From the Early Warning System to a “Green Card” for National Parliaments: Hindering or Accelerating EU Lawmaking?

From the Early Warning System to a “Green Card” forNational Parliaments: Hindering or Accelerating EU

Lawmaking?

Karolina Borońska-HryniewieckaPolish Institute of International Affairs

Paper presented at PADEMIA Annual Conference Brussels 2-3 July, 2015

(first draft, do not quote – feedback welcome)

Abstract

While the Treaty of Lisbon formally equipped nationalparliaments (NPs) with powers to scrutinise EU legislation,five years down the line there is still little satisfaction asregards parliamentary engagement in EU affairs. Due to itsnarrow scope, the early warning system of subsidiarity controldoes not guarantee the desired influence of NPs at the EUlevel. Moreover, the Fiscal Compact and the European StabilityMechanism have further weakened parliamentary leverage ineconomic and fiscal governance. They have also exacerbatedinstitutional distrust between domestic and EU institutions anda sense rivalry between NPs and the European Parliament (EP).In this context, the “green card” (GC) initiative has beenendorsed by several national parliamentary chambers includingthe British House of Lords, the Danish Folketing and the DutchTweede Kamer. The GC foresees a way for a group of NPs to makeconstructive suggestions for EU policy initiatives, or forreviewing and repealing existing EU legislation.

This paper analyses the GC proposal in view of itspotential repercussions for inter-institutional and intra-institutional relations in the EU. It argues that grantingnational parliaments the right to propose EU legislation willnot automatically increase EU democratic legitimacy. While - inprinciple - the GC is a positive project, its current form andscope might actually prove counterproductive by challenging the

established EU legal framework and governance arrangementsbetween NPs and the EP. Consequently, the paper proposes toreframe the GC initiative in a more pragmatic way by changingit into a two-directional feedback loop between the EP and NPsbased on a systematic sharing of information related to the EUlegislative process (on the side of the EP) and the EU lawalready in place (on the side of NPs). Such mechanism wouldbuild on synergies between the national and EU levellegislators allowing them to enhance each other’s legitimacyand produce a more efficient and democratic legislative outputin times of executive dominance.

Introduction

Among those who perceive the European Union (hereafter EU) as aparticular type of political system1 it is widely acknowledged

1 The question of EU democratic deficit is mainly addressed within theconceptual framework of representative democracy under which the EU isviewed as a particular type of political system, comparable, yet notidentical, to this of a nation state based on a federal structure. In thissense, scholars conceptualize the EU as a quasi-parliamentary system wherethe rules of democratic accountability and representation apply (FritzScharpf, Simon Hix, Andreas Follesdal). This vision stays in opposition toviewing the EU as either a form of international/intergovernmentalorganization (Andrew Moravscik) or a regulatory state (Giandomenico Majone)which main function is addressing market failures via efficiently negotiatedintergovernmental agreements. Supporters of this vision claim that EUpolicy-making should not be considered as ‘democratic’ or ‘non-democratic’ inthe usual meaning of the term as it presents a specific form of ‘post-democratic’ governance, not analogous to the functioning of a nation state.In this sense, introducing democratic procedures at the European levelwould render EU less effective as the output of its actions would have tobe based on a compromise between political actors, and not on pareto-optimal calculations. This paper builds on the first claim and stems fromthe premise included in the Lisbon Treaty’s provisions on EU democratic

that EU governance structure suffers from a deficit ofrepresentative democracy.2 For a long time, one of the mainreasons behind this assertion was the gradual increase in theexecutive power over EU level decision-making (i.e. nationalministers in the Council and government appointees in theCommission) to the detriment parliamentary control.3 The LisbonTreaty was supposed to remedy this state of affairs bystrengthening the European Parliament (hereafter EP), extendingthe control of national parliaments over the principle ofsubsidiarity as well as boosting inter-parliamentarycooperation in EU affairs. Yet, six years down the line, thereis still little satisfaction as regards the effectiveness ofthese reforms.

The EP, though institutionally empowered, is still weak interms of its democratic representativeness and politicalleverage.4 Electoral turnout in 2014 European elections has noteven reached 43% and was the lowest ever. As regards nationalparliaments, the so-called Early Warning System (hereafter EWS)for subsidiarity control introduced by the Lisbon Treaty doesnot guarantee national parliaments the desired influence at EUlevel. In spite of its positive spillover effects such asincreased inter-parliamentary deliberation and acceleratedEuropeanization of national legislatures5 it fails to ensureadequate parliamentary engagement, and consequently input, inthe EU policy-making. Although the number of the so called“reasoned opinions” issued between 2010–2013 within the EWS hasprinciples according to which ‘The functioning of the Union shall be founded onrepresentative democracy’(art. 10.1 TEU).2 J.H.Weiler, U.R.Haltern and F.Mayer, European Democracy and its Critique,

“West EuropeanPolitics” Vol. 18, No.3, p.4-39; A.Follesdal and S.Hix, Why There is a

Democratic Deficit in theEU: A Response to Majone and Moravcsik, “Journal of Common Market Studies” Vol.

