at the external borders of the European Union has completely changed. Of course, the Israeli-Palestine conflict unfortunately is a lasting one, during the last decade the situation has in fact only worsened. However, apart from that central problem, a lot of unrest and conflicts have occurred in our neighbourhood. First the invasion in Iraq. Then the Arab Spring which has become an Arab Winter if not worse. The revolution resulted in an unstable Arab world, giving rise inter alia to a civil war in Syria which is now out of control. It also paved the way for a Northern Africa in transformation (Tunisia, Libya, Egypt and recently also Algeria where a French tourist was murdered by a terrorist group). Since a couple of years, we furthermore experience a massive influx of migrants and refugees coming from Northern and Central Africa, looking for a better future notably in Europe. Recently the cruelties of IS in Iraq and Syria have only added to the disasters and dramas which already took place in that region.

This year, also the border between Ukraine and the Russian Federation was unilaterally modified by Russia: an unprecedented violation of the territorial integrity of an independent state in Europe’s recent history. As a consequence, the relationship between the EU and the Russian Federation is now full of tensions, whereas the Union is faced with a weakened Ukraine at her Eastern external borders.
This being so, one has to recognize that the last ten years the EU has more or less neglected the relations with her neighbours. The enlargements of 2004, 2007 and 2013 as well as the economic crisis kept us busy. Moreover our approach with regard to the new Eastern neighbours (ENP, Eastern Partnership) is a rather artificial one. In the course of the negotiations to conclude an association agreement, the EU requires them to implement our norms, values and policies. However, the new neighbours -although clearly European states- are not allowed to become new inhabitants of our common house, if it is only in the long run. Such an approach appears to be contradictory and has to change. Peace and security on the European continent requires us to develop a new policy.

We should start to fully exercise our Soft Power capacity in our relations with all our neighbours, whether in the East or in the South. First of all humanitarian aid has to be provided where necessary. Then assistance is needed in the process of reconstruction and institution building, including the setting up of independent judiciaries. We must also support economic reforms and democratic changes. Apart from that, the development of people to people contacts and academic cooperation has to be stimulated. Student and youth exchanges as well as internship programs should be developed. Of course preliminary conditions and requirements also have to be set: notably the firm aspiration of the neighbour in question to strive at democracy, respect for human rights and the rule of law.

At a certain moment this approach has also to be applied in the contacts with the Russian Federation. Because, whether you like it or not, Russia is an important neighbour of the EU. The development of stable relations with that country can only contribute to stability on the whole European continent. In that context it can also facilitate the intensification of our contacts with former Soviet Republics: Ukraine, Moldova and Belarus, as well as in the Southern Caucasus: Armenia, Georgia and Azerbaijan. As to the energy sector, an interdependence between Russia and the EU does already exist. However, in the future Russia may also become an important market for our small-, medium-sized and big companies. Moreover well-developed people to people contacts are more than welcome. Be that as it may, first of all satisfactory solutions for the outstanding military, political and economic problems in Ukraine have to be found.

So, an innovated neighbourhood policy has to be developed in the coming period as a priority of EU policy, in the interest of peace and security on our European continent. For that purpose initiatives are to be expected in the first place from the European Commission: a new but challenging responsibility of the new commissioner for Neighbourhood Policy and Enlargement Negotiations, Johannes Hahn!

Picture source: http://eeas.europa.eu/enp/images/enpmap-web-big.gif

Call for papers “The rise of political extremism in and out of parliaments”. 1st PADEMIA Workshop, Thessaloniki, 2-3 October 2014

Logo-PADEMIAMemories of the 1930s inform much contemporary political commentary on the impact of economic hard times on political extremism. Indeed, support for anti-system parties –defined as explicitly advocating the overthrow of a country’s political system– has been considerably growing during the period of financial crisis culminating in extreme right-wing parties’ gaining parliamentary representation, while new modes of non-electoral protest, with a clear anti-parliamentary rhetoric, have recently become common in many European countries. This workshop will: (a) present empirical research on the rise of extremism in and out of parliaments; (b) test theoretical interpretations of this rise on the grounds of difficult economic conditions against other sets of explanations which have been suggested; (c) identify similarities between those different expressions of extremism –in or out of parliaments– as far as their political discourse, mobilization forms and communication framing are concerned.

Please express your interest in presenting a paper in the workshop by sending an e-mail to workshop co-ordinator, Iannis Konstantinidis, at icons©uom•edu•gr . An abstract of no more than 200 words should be attached to this e-mail message. Deadline for submission of abstracts: 25th August 2014.

