SSRN-id2333627

Electronic copy available at: http://ssrn.com/abstract=2333627

After Lisbon - A revival of national parliaments by reasoned opinions?

Christoph Kimmerle*

Working Paper (10/2013)

Abstract: The Treaty of Lisbon installed an Early Warning System (EWS) for the principle of subsidiarity.

The EWS enables the chambers of national parliaments to challenge EU legislation within the field of

shared competencies by sending so called “reasoned opinions” to the European Legislators. A major

reason for the new and emphasized role of national parliaments within the EWS is attributed to concerns

about the legitimacy and democracy of supranational law making by the EU.

This paper contributes to the literature by empirically assessing the impact of the EWS since its

introduction in 2009. In particular we try to explain cross parliament variation in the employment of

reasoned opinions. The paper first discusses and then tests competing explanations for the relevance and

competence of the scrutiny of EU legislation undertaken by national parliaments. We find that the extent

of available resources for parliamentary scrutiny, citizens’ trust in their national parliament relative to

their trust in the EU, and a country’s preferences for EU policy all have a significant effect on the

frequency with which chambers of parliaments employ reasoned opinions.

Keywords: Treaty of Lisbon, Early warning system (EWS), reasoned opinion

* PhD Researcher, DFG-Graduate School “The Economics of the Internationalization of the Law”, Institute of Law

and Economics, University of Hamburg, [email protected]

I thank Jerg Gutmann, Andreas Koenig, Thomas Eger and Stefan Voigt for helpful comments and suggestions.

Electronic copy available at: http://ssrn.com/abstract=2333627

1

1. Introduction

With the Early Warning System for the principle of subsidiarity (EWS), the Treaty of Lisbon

addresses two important and so far unresolved issues of European integration in conjunction:

subsidiarity and the role of the national parliaments in the European Union. Both issues had

played a role in the history of the European treaties as well as in the academic literature.

The subsidiarity principle first made its way into the Maastricht treaty in 1992. At that time, the

rationale for implementing the principle was the desire to facilitate ongoing conflicts regarding

the division of competences between the Union and the Member States. Moreover, the

subsidiarity principle was seen as a means of countering fears of European federalism and was

expected to be a remedy against excessive centralization (Paul 2012). In the Amsterdam Treaty

(1997) the principle was reemphasized by an added “protocol on the application of the Principles

of Subsidiarity and Proportionality”. The protocol demanded qualitative and quantitative

indicators to justify the allocation of authority to the supranational level.1 In 2009, with the

Treaty of Lisbon, the principle of subsidiarity was readdressed by the implementation of the

EWS.

Within national parliaments, the question of which role to play in the process of European

integration remains largely unanswered. Faced with the situation of legislation increasingly being

delegated to the European Council, parliaments were losing their traditional responsibilities to the

supranational level. In addition, decision-making on the supranational level clearly favored the

executive branch at the expense of national parliaments (Moravcsik 1998, p.9). This process,

known as deparliamentarisation, led to national parliaments being referred to as the victims of

Europeanisation (Norton 1997, p.1-15).

On the other hand, it is not only the reallocation of legislative decision-making from the national

level to the supranational level and the shift of power from the domestic legislative branch to the

executive branch that is challenging national parliaments. Policy preferences, a positive attitude

1 See TREATY OF AMSTERDAM Protocol on the application of the principles of subsidiarity and proportionality

(4) “For any proposed Community legislation, the reasons on which it is based shall be stated with a view to

justifying its compliance with the principles of subsidiarity and proportionality; the reasons for concluding that a

Community objective can be better achieved by the Community must be substantiated by qualitative or, wherever

possible, quantitative indicators.”

2

towards integration and deference to the government in foreign affairs also contribute to the

parliaments’ difficulties in defining their proper role in the European integration. Moreover,

highly technical regulations and a humble level of voter interest are often obvious disincentives

for national MPs to invest their limited resources in the scrutiny of European decision-making

(Kiiver 2012, p.6).

