NATIONAL AND REGIONAL PARLIAMENTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Vol. 16 No. 12 (December, 2006) pp.998-1001

NATIONAL AND REGIONAL PARLIAMENTS IN THE EUROPEAN CONSTITUTIONAL ORDER, by Philipp Kiiver (ed). Groningen: Europa Law Publishing, 2006. 132pp. Paper. €36.00/$58.00. ISBN: 9076871639.

Reviewed by Mark Welton, Department of Law, United States Military Academy. Email: Mark.Welton [at] usma.edu.

The rejection of the proposed European Union constitution by French and Dutch voters in 2005 gave the EU member states reason to pause and reflect on the speed and direction of deeper integration within the EU. Nevertheless, the demise of this “grand” constitutional project has not halted the daily integrative processes that continue to characterize the European social, political, and legal landscape. The eight well-written and accessible essays that comprise this book, edited by Philipp Kiiver, attest to the increasingly important role of national, local and regional legislatures in the context of European integration, a role that was previously often overlooked but, as demonstrated by this book, clearly deserves attention.

The proposed EU constitution confirmed the importance of subsidiarity as an integral part of the European project. That idea, officially expressed in the Treaty on European Union, that rules and actions within the EU should be taken at the lowest feasible level (as close to the citizens as possible), is now understood to require greater recognition of and participation by national, local and regional legislative bodies in EU activities, as compared with governmental bodies, and especially in matters regarding proposed directives, regulations, and other legislation. How this can be achieved within the various constitutional and political frameworks of the current (and in one case potential) member states, and some of the practical issues that arise from it, constitutes the main theme of the book.

Examination of four states – the United Kingdom, Belgium, the Netherlands, and Croatia – comprise the core of this essentially comparative study. First, however, Kiiver’s introductory essay describes three themes that characterize the analysis of each of these states. These are the importance of the regional dimension of European parliamentarism, with multiple links between law-making institutions of member states (including sub-national parliaments) and EU decision-making entities; recognizing that national parliamentary participation in EU decision-making often extends beyond the “traditional” role of demanding domestic ministerial accountability; and understanding the European treaty-drafting practice must be reassessed to account for the variety of national and sub-national structures within the member states. Overall, these themes are adhered to and elaborated on in the subsequent analyses.

Three contributors look at the role of the UK parliaments and their relationship to the EU. Adam Cygen emphasizes that holding government ministers accountable for their EU-level decisions has been the primary concern of the UK Parliament, leading to an emphasis on [*999] securing documents in a timely manner and enforcing adequate scrutiny procedures before decisions are made. While the effect of parliamentary scrutiny on increased governmental accountability for EU matters is difficult to assess, Cygen concludes that it has required greater discipline by government ministers, has resulted in increased transparency of the EU legislative process for British citizens, and has in fact led to changes in the process or content of proposed legislation.

Building on this theme of accountability, Gordon Heggie’s essay on the Scottish Parliament explains that, with no formal national role for that body in EU affairs after devolution, the idea of “partnership” has been crucial to ensuring timely receipt from London of information on proposed EU initiatives, as well as permitting input by the Scottish Parliament regarding EU issues both through the UK Parliament and within networks of other sub-national and regional bodies outside the UK. He concludes that this partnership arrangement has worked reasonably well; the Scottish committees responsible for EU matters have generally received adequate and timely information from the national government. Moreover, while direct Scottish parliamentary links to the EU have been informal and quite limited, new links with other legislative bodies have been formed and work effectively. For example, successful ties have been forged with the Flemish, Catalan and certain German Land parliaments to discuss EU issues, especially within the framework of the Trans-European Network of Regional Parliamentary European Committees (NORPEC), a forum designed for the exchange of ideas and sharing of information. Overall, and despite the continued need for more streamlined procedures, the Scottish Parliament has been satisfied with its ability to provide meaningful input into EU decision-making at the national and regional levels.

In her short rejoinder to these two articles, Caitríona Carter generally concurs with the findings of the previous two authors. However, she suggests there is a need for new research areas and strategies to understand better how changing parliamentary politics affects subsidiarity, and whether that principle is advanced by the changes taking place within the EU and at the national and sub-national levels. In particular, deeper investigation into the variety of factors (such as resources and organizational capacities) that can affect sub-national and regional parliaments’ abilities to engage with EU matters would be useful.