44/2006. No.3, p.533–562. 3 J. O’Brennan and T. Raunio. 2007. Deparliamentarization and EuropeanIntegration. In. National Parliaments within the Enlarged European Union, eds. J.O’Brennan and T. Raunio, 1-26. Abingdon: Routledge.4 M. de la Baume, The Parliament is bored, Politico, available at: http://www.politico.eu/article/parliament-bored-better-regulation/5 I. Cooper, A “Virtual Third Chamber” for the European Union ? NationalParliaments after the Treaty of Lisbon. West European Politics 35 (3): 441-465;K. Borońska-Hryniewiecka, Democratizing the European multi-level polity ? A(re-)assessment of the Early Warning System’ Yearbook of Polish European Studies2013 vol.16, pp. 167

gradually increased6, they have not produced proportionallymore “yellow cards”. Out of the two yellow cards issued thusfar, the “Monti II” proposal on the right to take collectiveaction was the only one withdrawn by the Commission, yet not onsubsidiarity grounds.7 The second yellow card, raised withrespect to the proposal to set up an European Public ProsecutorOffice was dismissed and the Commission maintained it. On amore general level, the main weaknesses of the EWS pointed outby national parliaments are too short scrutiny periods, toonarrow scope of the scrutiny (excluding the principle ofproportionality) as well as insufficient feedback of theCommission to parliamentary reasoned opinions. With regard tothe latter, the Commission’s responses to national parliaments’contributions tend to come late, are prohibitively brief andgive little impression of influence being exerted by them onthe EU legislative process.8

Moreover, the shift to intergovernmental decision-makingas a response to the financial crisis in the Eurozone hasmarginalized national legislatures to the benefit of theEuropean Council. Since national parliaments can issue yellowor orange cards only on draft EU legislation, the wholespectrum of non-legislative but otherwise binding EU economicdecisions remains beyond their control.9 Institutional reformssuch as the Fiscal Pact or the European Stability Mechanism,adopted outside the EU legal framework - thus outsideparliamentary scrutiny - have clearly weakened parliamentaryleverage in economic and fiscal governance. They have alsoexacerbated distrust between domestic and EU institutions whichcan be illustrated by the relations between nationalparliaments and the EP. In the field of economic governance,the latter one is very active in promoting its position as an6 The role of national parliaments in the European Union, 9th Report of Session 2013-2014, European Union Committee of the House of Lords, available at: http://www.parliament.uk/documents/Role-of-National-Parliaments.pdf7 F. Fabbrini and K. Granat. Yellow card, but no foul: The role of thenational parliaments under the subsidiarity protocol and the Commissionproposal for an EU regulation on the right to strike. Common Market Law Review2013, Issue 1, pp. 115–143.8 Conclusions from the Working Group on the yellow card held on May, 13 2015in Warsaw; Interview with representatives of the Polish Sejm and Senat (April 2015). 9 D. Adamiec, The Position of National Parliaments within the New EUEconomic Governance, Yearbook of Polish European Studies 2013 vol.16, p. 198

appropriate venue for providing evaluation of the EuropeanSemester which, in fact, affects domestic budgetary policiesconstituting traditional prerogatives of national parliaments.

Such state of affairs has encouraged some nationalparliaments to invest further in exploring new ways ofparticipation and channels of influence at EU level, notdominated by the EP. The latest initiative endorsed by severalnational chambers including the British House of Lords, theDanish Folketing and the Dutch Tweede Kamer, is the “green card”procedure foreseeing a way for a group of parliaments workingtogether to make constructive suggestions of EU policyinitiatives or for reviewing and repealing existing EUlegislation. The initiative to launch a green card procedure,deserves special attention not only in the context of thepostulates to strengthen the role of national parliaments in EUpolicy-making but also because it tells us much about theevolving inter-parliamentary dynamics in the field EU affairsrevealing paradoxes that otherwise would remain unaddressed.

Consequently, this paper analyses the green card proposalin view of its proposed formula and scope placing specialemphasis on its potential repercussions for the domestic and EUlevel inter-institutional relations. It argues that while - inprinciple - the green card is a positive and constructiveproject, its current design might challenge the establisheddomestic and EU legal frameworks as well as the institutionalbalance between the national parliaments and the EP. Whilecritical in its arguments about the, this paper builds on thepremise that if parliaments really want to have their voicesheard in Brussels, they have to persist and be pragmatic. Thepaper is structured in the following way. The first sectionexplains the “green card” procedure as envisaged by a group ofnational parliaments. Section two presents an overview of theresponses to the initiative taken from the latest COSAC report.Section three analyses the legality of the green card at theEU and domestic levels. Section four discusses the potentialinfluence of the mechanism on the institutional balance in theEU. The paper finishes with systematized conclusions and somesuggestions for the green card modifications.

The scope and nature of the “Green Card”

The idea of a pro-active, in addition to re-active,parliamentary engagement in EU policy-making has been maturingamong national legislative chambers for the last two years. Itfound one of its first formal expressions at the June 2013COSAC plenary meeting in Dublin where the Conference adoptedthe following contribution:

“COSAC considers that national parliaments should be more effectively involved inthe legislative process of the EU not just as the guardians of the subsidiarity principlebut also as active contributors to that process. This goes beyond the adoption ofreasoned opinions on draft legislative acts which may block those acts and wouldinvolve a more positive, considered and holistic view under which Parliaments couldinvite the Commission to develop legislative proposals which they believe to benecessary or to review and adapt existing proposals for specific stated reasons.”