With the implementation of the EWS in the Treaty of Lisbon, national parliaments are now

provided with an institutionalized instrument with which to question the jurisdiction of the

European legislator. The scope of the review contains all draft legislative acts mentioned in

Article 3 of Protocol No. 2. In terms of the protocol the definition of national parliament

comprises the first as well as the second chambers. For the EU 27, 38 parliaments or second

chambers are currently participating in the EWS. Each of the 38 has the right to respond to a

legislative draft with a so-called “reasoned opinion” stating its reasoned subsidiarity concerns.

Reasoned opinions have to be sent within eight weeks of a draft legislation being issued.

Unicameral parliaments have two votes. In bicameral systems each chamber has one vote.

On the European level the reasoned opinions (best understood as a plea against draft legislation

because of national parliaments’ subsidiarity concerns) are counted as votes. The consequences

of the issued reasoned opinions depend on the sum of total votes. Several thresholds are defined.

If a sum of 14 votes in total is reached, proposals falling under Article 76 TFEU must be

reviewed. Any proposal (not only according to Art. 76 TFEU) must be reviewed in cases were a

threshold of 18 votes is reached. Both thresholds trigger a “yellow card”. The yellow card implies

the review of a legislative proposal by the initiating institution. However, the institution is free to

maintain, withdraw, or amend the proposal, but must give a reason for the decision (Art. 7

Protocol 2 TEU/TFEU).

For legislative drafts falling in the area of the ordinary legislative procedure a total number of 28

votes triggers an “orange card”. The orange card leads to a somewhat deeper scrutiny of the draft

proposal in so far as decisions to maintain a proposal must be justified to the European legislator.

In their review, the European Parliament and the Council then both have the right to reject the

proposal (Kiiver 2012, p.27).

3

The expected effects of the EWS have been debated in the literature. Some authors already see

the foundation of a “virtual third chamber” which, with some limitations, can potentially perform

all three main functions of a real parliament: Legislation, representation and deliberation (Cooper

2012). Others are more pessimistic, pointing out that most of the new “rights” of the national

parliaments are obvious or unnecessary codifications and that in sum the changes will not help to

remedy the problem of deparliamentarisation in the EU (Hölscheidt 2008). Also the restriction to

a narrow subsidiarity control, in contrast to the inclusion of a broader attempt including the

control of proportionality or other issues, was heavily criticized. The usefulness of the thresholds

and the lack of a “red card” are also in question (Barber 2005 (a) and 2005 (b)).

Other authors argue that the EWS is best understood as a formalized advisory board for the

national parliaments. Limiting their role to one of a “watchdog for formal issues” (Kiiver 2011)

with a clear focus on the legality of a draft legislation (in contrast to the desirability of a

proposal) will be a realistic task for the national parliaments and conducive to a fruitful political

dialogue. Moreover, the existence of the EWS will already have a positive ex ante effect on draft

legislation. This is because the initiating institution will have to justify their proposal in depth

with respect to why they think subsidiarity is not an issue (ibid.).

This paper aims to contribute to the discussion in the literature on the role of national parliaments

in two ways. First we try to shed light on the question of whether the EWS is contributing to the

political dialogue between the European legislator and the national parliaments or whether its

implementation can be understood as pure window-dressing. We therefore conduct a quantitative

empirical analysis of the employment of the reasoned opinion within a three and a half year time

span. Secondly, we are interested in the question of which characteristics of countries and

parliaments are conducive to the scrutiny of European affairs by the chambers of national

parliaments. We therefore present and summarize the key arguments made in the literature for

what country and parliament characteristics will be conducive to a successful scrutiny of EU

legislation. We then use count data on the 249 issued reasoned opinions and test the relevance of

these variables for the employment of reasoned opinions by the chambers of national parliaments.