Please note that all participants’ travel costs and accommodation will be reimbursed by the hosting university.

Editorial TEPSA Newsletter April 2014: “Democracy in the European Union: The importance of the European elections”, by Prof. Jaap de Zwaan, TEPSA Secretary General

All along the existence of the European Union -and its predecessor organisations- the question has been raised whether the EU decision making suffers from a democratic deficit. In fact without a lot of debate this question was always answered in the affirmative.

These days there are good reasons to argue that the decision making process at the European level is a democratic one.

Up to the eighties of the last century the European Parliament was referred to as an ‘assembly’, not as a parliament. In that period the parliament essentially possessed the right to deliver opinions in a certain number of policy areas. Since the end of the seventies, however, developments have gone fast. In 1979 the first direct election of the European Parliament members took place. The European Single Act (entry into force in 1987) introduced the cooperation procedure. The Maastricht Treaty (1993) improved the working of the cooperation procedure and added the co-decision procedure. The Amsterdam Treaty (1999) (abolished the cooperation procedure and) transformed the co-decision procedure into a properly speaking co-legislative instrument: without agreement between Council and European Parliament a decision cannot be adopted.

Finally but not least, the Lisbon Treaty (2009) widened the scope of application of the co-decision procedure and reinforced the competences of the parliament in the external domain (the competence to give consent). Furthermore, the treaty introduced the institutional innovation according to which the European Council, when proposing a candidate for President of the Commission, has to take into account the elections to the European Parliament. The candidate is then elected by the European Parliament. The Lisbon Treaty also produced two protocols on the role of national parliaments, one of which concerned the application of the principles of subsidiarity and proportionality.

Even if one takes into account the innovations brought by the Lisbon Treaty, still certain issues have to be settled regarding the working of the European Parliament. The first issue concerns the objection that, in the absence of a European ‘demos’, the parliament cannot pretend to represent the European citizens. Secondly there is the argument that the scope of the co-decision procedure –referred to in the treaties as the ‘ordinary legislative procedure’- is not as yet an absolute one. Furthermore criticism –expressed in practice by the highest constitutional judge in Germany, the Bundesverfassungsgericht- can be made regarding the composition of the parliament in view of the fact that during the elections once in five years the principle ‘one man one vote’ is not respected. The next point is related to the fact that the European Parliament, differently from an ordinary parliament, does not dispose of a -formal- right of initiative regarding policy making. And, additionally concerns are expressed regarding the lack of visibility of the members of the parliament (people hardly know members of the parliament) respectively the lack of transparency of their work.

Now, certainly it is true that -at least for the moment- a European demos does not exist. However, is that a real problem? In the context of the European Union cooperation the focus is more on Member States and the peoples of the Member States (Article 1 TEU refers to the ‘peoples of Europe’). That being the case it is difficult to criticize the existence of a parliament which operates in the interest of all these peoples. Then, indeed the scope of application of the co-decision procedure is not as yet an absolute one: a few policy domains, such as the common foreign and security policy, are not covered by this ‘ordinary’ decision making procedure. However, it may be expected –in conformity with the gradual character of the integration process- that this defect will be solved in the future, for example at the occasion of a next treaty amending procedure. As to the composition of the European Parliament, it is fair to say that the working of an international organisation (which the EU essentially is) cannot be fully compared with the functioning of a state. In that context there does exist a justification that, at the European level, the (federal) principle of equality of states has been preferred over the one regarding complete equality of their citizens, for example with regard to voting power. More particular it is the principle of ‘degressive’ proportionality which is of application -between the Member States- during the European elections.

Furthermore, it is true that the European Parliament does not possess a proper right of initiative regarding policy making. In view of the supranational characteristics of the EU cooperation the responsibility concerning the initiation of policies essentially rests with the Commission. The choice to make the Commission, the institution taking care of the general interest of the Union, responsible for the initiation of EU policy making, is an original one –in fact it is one of the foundations of the Schuman philosophy- which so far has proven to be effective. That being said, according to Article 225 TFEU the Parliament may request the Commission to submit an appropriate proposal on which it considers that a Union act is required. However, as is well known, the Commission is not obliged to give a positive follow-up to such a proposal. Finally, the observations regarding the lack of transparency and visibility concern more the legitimacy of the work of the parliament than that they demonstrate a problem regarding the democratic character of that work. That being said, of course something has to be done to overcome these objections. Here we touch upon the responsibility of a number of parties, such as the members of the European Parliament themselves, national politicians (members of national governments and members of national parliaments), but also the citizen him/herself who indeed can find easily numerous sources of information about EU activities on the internet.