This proposal was labelled as a “green card” procedure in the9th Report of session 2013-2014 of the House of Lords on therole of national parliaments in the EU.10 Its scope and naturewas subsequently discussed in several other contributionspublished by national chambers.11 With the change of theEuropean Commission in 2014 marked by the pledge of its newleadership to forge a stronger partnership with nationalparliaments, the latter ones have found it the right time toarticulate their postulates at EU level.

On January 19th 2015, by the occasion of a cluster meetingbetween 14 national legislative chambers and the EP inBrussels, the Dutch Tweede Kamer published a discussion paperlying out detailed conditions for the green card initiative.12

In principle, the green card should provide a means by whichnational parliaments can increase their influence on thedevelopment of EU policies and legislation via direct dialoguewith the Commission. It foresees a way for a group of nationalparliamentary chambers working together to make constructivesuggestions for EU policy initiatives, or for reviewing and

10 The role of national parliaments in the European Union, op. cit. 11 Folketing analysis available at: http://renginiai.lrs.lt/renginiai/EventDocument/6fa11f98-fc15-4443-8f3f-9a9b26d34c97/Folketing_Twenty-three%20recommendations_EN.pdf; Tweede Kamer report available at: http://www.houseofrepresentatives.nl/sites/default/files/news_items/ahead_in_europe_tcm181-238660_0.pdf; 12 The “green card” discussion paper available at: http://www.tweedekamer.nl/kamerstukken/detail?id=2015D00583&did=2015D00583

repealing existing EU legislation, including delegated orimplementing acts. The authors of the initiative envisage thegreen card to build on mechanisms already in place, that is onthe existing infrastructure of the “political dialogue”13

through which parliaments and the Commission exchange views onthe contents of EU policy proposals. According to the authors,such a solution would not require a treaty change. In linewith the Dutch discussion paper, any parliamentary chamberwould be able to formulate a proposal for a green cardincluding the reasons, anticipated benefits and preferred typeof reaction from the Commission. To qualify as a green card, aproposal for a new legislative action or areview/amendment/repeal of the existing legislation should gainan agreed number of signatories (i.e. parliamentary chambers)and be delivered to the Commission within a specified period oftime. The suggested threshold of signatures is one quarter ofall the votes, counting one vote per chamber in bicameralparliaments, and the deadline for co-signing the green card hasbeen proposed as six months from the date of a proposingchamber circulating the draft. Ideally, similarly to theEuropean Citizens Initiative, the Commission should consider a“green card” by publishing a formal response stating whether itintends to take the proposed action or not, and give reasonsfor its decision. The authors of the initiative also suggestthat the relevant Commissioner could go to the initiatingchamber to respond to the green card in presence of all the co-signatories.

In order to test the feasibility of the project, inJanuary 2015, the EU Committee of the House of Lords putforward three proposals for a trial green card to be consideredby national parliaments on issues including food wasteregulation, cross-border bank transaction fees and the creationof a European Business Forum.14

13 Known also as the ‘Barroso Initiative’. Under the Political Dialogue, established in 2006, the Commission transmits all new legislative and non-legislative proposals and consultation papers directly to national parliaments and invites them to give comments, criticism and positive feedback regarding their contents.14 A letter from Lord Boswell of Aynho, Chairman of the European Union Committee of the House of Lords, available at: http://www.parliament.uk/documents/lords-committees/eu-select/COSAC/20150128%20Letter%20to%20Chairpersons.pdf

Institutional actors’ reactions to the green card initiative The idea of a green card has been put to a first test betweenFebruary and May 2015 through a questionnaire for the 23rd Bi-annual Report of COSAC sent to all national parliaments. Thepicture revealed by the gathered data reveals considerablevariations in parliamentary attitudes as to the shape of theinitiative. 15

The findings of the questionnaire reveal that whilemajority of national parliaments express enthusiasm towards theidea of the green card, many of them also formulate concernsabout its legality and remain dubious about its feasibility. Inthis regard, some of the chambers point out that the proceduremight be incompatible with the treaties, unnecessary, orexplain that they are not domestically equipped withinstitutional competences to make use of it.