We would expect the number of reasoned opinions issued by a chamber of parliament to be a

function of its individual MP’s willingness to invest in the issuing of a reasoned opinion. Some

4

characteristics, such as a Eurosceptic attitude on the part of a country’ constituents, will be a

positive incentive for the MP to invest in issuing reasoned opinions. Others, such as parliament’s

limited resources for scrutiny, will be a disincentive to investment in the issuing of reasoned

opinions. Indeed, we find that the issuing of reasoned opinions is significantly influenced by the

amount of available parliamentary resources, trust in the national parliaments relative to the trust

in the EU and a country’s preferences for EU policy-making.

The paper is structured as follows: In the next section we briefly review the literature on

parliamentary scrutiny of European affairs. From this discussion we derive our explanatory

variables and suggest a way to measure these variables. Then we take stock of the 249 reasoned

opinions issued since the Lisbon Treaty went into force. This section is followed by the testing of

the impact of our explanatory variables on the number of times a parliament has issued a

reasoned opinion.

2. Parliamentary scrutiny of European affairs

For more than a decade, the question of which role national parliaments could and should play

within the legislative action of the European Union became an increasingly salient issue in the

treaties of the EU as well as in the academic literature (one example is Maurer and Wessels

2001). In this section we present some of the general theoretical arguments that were presented in

the literature with regard to the successful scrutiny of European affairs by national parliaments. In

addition, we present some of the conjectures made in the literature on what could be relevant

factors in the employment of reasoned opinions by chambers of national parliaments. From this

discussion we will derive our independent variables which we will later use to explain the

variation in the employment of reasoned opinions between the chambers of national parliaments.

Time and Resources:

Protocol No.2 TEU/TFEU states that after a draft legislation is available in the official languages

the parliaments have eight weeks to issue a reasoned opinion in case of subsidiarity concern. The

time frame was extended from the original six weeks in the constitutional treaty; nonetheless it is

5

often argued that an eight-week timeframe is too short. As a result, especially for parliaments

with limited resources, the flood of legislative proposals from Brussels may constitute too large a

burden. Members of Parliaments with relatively limited resources will therefore be less likely to

invest in the scrutiny of EU legislative proposals (Cygan). Moreover, if few MPs are members of

a European Union Affairs Committee (EAC), this will entail that only few MPs will be familiar

with the process of European policy making (Raunio 1999).

The availability of time and resources are of course interrelated. As there is no variation in

available time frames between parliaments we focus on the second part, the available resources.

Within a parliament, discussion of European Union affairs will primarily take place in the EAC.2

The argument is therefore as follows: A large EAC implies that a lot of the MPs regularly get

involved in EU affairs. As a result we can expect the scrutiny of EU matters to play an important

role in these parliaments. Moreover, the greater the numbers of MPs that get involved in the work

of EAC, the easier it will be to tackle the broad area of European policy issues at one point in

time. This is because it is very likely that a larger EAC will also inhibit more resources in terms

of knowledge and manpower.3

Hence, we assume that the greater the number of MPs that are members of an EAC the greater its

relative importance, and the more capable the EAC will be in addressing several issues at the

same time. Therefore, we expect a larger EAC to have more resources and to scrutinize relatively

more EU legislative proposals. With regard to explaining variation in our variable of interest (i.e.

the number of times a reasoned opinion has been issued by a chamber of a national parliament)

we derive the following hypothesis:

H1: The greater the absolute number of MPs in an EAC the more reasoned opinions will be

issued by a chamber of parliament.

2 Bergman puts in the following way: “the most direct and important link between national parliaments and everyday

decision-making in the EU is the one that involves the EU Affairs Committee of the member states” and with regard

to the ability to scrutiny of EU affairs “these committees commonly complain about in ormation problem. However,

it is usually not an overall lack of information about EU matters that create problem, problems stemmed from the

fact that the volume of information is often too much too late”. See Bergman Torbjörn: The European Union as the

next step of delegation and accountability. European Journal of Political Research. May 2000, Volume 37, Issue 3,

pages 415–429. p.417. 3 In this study we limit ourselves to the analysis of the main EACs, however in several chambers of parliaments also

supplementing specialized EACs exist.