According to Wouter Pas, in contrast to the UK, Belgium presents a case of extreme federalism, in which various sub-national governmental entities possess extensive exclusive powers, both domestically and internationally. Fortunately for the reader, his short introduction to Belgian federalism clarifies the complex interrelationships between the national, regional, and community legislative bodies and their powers, noting that there is no doctrine of federal supremacy, and only limited areas of concurrent powers. The system operates on the basis of an elaborate [*1000] pattern of cooperation agreements, which weakens the role of the national and other parliaments in EU-level affairs. At the same time, Belgian federalism presents problems for the EU, as evidenced by the EU constitutional treaty process, which required revision in the treaty language to accommodate the co-equal status of the national and subnational Belgian parliaments. It remains to be seen whether proposed internal cooperation agreements that were drafted in contemplation of the EU constitutional treaty will be effective on the EU level in the future.

Olaf Tans explains why the Dutch, normally considered among the most internationally-inclined and pro-EU people in Europe, voted to reject the constitutional treaty by focusing on the overlooked role of the Dutch Parliament in the EU constitutional process. The parliament reflected popular disappointment over several outcomes from the drafting process. First, a number of provisions seemed to favor big-state dominance within the EU. Second, there had long been public indifference to the EU and its activities that gradually transformed into “negative” feelings, and, despite parliamentary and governmental support, was reflected in the negative outcome of the subsequent popular referendum on the constitutional treaty. On the other hand, the process did energize the parliament to assert its role as “watchdog” over the two key principles of subsidiarity and proportionality, and there was extensive agreement across party lines on the value of these efforts. Overall, the negative outcome of the treaty process in the Netherlands has had the positive outcome of raising critical awareness of the EU both among the populace and within the parliament.

In his valuable analysis of a state not yet a member of the EU, Siniša Rodin discusses two historically-rooted practices by the Croatian parliament – the ‘authentic interpretation of laws,” and the stringent control of governmental action – that must be changed before Croatia will be able successfully to integrate into EU decision-making structures and processes. The former gives the parliament the power to interpret laws, which can be retroactive, and is binding on courts (even in pending cases). This rather extreme form of parliamentary supremacy poses potential conflicts with the interpretation of EU legislation by the European Court of Justice, and raises questions concerning the direct applicability of EU legislation in Croatia. The second practice, limited control by parliament over the exercise of the government’s external relations powers, is not itself an impediment to Croatian membership in the EU. However, the constitutional scope of the government’s powers in external and European matters requires better definition, while the parliament’s supervision over executive activities in such matters also needs clarification and expansion. This will require not only new legislation, but education, discussion, and communication within Croatian society, in order to change the normative and historical roots of the current parliamentary practices.

The concluding contribution by Leonard Besselink offers two paradigms for [*1001] understanding and shaping the role of national parliaments within the European constitutional order. The first and now prevalent one is a “multilevel’ paradigm, in which each level of responsibility and power – local, regional, national, and European – is distinct and exclusive. Within this paradigm, the scrutiny exercised by parliaments over proposed European legislation limits the power of those parliaments to the national level. EU decision-making is thus constrained along national rather than partisan or cross-boundary lines. The second paradigm may be labeled “polycentric” and encompasses a European constitutional order comprised not only of the EU institutions but the member states as well, including their parliaments. Besselink suggests that the constitutional treaty should be read as promoting this second paradigm, which consequently should increase the democratic legitimacy and accountability of the EU. Adopting a polycentric paradigm should lead to future research focusing on the potential for greater involvement of national and other parliaments in EU decision-making, and improved mechanisms for scrutiny and other types of involvement in EU activities by the various parliaments of the member states.

It is evident from these essays that there is a wide variety of informal and formal relationships and arrangements between the EU and the national and sub-national legislatures, as well as within the constitutional frameworks of the various current and prospective member states. With a renewed focus on accountability, institutional operations, and subsidiarity that was reflected in the EU draft constitution, which did not disappear after its rejection, it is evident that national, sub-national and regional legislative bodies within the EU will assume an increasingly important role in EU activities. This book provides valuable perspectives on this subject, and should be read by anyone interested in the future of European integration.

*************************************************