According to the gathered data, three parliamentarychambers have expressed clear opposition to the idea of a GC(Finnish Eduskunta, Italian Camera dei deputati and the Romanian Senate)while several others remain skeptical (e.g. Polish Senat,Estonian Riigikogu and Belgian Chambre des representants). In thissense, the Finnish Eduskunta points out that the green cardwould require making institutional or quasi-institutionalarrangements outside of the treaty framework adding to thecomplexity of the present EU decision-making process withoutsignificant added value.16 Similarly, the Italian Chamber ofDeputies underlines the well-established practice of politicaldialogue pointing that entering into any kind of additionalcollective exchanges between the Commission and a group ofparliaments is not necessary. While both the Romanian andPolish second chambers dismiss “formalization” of the greencard procedure as requiring Treaty changes, the latter one alsorefers to constitutional limitations which would make itdifficult for the parliament to exercise the right to“initiate” EU policy solutions. Finally, the Estonian chamberprefers to concentrate on current practices of scrutinizing theEU activities of the executive. Among other voices, the BelgianChamber of Representatives warns that the green card mightimpose additional administrative burdens on the parliament,while the German Bundestag has not adopted any formal position

15 23rd Bi-annual Report of COSAC available at: http://www.cosac.eu/53-latvia-2015/plenary-meeting-of-the-liii-cosac-31-may-2-june-2015/16 Ibidem.

yet emphasizing that the procedure should be in line with theposition of the EP.

From the whole range of responses it can be seen that onthe one hand, apprehensive national chambers positionthemselves as firm guardians of the treaties while thesupporters of the idea allow for more flexibility in theirapproach to the green card. The differences among parliamentaryapproaches might be explained by quite heterogeneous nationalparliamentary traditions, and different perceptions ofparliamentary roles in EU governance. For example, while theHouse of Lords and the Dutch Tweede Kamer strive to becomeactive players in the EU legislative system, there is consensusbetween the Swedish, Finnish and German chambers thatparliaments should not have an independent role at the EUlevel, but should limit themselves to the control of their owngovernments.17

The COSAC questionnaire has also revealed differences asregards the scope and technical details of the green card.While all the national parliaments agree that a proposal of agreen card might be issued by any national chamber according toits own domestic procedures, a number of chambers opposed theproposed minimum threshold of 1/4th of all the votes to launchthe procedure (e.g. Bulgarian, Latvian and Lithuanianchambers). Instead, they suggest to apply similar solution asin case of the EWS, where the threshold is 1/3rd of the votesattributed to national parliaments. Moreover, while theSlovenian and Polish chambers suggested to shorten the deadlineof collecting the signatures from 16 to 8 weeks, the Czech andthe British second chambers asked for its extension to 6months. Finally, the French Senate pointed out that in theabsence of specific EU legal basis for the green card, it wouldbe delicate to create anything going beyond the informalcooperation. In the same vein, the Italian Camera dei Deputatiemphasized that it should not alter the existing institutionalbalance.

As regards the position of the main EU institutions, theEuropean Commission’s attitude towards the green cardinitiative is careful. While in June 2014 the formerCommission’s President Barroso expressed his readiness toconsider national parliaments’ input concerning possible EU

17 E. Mastenbroek et. al, Engaging with Europe. Evaluating national parliamentary control of EU decision making after the Lisbon Treaty, Nijmegen, December 2014

legislation or reviews thereof, the new Commission’s vice-president Frans Timmermans, in his letter to the Latvian Saeimain February 2015, clearly changed the tone stating that, ratherthan entering into a potentially complex discussion on new institutionalarrangements not foreseen by the treaty, the issue should be addressedin a more pragmatic and immediate way. However, he did not provideany specification of what this might mean.

The EP, whose position might be threatened by the greencard, has not answered to the question whether it supports theinitiative. According to the COSAC questionnaire, theConstitutional Affairs Committee of the EP (AFCO) has not takena formal position on the matter. Yet, in the space provided foradditional comments, AFCO respondent indicated that theinitiative is a positive suggestion to enhance the existingpolitical dialogue with national parliaments as long as it doesnot amount to a real right of legislative initiative notforeseen by the treaties.

Interestingly, quite a different view was expressed by anEP official responsible for inter-institutional relations withnational parliaments interviewed over the phone. In hisopinion, the green card procedure – as drafted in theparliamentary discussion paper - should be dismissed asincompatible with the treaty. At the same time, he did notenvisage a scenario where national parliaments receive a “greenlight” to propose legislation at EU level through a gentleman’sagreement with the Commission. Instead, referring to the Reporton relations between the EP and the national parliamentspublished in March 201418, he pointed out that the role ofnational legislatures is to control their governments byscrutinising EU legislation and exchanging views with EUinstitutions. In this area the Lisbon potential is stillunexploited.

The views expressed by institutional actors provide inthemselves a rather interesting field for analysis of thepotential repercussions of the green card. In the context ofthe democratic underpinning of the initiative, the mostimportant aspects to be looked at are its compatibility withexisting legal framework and its potential influence on inter-institutional relations. These two aspects should be consideredboth in the EU as well as in domestic context as the proposed

18 2013/2185 (INI), Rapporteur Carlo Casini

procedure, similarly to the EWS, would be a tool cross-cuttingthe two levels of governance.