6

Public opinion on EU membership

Our next independent variable to explain variation in the number of issued reasoned opinions is

the public opinion on EU membership. The public opinion variable has received quite some

attention in the previous literature on the scrutiny of EU affairs by national parliaments (ibid.

Raunio 1999). The argument is that negative public opinion of a country’s EU membership will

trigger a higher degree of parliamentary scrutiny of EU affairs. Bergmann (2000) showed a

strong correlation between a negative perception of EU membership and parliamentary scrutiny

of EU affairs. In his study the public opinion on a countries membership of the EU was measured

as the percentage of answers to the question “Do you think EU membership of your country is a

bad thing?” The correlation coefficient in his study was 0.91.

In this paper we assume that the individual MPs of national parliaments are the relevant actors for

employing reasoned opinions. Therefore, it seems obvious that their analysis of the costs and

benefits of employing reasoned opinions is what matters with regard to the number of times a

reasoned opinion is actually issued. As Downs (1957) has argued, an MP’s utility mainly comes

from being elected into office, and that they can therefore be expected to be interested in their re-

election.

For our analysis of EU scrutiny via the issuing of reasoned opinions this suggests that in

countries where constituents have a relative skeptical perception of their countries’ membership

in the EU we would expect a higher number of issued reasoned opinions. This is because we

would expect a Eurosceptic constituency to appreciate the MPs investment relatively more. We

will use data from the Eurobarometer to measure public opinion. More precisely, we measure the

percentage of people in a country that affirmed the question of whether they “tend to trust the

EU”.

However, simply looking at the level of constituent’s mistrust of the EU itself is not very

informative. The EWS is an instrument designed to challenge European legislation in favor of

national legislation. Therefore, the crucial question is who should instead be in charge of a certain

legislation. Therefore, we also look at the level of trust the constituents display towards their own

national parliament and divide it by the level of trust expressed towards the EU, i.e. our variable

is the level of trust constituents express towards their national parliament relative to their level of

7

trust in the EU. We will expect a positive association, i.e., in cases where the counter is greater

than the value of the denominator, constituents prefer national law making over supranational and

hence give their national MPs incentives to invest in issuing reasoned opinions. We conjecture

the following relationship:

H2: The greater the level of trust in a national parliament relative to the level of trust in the EU in

a country, the larger the number of reasoned opinions issued by a chamber of a national

parliament.

Second Chambers

In contrast to the above argument, which was based on Downs hypothesis that the incentives of

directly elected MPs and the perception of the constituents towards the EU and their national

parliament is what matters, we could also argue in the opposite direction. Indeed, Kiiver (2011)

argues, that, on the domestic level, the main task of first chambers, i.e. the chamber of directly

elected MPs, is usually to control the government. Moreover, the government and its ministers

are usually accountable to the first rather than the second chamber. As a result, first chambers

already possess one tool, with which to articulate their concerns about EU legislations to the

relevant ministers who is involved in the EU decision making in the European Council.

Moreover, he argues that first chamber MPs are directly elected and therefore have to concentrate

on voters’ immediate preoccupation. In contrast, his argument is that MPs of second chambers

are not directly elected and hence do not feel the need to care about voters interest in the same

way.

Whether directly elected MPs of first chambers or indirectly elected MPs of second chambers

have the greater incentive to invest in reasoned opinions is hard to say ex ante. One way or the

other it seems adequate to control for differences. We therefore include a dummy variable

controlling for second chambers. In addition we propose the following hypothesis:

H3: MPs of second chambers, (who are not directly elected, and who do not have the same

influence on EU decision as first chamber MPs do) have a greater incentive to invest in the

issuing of reasoned opinions. Therefore, the number of reasoned opinions issued by second

chambers will be greater than those issued by first chambers.