So, as to all the objections and observations expressed an adequate answer can be provided.

If one then further analyses the working of the integration process globally speaking, one can establish that the Member States still play an essential role in policy making, as the architects of the treaties (‘Die Herren der Verträge’) and members of the European Council and the Council. On the other hand the Commission, in the interest of the European Union as a whole, performs the single and unique role as exclusive and independent policy initiator.

The directly elected European Parliament does represent the citizens of all Member States when being involved in the legislative process, the development of the EU external policies and the establishment of the EU budget. During the exercise of these responsibilities the European Parliament acts on equal footing with the Council, which means that without the agreement of the parliament no decision can be taken in these areas.

Finally but not least, national parliaments are in a position to control the activities of their ministers at the European level while also being able to survey the application, by the EU legislator, of the subsidiarity principle.

All in all it appears that the EU decision making process is composed of elements representing a careful balance between the interests of the European Union and the Member States on the one hand, and the interests of the citizens of the Member States on the other. In this process the European Parliament exercises important and typically parliamentary prerogatives.

The way this overall process functions in practice can be qualified as democratic, efficient and effective. At least hardly arguments are available to convincingly demonstrate that the process is undemocratic in character.

For all those reasons one only can hope that during the European elections of 22 to 25 May a high turnout will be achieved. The parliament deserves our vote!

Jaap W. de Zwaan
TEPSA Secretary-General

Editorial: National parliaments: a review of the implementation of the protocol on subsidiarity and proportionality

yellow-card-uefa-euroby Jean-Paul Jacqué

The Protocol on the application of the principles of subsidiarity and proportionality enables national parliaments to take a decision according to the formula of subsidiarity during the review of proposals of the Commission. Following the Protocol, the Commission must review its proposal when national parliaments via one third of the votes allocated to them issue a reasoned opinion stating why the national députés consider that the draft in question does not comply with the principle of subsidiarity (‘yellow card’). If more than half of the votes of the national parliaments issues such an opinion, the Commission is obliged to not only reconsider its proposal, but the Parliament and the Council must each decide by a specific vote on the respect of subsidiarity (‘orange card’).

Initially it has been questioned whether national parliaments would be interested in this process. An assessment of the current situation shows however that there has been a shift. According to the 2012 report of the Commission on the relations between the European Commission and national parliaments,[1] the latter have addressed 663 opinions to the Commission in 2012, of which 509 dealt with legislative texts. Among them, only 70 related to 23 Commission’s proposals constituted issues regarding explicitly subsidiarity.[2] More importantly, the year 2012 witnessed the first use of the ‘yellow card’ concerning the proposed regulation called “Monti II”.[3] Based on the legal basis of Article 352, this proposal drew the consequences of the Laval[4] and Viking[5] case law in determining the relationship between the fundamental right of workers to take collective action, including industrial action and strike action, and the freedom of provision of services. It stated that these freedoms respected the right to strike and to take collective action. It also required the establishment of extrajudicial mechanisms to solve conflicts especially in case of the ones of a cross-border nature. More importantly, in case of judiciary regulation, it called upon national courts to assess, following the proportionality principle, if a collective action would not go beyond the objectives pursued. It was thus about a codification of the jurisprudence of the Court of Justice of the EU.

For the first time, the necessary threshold of reasoned opinions to initiate the ‘yellow card’ procedure was reached. Twelve reasoned opinions representing nineteen votes were addressed to the Commission, so the threshold set at one third of the votes was exceeded by one.[6] In fact, the objections were rather related to the question of EU competence than subsidiarity as such. Most reasoned opinions opposed the European Union to regulate the right to strike. These opinions were based on the fact that Article 153 TFEU excludes the right to strike from the Union’s competences in the social domain. These opinions therefore assessed that such a prohibition could not be circumvented via the flexibility clause of Article 352 TFEU. In addition, some parliaments assessed that the proposed measure consisted of a harmonization which is prohibited under Article 352, paragraph 3, in areas where the Treaty excludes it. Basically, instead of a dispute on subsidiarity, the national parliaments rejected the Court’s argument that Article 153 cannot help to solve interactions between fundamental freedoms and the right of collective action. However, according to the Court, if a regulation under national jurisdiction conflicts with a fundamental freedom, the matter falls within the scope of Union law. This does not mean that the EU can regulate the right to strike, but it is competent to intervene to ensure that the right to strike does not jeopardize the functioning of the internal market.[7] Yet some parliaments, including the French Senate,[8] wanted to suspend this functional interpretation of Union’s competences based on the internal market.