The legal standing of the green cardEU level considerationsThe main concern related to the operationalization of the greencard mechanism lies in the fact that its ultimate purpose (i.e.enabling national parliaments to induce/activate legislation)goes beyond the scope of competences granted to parliaments bythe treaty. According to Article 12 of the Treaty of Lisbon(Treaty on European Union, hereafter TEU), the main task ofnational parliaments is to contribute actively to the good functioning ofthe Union. To this end, the Treaty grants them a broadercatalogue of rights regarding access to EU information;participation in the evaluation and control mechanisms in thearea of freedom, security and justice, Treaties revisionprocedures, as well as it strengthens the inter-parliamentarycooperation between national parliaments and the EP.Additionally, Protocol 2 on the application of the principle ofsubsidiarity and proportionality attached to the Treaty ofLisbon equips national parliaments with the power to controlthe EU legislative process through the mechanism known as theEarly Warning System. Within its framework, nationalparliaments might issue reasoned opinions if they consider thatEU draft legislative acts do not comply with the principle ofsubsidiarity.

The Treaty, however, does not grant national parliamentsany rights related to direct or indirect initiation of the EUlegislation. As enshrined in the Treaty, the first one isreserved only for the European Commission (art. 17 (2) TEU).While authors of the green card emphasize that the procedurewould not infringe upon the Commission’s legislative initiativemonopoly, in view of the green card discussion paper, it wouldconstitute some kind of an indirect legislative initiative,whereby a group of parliaments would pressure the Commission torespond. Indirect legislative initiative mechanisms alreadyexist in the EU and are regulated by the current treaty. Suchright is enjoyed by the two EU co-legislators, i.e. theEuropean Parliament (art. 225 TFEU) and the Council of the EU(art. 241 TFUE). Each of them can ask the Commission to submitany appropriate proposal on matters pertaining to EUcompetence. If the Commission does not submit such a proposal,

it must inform the co-legislators of the reasons. Moreover, theTreaty of Lisbon granted the right of political initiative alsoto the European citizens by introducing the so-called EuropeanCitizens Initiative whereby 1 million of citizens coming fromat least seven EU Member States can invite the Commission topropose legislation (art. 11 TUE). In other words, all theexisting legislative initiatives have their legal basis in thetreaties.

Hypothetically then, granting the same possibility tonational parliaments, would require the EU to consider threeoptions: introducing treaty changes (highly unlikely in thecurrent political context); signing a formal inter-institutional agreement between the Commission and nationalparliaments (possibly including also the EP) without amendingthe treaty; or proceeding in an informal way. Supporters of thegreen card tend to opt for the third solution pointing that thegreen card would not grant national parliaments the right oflegislative initiative per se and should be treated as softpolicy suggestions. Consequently, it could be successfullyincorporated into the framework of the existing politicaldialogue, a procedure which lacks any treaty basis.

Yet, treating the green card as a distinct part of thepolitical dialogue raises several types of considerations.First, as in case of the political dialogue (or the ‘Barrosoinitiative’), the decision would have to be acknowledged and –ideally - endorsed by the European Commission’s President. Yet,while in the case of Barroso initiative no detailed, formalprocedures were agreed (such as deadlines or thresholds) thecurrent green card proposal foresees a range of suchrequirements. While under the political dialogue, the exchangeof information between the national parliaments and theCommission does not oblige the latter one to (formally) respondto parliamentary comments, the current green card proposalenvisages such a possibility. The discussion paper proposesthat the Commission publishes a formal response to a green cardwithin a specified deadline (e.g. 8 or 12 weeks) statingwhether it intends to take the proposed action and giving duereasons. Another possibility would be for the relevantCommissioner to participate in some kind of a parliamentaryhearing in the initiating chamber. Formalizing such commitmentmight not be so likely taking into account the abovementionedreluctance of the vice-President Timmermans to initiate complex

procedures not foreseen by the treaty. In such case,parliaments would have to expect scrapping majority (or all) ofthe formal requirements and simply carry on with suggestinglegislative solutions to the Commission counting on itsgoodwill and political commitment. This way, the proposed greencard would in fact constitute a form of enhanced politicaldialogue and not a separate institutional mechanism of indirectlegislative initiative. In this sense, the response of the EPAFCO Committee to the COSAC questionnaire suggested re-namingthe initiative a "Green Card exercise" pointing out that theword "procedure" is confusing with regard to its legality underthe Lisbon Treaty. In such case, the question remains whetherlack of proper formalization of the procedure would notdiscourage national parliaments to devote their resources tothe process.

Second, the collective character of the green card –assuming Commission’s response only when a certain number ofparliaments co-sign the proposal - might also entail somedifficulties. The rarity of yellow or orange cards is usuallyblamed on insufficient coordination and communication among thenational chambers resulting in a difficulty to reach thenecessary threshold of signatures. One might be thereforeskeptical as to the capacity of the parliaments to deliver aunified vision of draft legislative acts. While in the case ofthe EWS, there are some generally established conditionsdescribing the scope of subsidiarity as well as guidelines onhow to conduct the necessary tests of a legislative draft’scompliance with the principle, the green card would be basedon pure “parliamentary creativity”. One might imagine thatagreeing on a shape of a proposal by 19 parliamentary chambers(1/3rd of all the votes) composed of different political forcesmight be very challenging.

Finally, there are voices that the requirement of jointgreen card submission could paradoxically weaken the influenceor leverage of individual parliaments within the politicaldialogue as the Commission might be obliged to respond only tothose proposals that gain the necessary threshold while feeljustified to ignore individual voices. One could howeverdisagree with this argument, as the political dialogue concernsdraft legislative acts already proposed by the Commission,while the green card refers to new legislative ideas ofnational parliaments.