8

Political Culture

This variable tries to capture differences in the political culture with respect to the scrutiny of

European affairs. Robert Putnam (1993) argued that religious denominations like the Catholic

Church that impose a hierarchical structure on a society (like the state does) are discouraging the

evolution of trust in a society. Trust is defined as the propensity of people in a society to

cooperate. Moreover, it is argued, the level of trust governs the performance of institutions in a

society. La Porta et.al (1997) built on this argument. In a cross country study, they look at 40

countries and find a strong negative association of the level of trust in a country and the

percentage of people in a society that are member of a hierarchical religion, such as the Catholic

Church for example. In addition, they show that counties with a higher percentage of people in a

hierarchical religion perform worse in couple of indicators including the quality of the judiciary

and the bureaucracy. From these articles we take the argument, that a higher percentage of people

who are members of a hierarchical religion is associated with a lower quality of certain national

institutions, including government and bureaucracy.

In the context of the scrutiny of EU affairs, Bergman (1997) argued that there is a difference

between countries’ attitudes towards the EU as well as with respect to countries’ preference for

parliamentary scrutiny of EU affairs. His argument is that in southern countries EU issues mainly

fall within the sphere of the government’s authority. In contrast to this, parliamentary scrutiny of

EU affairs plays a much more important role and has a relatively higher status in the more

northern countries of the EU. In the southern countries a high percentage of the society are

members of the Catholic Church whereas in the northern countries most people are members of

the Protestant church.

In a later study, Bergman (2000) used a variable controlling for the political culture of a country

(i.e. the strength of a certain denomination in that country). The aim was “to capture the long-

standing mix of historical, institutional, and cultural patterns that vary across the member

states.”(ibid, p.420) Bergman’s result of a Spearman’s rank-order correlation showed that the

scrutiny rank and the Catholic/Orthodox variable were significantly correlated with a correlation

coefficient of .71 in 1996 and .92 in 1999 (ibid. p.423).

9

In summation, a country’s political culture, measured in terms of the predominant denomination,

could affect both the preference for a parliamentary scrutiny of EU affairs as well as the

parliament’s capability of doing so.

We can use these findings to formulate our next hypothesis about the issuing of reasoned

opinions by chambers of national parliaments. Our conjecture is that countries in which a high

percentage of the societies are members of a hierarchical religion will issue fewer reasoned

opinions. If we follow the argument by la Porta et al. discussed above then the reason could be

that these countries have a lower quality of certain institutions such as the bureaucracy. As a

result, these countries could simply be less capable of issuing reasoned opinion. On the other

hand, as Bergman suggested, the preference for a parliamentary scrutiny could be stronger in

countries where the dominant denomination is not the Catholic or Orthodox Church. We will

measure the political culture of a country by the percentage of Protestants in the country in the

year 1980 (la Porta et al. 1998). We derive the following hypothesis:

H4: The larger the percentage of Protestants within a country the greater the number of reasoned

opinions issued by a chamber of national parliaments.

Preference for EU policy making

The question of how many times a parliament is in opposition to a policy area that will be

regulated by the European Union also depends on the policy preferences of this parliament, i.e.

what a parliament generally believes to be the “correct” allocation of a policy field within a

multilevel governance system. In the literature one of the arguments presented, is that the timing

of the EU membership of a country could explain differences in the scrutiny of European affairs

between countries. It is argued that the European project enjoys greater legitimacy within citizens

in the six countries which were founding the EU than in the countries entering the EU at a later

point in time (Bergmann 1997). As a result the later a country entered the Union, the sharper its

scrutiny on European affairs would be.

However, we suggest a different way of measuring a country’s preference for EU policy-making.

Countries that are in favor of EU policy-making will be willing to delegate more policy fields to

the European level. In contrast, countries with a lower preference for EU policy-making will be

10

more hesitant in delegating authority. We can already see that countries self-select into a certain

group when we study countries’ membership of the European Monetary System. A membership

in the EMS can be understood as a strong preference for EU policy-making. This is because

membership of the EMS entails the delegation of national authority. We can see that some

countries that are already in the Union for quite a while, like Denmark, and the UK (both entering

the EU in 1973), stay outside of the Eurozone, whereas other countries select themselves into a

group of deeper integration e.g. Ireland (1973). Sweden and Austria entered the EU in 1995.

Austria became part of the EMS, whereas Sweden didn’t.