The Commission re-examined the proposal, as stipulated in the ‘yellow card’ procedure, and concluded that the principle of subsidiarity was respected. It justified the use of Article 352 by the prohibition contained in Article 153, but followed the position of the Court that the interactions between the right of collective action and fundamental freedoms fall under the scope of Union law’s application. When it comes to a situation which member states cannot solve independently, given its cross-border nature, European interference is justified under the principle of subsidiarity. Nevertheless, the Union has withdrawn its proposal for political reasons, considering that it would not receive the needed political support in Parliament and Council.[9] This precedent shows that, in the future it will be difficult to act against the objections represented by one third of national parliaments’ votes because it will be unlikely to get a majority in Council and possibly in Parliament. The “Monti II” case has an important symbolic value as first use of the ‘yellow card’. Yet this hasn’t altered the situation significantly, since – with the absence of regulation – it leaves the scope open to the application of the Court of Justice jurisprudence. The absence of positive integration leaves room for uncertainty of negative integration. This precedent also shows that the approach of national parliaments on subsidiarity is far from following a strict legal line. Instead, the invocation of subsidiarity is used as an instrument to fight a legislative proposal that is deemed inappropriate whatever the real reason is.


 

[1] Report of 30 July 2013, COM(2013)565 final.

[2] After the Monti II proposal (12 reasoned opinions), the proposal for a regulation on the Fund for European Aid to the Most Deprived elicited the second highest number of reasoned opinions. Eight other proposals elicited three reasoned opinions each. This trend seems to confirm the varying political interests of national Parliaments, which follow different priorities when choosing Commission proposals to be scrutinised in the context of the subsidiarity control mechanism and apply different criteria when assessing compliance with the principle of subsidiarity. This means that coordination among them remains a challenge (source: Annual Report 2012 on Subsidiarity and Proportionality, 30 July 2013, COM (2013) 566 final). In the list of the most active chambers, the Swedish Riksdag comes first (twenty reasoned opinions), followed by the French Senate (seven reasoned opinions) and the German Bundestag (five reasoned opinions).

[3] Proposal for a Council Regulation on the right to take collective action in the context of freedom of establishment and freedom to provide services COM/2012/0130 final.

[4] Case law of 18 December 2007, C-341/05.

[5] Case law of 11 December 2007, C-438/05.

[6] In a bicameral system each parliament has one vote, in a unicameral system the parliament has two votes. The breakdown was as follows: SE Riksdag (2 votes), DK Folketing (2 votes), FI Eduskunta (2 votes), FR Senate (1 vote), PL Sejm (1 vote), PT Assembleia da República (2 votes) LV Saeima (2 votes), LU Chamber of Deputies (2 votes), BE House of Representatives (1 vote), UK House of Commons (1 vote), NL Tweede Kamer (1 vote) and MT Kamra tad-Deputati (2 votes).

[7] This is a classical approach. For example, when the Treaty contained no provision on data protection, the directive on this issue was adopted not because the Union has acknowledged a specific expertise in data protection or human rights, but because the differences between national laws prevented the proper functioning of the internal market.

[8] French Senate’s proposal for a European Resolution on reasoned opinion of 25 April 2012:”Article 153, paragraph 5, of the TFEU categorically excludes the right to strike from the competences that may be subject to an action by the Union, a fortiori, harmonization. The argument provided by the European Commission according to which the Court of Justice of the European Union’s cases law shows that Article 153 does not apply to the right to strike, is not admissible. It does not mean that the right to take collective action is excluded from the scope of Union law; it consists in depriving the effectiveness of this limitation clause since almost no field can be considered as abstruse to European Union law. The use of Article 352 hasn’t sufficient grounds.”

[9] According to the statement of the spokesman of the Commission at Europaforum.lu “The Commission can confirm that it has initiated the process of withdrawal of the proposal. The legal assessment of reasoned opinions elicited by national Parliaments as part of the ‘yellow card’ did not lead to the conclusion that the principle of subsidiarity has been violated. But the Commission followed the political debate on the draft regulation. This is an assessment of policy responses in the European Parliament and the Council which led the Commission to conclude that the proposal would not receive the necessary political support for its adoption. A vote of approval by the European Parliament and a unanimous agreement of the Member States would have been needed.”