National level considerationsRegardless of whether the green card would be introducedthrough an inter-institutional agreement or as an informalpolitical commitment, its operationalization might come acrosslegal obstacles also in domestic realms. The preliminaryresearch shows that at least in two Member States, this kind ofparliamentary action could be incompatible with theconstitutional framework.

According to the Polish Constitution, the competence overforeign policy belongs to the government (art. 146). At thesame time, the Constitution does not have a separate chapterrelated to state’s participation in the European affairs.Consequently, there is no legal basis for “pro-active” actionsof the parliament in the field of EU policy as this area –according to the legal doctrine - forms part of the foreignpolicy. In this vein, it is only the Government who has theright to pursue appropriate actions at EU level, while theparliament performs controlling and scrutiny function. Suchinterpretation does not deprive the parliament of the rightsstemming from EU treaties and their protocols, and safeguardedby relevant national regulations such as the one related toparliamentary participation in the EWS or issuing opinions onEU draft legislative acts.19 However, as we already know, thetreaties do not foresee proposing such acts or give opinions onthe proposals made by other parliaments. In other words, withinthe current Polish legal framework, Polish Sejm and Senat do notpossess the capacity to make use of the green card.

Similarly, the Swedish Riksdag signaled in the COSACquestionnaire that in the Swedish constitutional framework, thegovernment has the sole responsibility for representing Swedenin the EU. The parliaments EU-oriented actions are aligned tothe government to the extent that even the political dialoguewith the Commission take place through the executive.20 Thelatter one is however accountable to Riksdag.

While these two countries are evident cases where thegreen card procedure would be incompatible with domestic legalframeworks, it could be expected that such concerns might be19 Act of 8 October 2010 on the cooperation of the Council of Ministers with the Sejm and the Senate inmatters relating to the Republic of Poland's membership of the European Union, hereinafter referred to as the Cooperation Act (Dziennik Ustaw 2010, No 213, item 1395) 20 That is one of the reasons for the relatively little activity of Riksdag under the political dialogue, as opposed to EWS.

present also in other states. In fact, only a few nationalparliaments have conducted relevant legal analyses on thepotential implementation of the green card, let alone consultedtheir governments on the matter. But even if these concernswere valid only for those two Member States, it would mean thatsome national chambers would be excluded from participation inthe procedure, which would result in asymmetry of democraticrepresentation. Green card might then differentiate amongnational parliaments – as some will not be able to use itwithout changing the institutional orders.

The green card influence on inter-institutional relationsApart from the concerns related to the legal standing of

the green card, the initiative seems to have the capacity tochallenge the established institutional balance in the EU.While the main dimension of this challenge refers to the roleof the EP in the EU legislative process, the second refers tothe domestic legitimacy intermediation function of nationalparliaments. As regards the former one, the green cardinitiative might be perceived by the EP as a danger to itsinstitutional stance as it would de facto grant nationalparliaments indirect right of legislative initiative, thusbringing them closer to an equal footing with the Europeanlegislature.21 The latter, quite understandably, dislikes theidea of becoming primus inter pares. For this reason, it has longfought against the creation of any mechanism that couldchallenge its position as the sole EU-level parliamentaryforum, preferring a mode of strengthening parliamentarydemocracy in the EU by supranational tools it can control.22

The preliminary research indicates that the green card wouldnot be one of them.

Although a number of national chambers emphasized in theCOSAC questionnaire that the procedure should be in line withcompetences of EU institutions and the position of the EP(German Bundestag), majority of parliaments reveal the tendencyto sideline the latter one in the very procedure. According to21 The EP itself does not have a right to initiate legislation and can onlyrequest the Commission to submit an appropriate proposal (Art. 225 TFEU). 22Contribution of Professor Fossum in the Ninth report of the House of Lords, available at: http://www.publications.parliament.uk/pa/ld201314/ldselect/ldeucom/151/15102.htm

the findings of the COSAC questionnaire, only two parliamentarychambers postulate that the EP should play a role in the greencard mechanism (Romanian Senate and Hungarian Országgyűlés). Someof the opposing chambers point out that the EP already enjoysthe right of indirect legislative initiative, so there is noneed for its participation in the additional one (House ofLords). Several other chambers are of the opinion that EPshould be only informed about initiated cards, but not activelyinvolved in their development (e.g. Lithuanian Seimas, PolishSejm, Czech Senate).

However, some of the respondents are not clear about theexact role of the EP in this undertaking. For example,according to the Polish Sejm, while the EP should not beinvolved in co-signing the green card, its support would lendgreater strength to national parliamentary proposals. What ismore, the chamber suggests that the EP could exerciselegislative initiative in cases where the Commission did notshow willingness to consider the national parliamentary greencards. Such expectation does not however seem logical in thecontext of collective attempt to bypass the EP. In fact, it ishard to imagine the green card’s success without the EPsupport. Moreover, since these two parliamentary arenas co-exist in the same political environment and, in part, in frontof the same electorate, an endorsement of the EP would surelylend the green cards additional political weight. On thecontrary, sidelining the EP could exacerbate the mistrust andcompetition between the two. It might be imagined, that even ifthe Commission pursues with the green card, it might be laterheavily mended or even rejected by the EP.