From this discussion we can derive our next hypothesis with regard to the issuing of reasoned

opinions by national parliament as a general preference for national, in contrast to supranational,

policy-making:

H5: parliaments in countries that are not member of the EMS will issue a greater number of

reasoned opinions than countries that are members of the EMS.

Table 1 gives an overview of our independent variables. Table 2 shows the summary statistics of

the independent variables.

Table 1: Summary of Independent Variables

Testing for: Name of

Variable

Measurement

Policy preferences euro (Dummy) 1 if a country is a member of the EMS

Preferences of the MPs of

a chamber of parliament

second

(Dummy)

1 if a reasoned opinion is issued by a second

chamber

Political culture prot80 Percentage of Protestants in a country in 1980

(source: La Porta et al.(1998))

Public Opinion of the

constituents in a country

their level in trust in the

EU and in their national

parliaments.

trustNP_EU Quotient of the percentage of constituents in a

country that trust their national parliament

relative to the percentage of constituents that

trust the EU (Source: average of Eurobarometer

SE 74,76,78, the question asked being “Do you

11

trust the following institution ...”)

Resources MPsinEAC Number of MPs who are member to a

chamber’s main EAC. MPs and alternates; no

members of subcommittees; reported additional

members without voting right are excluded.

(source COSAC) :

http://www.cosac.eu/national-parliament-

european-c/)

Table 2: Summary Statistics (N=38 chambers of parliament)

Variable Mean Standard Dev. Minimum Maximum

Number of reasoned opinions by

chamber of parliament

6.55 7.88 0 45

MPs in European Affairs Committee 23.66 12.08 9 59

Quotient of percentage of people

that trust their national parliament

and trust the EU

0.59 0.38 0.14 1.47

Reasoned opinions issued by a

second chamber

0.29 0.46 0 1

Eurocountry (dummy) 0.61 0.50 0 1

Percentage of Protestants per

country in 1980

16.47 26.42 0.1 95.2

12

3. Taking stock

Since the Lisbon Treaty went into force in December 2009 the national parliaments have issued

249 reasoned opinions questioning EU jurisdiction. After a slow start in 2010, when only 28

reasoned opinions were issued, the number increased to 88 in 2011. In 2012 the number declined

slightly to 72 reasoned opinions. In the first eight months of 2013, 51 reasoned opinions were

issued.

The sheer number of 249 issued reasoned opinions suggests that the new instrument offered by

the EWS for the principle of subsidiarity is used by the national parliaments. Indeed, in May

2012 the parliaments showed a yellow card to a Commission’ proposal for the first time. As a

result the Commission withdrew this legislative proposal.4 The increasing number of reasoned

opinions on the one side and the issued yellow card on the other, both are indicating an

intensified and effective political dialogue between national parliaments and the supranational

policy-makers.

However, from Figure 1 we can see that the national parliament’s willingness or capability to

employ a reasoned opinion varies widely. From December 2009 to August 2013, Sweden

questioned European jurisdiction in 45 cases. The Dutch Tweede Kammer issued reasoned

opinions 17 times and the parliament of Luxembourg did so 14 times. On the other hand both

chambers of the Slovenian parliament and the Hungarian issued no reasoned opinion. Only 1

reasoned opinion was issued by the parliaments of Ireland, Estonia, and by the Senate of the

Czech Republic. Figure 1 gives an overview over reasoned opinions employed by all chambers of

national parliaments.

4 The proposal in question - COM(2012) 130 - was concerned “with the exercise of the right to take collective action

within the context of the freedom of establishment and the freedom to provide services”. The reasoned opinions of

12 parliaments sufficed to reach the 18 votes threshold.(IPEX 2013)

13

Figure 1: Reasoned opinions by chamber of national parliaments (source IPEX: 08/13)

In Figure 1, the digits 1 and 2 denote first and second chambers. Single chamber parliaments are

represented by the country abbreviation without an additional number. As proposed in the

literature and discussed in the section above, we suggested that MPs of second chambers could

have stronger incentives to participate in the EWS. The argument therefore was that their access

to the government is more limited (compared to first chambers) and that the public does not

directly elect them. The second chamber of the French parliament issued 15 reasoned opinions in

contrast to only 2 reasoned opinions by the French first chamber. In Germany the second

chamber issued 9 reasoned opinions while the first chamber issued 3. The numbers for the

Austrian and Italian second and first chambers are 10/2 and 9/5 respectively.