Studies confirm that while the European and nationalparliaments are interconnected and stimulate each other’sevolutions23, national parliaments are likely to be the driversof this co-evolution. Moreover, parties and members ofparliaments at the national and EU level take consciouspositions as regards each other’s empowerment.24As much as theEP's empowerment has enhanced the pressure on national23 B. Crum and J.E. Fossum, The Multilevel Parliamentary Field: a framework for theorizing representative democracy in the EU, European Political Science Review, 1(02), July 2009, pp 249-27124

T. Winzen et. al, Parliamentary co-evolution: national parliamentary reactions to the empowerment of the European Parliament, Journal of European Public Policy, 22(1) 2015, pp. 75-93.

parliaments to strengthen their own EU-related competences,introducing the green card that would bypass the EP mightpressure the EP to counteract this empowerment. In order toreduce negative trades off between the empowerment of one leveland the other, the future scope and nature of the potentialgreen card should be carefully designed to generate a new senseof complementarity between the two parliamentary levels and notone of conflict.

Last, but not least, there is a question of the consent ofnational executives. Should these institutional actors beconsulted or could the green card procedure be operationalizedby circumventing the governments? So far, the opinions aredivided. While some parliaments have already discussed suchpossibility with their executives (e.g. Irish Oireachtas),others do not feel obliged to do this pointing that if theprocedure is accommodated within the framework of the politicaldialogue, it is the parliament’s right to pursue its EU-oriented activities without prior government approval.25

However, from the moods in Brussels it looks like there is notmuch enthusiasm in the executive circles. As reported by theBritish Minister of State for Europe at the Foreign andCommonwealth Office, Sir David Lidington during a hearingorganized by the House of Lords it was unusual to find the level ofnational Governments outright opposition to these ideas (of strengheningnational parliaments by, inter alia, the green card). Accordingto Mr. Lidington, some leaders think more automatically of the EuropeanParliament as the place where they assume that public accountability should lie forBrussels decisions. 26 In spite of political commitments to makeEurope more democratic, discussions with representatives ofnational governments about the possibility to strengthennational parliaments in EU affairs quite often come down to theconclusion that national parlamentarians lack the necessaryunderstanding required to effetcively engage with the EU. In asimilar vein, the former President of the European Council,Herman Van Rompuy observed that while the provisions for democraticlegitimacy and accountability should ensure that the common interest of the union is

25 Interviews with representative of the Polish Sejm (April 2015) and Latvian Saeima (May 2015).

26 The Select Committee on the European Union inquiry on The role of national parliaments in the EU, 14 January 2014, available at: http://www.parliament.uk/documents/lords-committees/eu-select/Role%20of%20national%20parliaments/ucEU140114ev13.pdf

duly taken into account; yet national parliaments are not in the best position to takeit into account fully.27

Strikingly, similar opinions might be heard from withinthe ranks of parliamentary EU committees that in many memberstates function as some kind of “Europeanized islands” indomestic parliamentary seas. Majority of MPs involved innational politics have neither the time nor the willingness tolearn more about the “EU galaxy.” While the handful of MPs fromEU commissions keep track of the Brussels agenda, the rest seemto live on another planet called “domestic,” unaffected by theever-increasing stream of EU legislation.28 At the same time, alimited electoral salience regarding European affairs causesthat MPs do not perceive their engagement in scrutinizing EUdossiers as particularly politically rewarding.29 While itcould be expected that a formalized green card procedure mightencourage national parliamentarians to get more involved inorder to obtain visibility at the EU level, it is debatable towhat extent they would be able to rise above their politicalparticularism and suggest compromise yielding solutions for thewhile EU.

Conclusions & Recommendations

National parliaments today find themselves at a sort ofcritical juncture. On the one hand, amidst complaints about theEU’s democratic deficit and lack of transparency, there is aclear need strengthen parliamentary engagement in EU policy-making. Situated close to citizens, parliaments have a crucialrole in increasing the legitimacy of EU decisions byestablishing links between citizens of the member states andEuropean decision-making. On the other hand, the mere baldassertion that granting national parliaments the right tosuggest legislative proposals will automatically increase EUdemocratic legitimacy is too simplistic and hardly convincing.

27 H. Van Rompuy, Towards a genuine Economic and Monetray Union, 5 December 2012, p.16, available at: http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/134069.pdf28 Interview with representative of the Polish Sejm (April 2015).29 K. Borońska-Hryniewiecka, The “Green Card” opportunity: Time to rethink parliamentary engagement in European Affairs, Bulletin of the Polish Institute of International Affairs, No. 41(773), 23 April 2015.

It is not only because they still lack the necessary“European sensitivity” to be able to contribute effectively to the goodfunctioning of the Union (draft green card projects might beelaborated in small circles of interested MPs from specificcommissions and agreed in the plenary), but also because thecurrent design and scope of the green card might becomecounterproductive to boosting the overall EU legitimacy as ittends to position one parliamentary level against another. Agenuine democratic legitimacy calls for combining the best oftwo worlds.