Table 3 gives an overview of the average number of reasoned opinions issued by first (1) and

second (2) chambers, as well as, from single chamber systems (3).

Table 3: Reasoned opinions by chamber of parliament

Parliamentary system Mean Std. Dev. Freq. Total number of

reasoned

opinions

first chamber 5.6 5.4 11 63

14

Second chamber 6.3 4.7 11 72

Single chamber 7.1 10.8 16 114

Total 6.6 7.9 38 249

Table 3 shows that on average single chamber systems issue reasoned opinions most frequently

but with a high standard deviation. Moreover, the mean of second chambers is larger than the one

from first chambers.

Another conjecture from section 2 suggested that the EWS could be a particularly interesting

instrument for parliaments in countries that are characterized by a rather limited preference for

supranational law. We suggested measuring preferences for EU law by the membership to the

EMS. The Variable “euro” is a dummy variable where 1 indicates that a country is a member of

the EMS and 0 that a country is not a member of the EMS.

Table 4: Reasoned opinions and EMS membership

Euro (1 if a country is

member to the EWS)

Mean Std. Dev. Freq.

0 8.7 11.2 15

1 5.2 4.4 23

Total 6.6 7.9 38

Table 4 reveals the mean of issued reasoned opinions to be two thirds larger in countries that are

not member to the EMS than the mean of reasoned opinions employed by parliaments in

countries that are members of the EMS.

Table 5 displays the use of the EWS by countries with a different political culture. In section 2

we presented the argument that political culture could be a reason why some parliaments are

more willing to invest in the parliamentary scrutiny of European affairs than others. As suggested

15

by the literature we measure political culture by the share of Protestants in a country. The

variable “protstrong” is a dummy variable, where 1 denotes countries with a percentage of

Protestants greater than 25. These countries are Finland, Sweden, Denmark, Germany, Estonia

and the Netherlands.

Table 5: Reasoned opinions and political culture

Protstrong Mean Std.Dev. Freq.

0 5.0 4.3 30

1 12.2 14.3 8

Total 6.6 7.9 38

From table 5 we can see that countries with a share of more than 25 percent Protestants on

average issued more than twice as many reasoned opinions as parliaments in countries with a

lower percentage of Protestants.

4. Regression model and results

This section presents the results of the regression. The dependent variable of our analysis is the

number of reasoned opinions issued within the time span December 2009 to the end of August

2013, i.e. we are dealing with count data. In addition, the dependent variable of our analysis is

over-dispersed and only three observations are zero. We will therefore use a negative binomial

model.

The results of the negative binomial regression are reported in appendix 1. The table shows the

marginal effects of the variables. In our full model (5), the variables testing for the available

resources in a chamber of parliament (MPsinEAC), for country preferences (euro) and for the

preferences of the constituents (trustNP_EU) all have the expected signs and are statistically

significant. Although the descriptive analysis of the previous section suggested the importance of

the variables controlling for the preferences of the second chamber (second) and for the political

culture (prot80), both variables are not statistically significant.

16

The reported results in appendix 1 give us a first impression of the relevance of the discussed

variables with regard to their statistical significance level and their signs, i.e. whether a variable

has a positive or a negative effect on the depended variable. The displayed coefficients are more

difficult to interpret. To get a better grasp of the power of our coefficients we can survey the

incident rate ratios displayed in table 6.