The EWS has already become a certain catalyst for theexercise of legislative competences attributed to nationalparliaments that had been transferred to the EU. To some extentit also restored their controlling and representative functionthrough linking EU political decisions at the supranationallevel with citizens’ preferences on the ground. However, thislegislative transmission belt and an increased parliamentarycapacity to keep track of EU policy-making through theirinvolvement in the EWS has not translated into deepening ofEU’s legitimacy because, contrary to some authors’ optimism,the EWS does not amount to a ‘virtual third chamber’collectively fulfilling the legislative, representative anddeliberative function in the EU.30 The blame lies on both sidesof the spectrum, being the Commission’s insufficientinvolvement in addressing parliamentary opinions and nationalparliaments’ lack of coordination and certain “critical mass”of EU understanding.

Nevertheless, national parliaments want to see an impactof their involvement at EU level. It is however unlikely thatthis can be achieved via the green card procedure withoutproper commitment of the Commission as well as the EuropeanParliament. Without those two, the green card would be only asymbolic addition to the already weakly functioning system.Skeptics could even go further in assuming that even onceformalized, the green card might not guarantee a genuineinfluence at EU level. It might be expected that if theCommission does not engage constructively and more in depthwith concerns raised by national parliaments under the EWS, or

30 I. Cooper, A Virtual Third Chamber for the European Union? National

Parliaments Under the Treaty of Lisbon, West European Politics, Volumr 35, Number 3, 2012

by citizens postulates under the ECI, it will not treat thegreen cards in a significantly different way.

Yet, parliaments should not rest in their efforts toconstructively engage. First they should focus on improving thealready existing mechanisms of EU scrutiny and dialogue withthe Commission by better intra and inter-parliamentarycoordination of the EWS. A series of parliamentary workingmeetings is being held this year to develop such tools.Additionally, a comprehensive Europeanisation of MPs shouldtake place by mainstreaming Europe into their daily work.Primarily, this could be done by making parliamentary sectoralcommittees, not only EU committees, responsible for controllingand debating the EU legislative process. Intensified, EUoriented discussions should be encouraged by more experiencedMPs and their counterparts at the EP, including sector-orientedjoint parliamentary events.

Second, the green card initiative should not be used as atool to level or counter the empowerment of the EP, but ratherto complement its influence in the EU governance. As much as itmight sound little convincing for national parliaments, the EPis the legitimate locus of legislative power in the EU and hasthe capacity to act as a power multiplier for nationalparliaments by, for example, adding more institutional weightto the green card proposals. It is of course up toparliamentary chambers how they will organize their cooperationwith the EP, but a systematic exchange of information betweenthe two levels is an essential starting point. Therefore,instead of pushing for the green card in its current form,parliaments could act more modestly, yet in a long run, moreeffectively.

They could reframe the initiative in a more pragmatic wayby changing it into an amendment procedure that instead ofproposing new legislation at EU level would focus on improvingthe regulations already in place with the support of the EP.This way, it would be based on a two-directional feedback loopbetween the EP and national parliaments composed of asystematic sharing of information related to the EU legislativeprocess (on the side of the EP) and the EU law already in place(on the side of national chambers). In this sense, theparliaments would share their positions on the implementationof EU legislation and propose suggestions for amendments or, ifdeemed appropriate by more chambers, repeals. On the other

hand, the EP would work together with national chambers todeliver sound proposals for EU amendments and inform them aboutthe developments of the regular legislative process in areas ofparliamentary interest. In this regard, there is still much ofunexploited potential of information sharing in the area oftrilogues31 whose ultimate goal is to reach compromise on alegislative proposal at an early phase of the legislativeprocess.

It is estimated that after the Lisbon Treaty, around 80%of EU laws have been agreed before the first reading, throughthe so-called trilogues whose formula fails to ensure asatisfactory level of transparency. As there is no mention ofthem in the treaties and no regulations or safeguards existallowing for their control, these meetings are held behindclosed doors with no public access. It is especially concerningthat only a handful of EU staff is involved in trilogues andthe deal that emerges from it often bears little resemblance tothe documents agreed by the lawmakers at the EP and theCouncil, not to mention national parliaments who hadscrutinized these draft legislative acts much earlier. This isan especially salient moment for national parliaments toarrange their cooperation with the EP on this matter as the EUOmbudsman has just launched an investigation to improvetrilogues transparency.32 On the other hand, the President ofthe EP already in June 2014 issued a letter to nationalchambers which offered them a new form of cooperation enablingnational parliaments to share their positions or backgroundknowledge on the implementation of legislation that theCommission intends to amend. National chambers could build onthis proposal to establish a mutually satisfying arrangementfor both sides. Ideally, a two-directional feedback loopbuilding on synergies between the national and EU levellegislators would allow them to enhance each other’s legitimacyand produce a more efficient and democratic legislative outputin times of executive dominance.

31 Inter-institutional consultations between the Commission, the EP and the Council. 32 http://www.ombudsman.europa.eu/press/release.faces/en/59975/html.bookmark