Table 6: Incident rate ratios (IRR)

Nbro IRR (rounded) P>|z|

MPsinEAC 1.03 0.000

TrustNP_EU 2.84 0.003

Euro .63 0.051

Table 6 reports the incidence rate ratios for the three variables found significant in the negative

binomial model. The interpretation of the results is as follows: MPsinEAC is the estimated rate

ratio for a one unit increase in the number of MPs that are member of the chamber’s EAC. If a

chamber of parliament were to increase the number of MPs in its EAC by one, the rate it issues

reasoned opinions would be expected to increase by a factor of approx. 1.03, while we hold all

other variables of the model constant. Euro is the variable controlling for a country being member

of the EMS. The incident rate ratio is approx. 0.63 meaning that while we hold all other variables

in the model constant, euro countries are expected to have a rate ratio of 0.63 lower than non-euro

countries.

Figure 2 is a graphical simulation which illustrates the impact of the variable MPsinEAC which is

our variable controlling for the impact of the size of a parliament’s European Affairs Committee.

The MPsinEAC variable is a proxy to test the relevance of the resources that are available for a

parliamentary scrutiny of European affairs. Additionally, it could represent the local value that an

EAC captures within a chamber of parliament. A higher number of MPs could indicate a greater

local value of an EAC in that chamber and of the scrutiny of European affairs in general.

17

Figure 2: Expected number of reasoned opinions and size of a chamber’s EAC

01

02

03

04

05

06

07

0

Exp

ecte

d n

um

ber

of is

sue

d r

ea

son

ed

opin

ion

s

0 10 20 30 40 50 60 70Number of MPsinEAC

All other independent variables held at their mean

Figure 2 plots the impact of the size of a parliament’s EAC with respect to issuing reasoned

opinions. The gray shaded area represents a 95% confidence interval.

Robustness of the results:

To learn more about the appropriateness of our analysis, we rerun the regression by using an OLS

model. Although, we believe that the negative binomial model is the right model for the analysis,

employing an OLS model can give us additional information. OLS is the best liner unbiased

estimator. Moreover, the coefficients can easily be interpreted and the R2 can give us a better

understanding of the explanatory power of our model. The R2 of our OSL model is

approximately 0.46. In addition, we use the OLS model to test for potential outliers by running a

robust regression. In doing so, Sweden is excluded from our sample. We therefore rerun our

negative binomial model without Sweden. The results can be found in the column (6) of the

regression table. We use robust Std. Err. in all estimations given, the Breusch-Pagan and Cook-

Weisberg test suggest heteroskedasticity.

18

5. Conclusions

This paper is a first attempt to empirically assess whether national parliaments use the Early

Warning System for the principle of subsidiarity (EWS) in order to scrutinize European Union

affairs. The EWS was introduced by the Treaty of Lisbon and gives the national parliaments the

possibility of challenging the European Legislator on subsidiarity grounds by issuing reasoned

opinions. Although, this paper showed that the EWS was indeed used by national parliaments,

there is great variation between countries as well as within the parliamentary chambers of

countries. The paper discussed competing explanations of which variables determine this

variation in the activity levels of the national parliaments. Several variables were tested in

explaining cross-parliament variation of the employment of the EWS via reasoned opinions. We

found, that the size of the European Affairs Committee, the level of trust that constituents have in

their national parliament relative to their level of trust in the EU, and policy preferences for EU

policy-making have all had a significant effect on the rate at which parliaments were issuing

reasoned opinions. It should, however, be noted that this analysis has been limited to a first

scrutiny of relevant variables explaining cross parliament variation in the issuing of reasoned

opinions. The important question about variation between policy areas has been neglected and

will be a logical next step for future research.

19

Bibliography

Barber, Nicholas (2005); Subsidiarity in the Draft Constitution. 11 European Public Law 197-

205

Barber, Nicholas (2005); The Limited Modesty of Subsidiarity. European Law Journal, (11) 3,

pp. 308–325.

Bergman, Torbjörn (2000); The European Union as the next step of delegation and

accountability. European Journal of Political Research. (37) 3, pp. 415–429. p.417

Bergman, Torbjörn (1997) National parliaments and EU Affairs Committees: notes on empirical

variation and competing explanations, Journal of European Public Policy, (4) 3, 373-387

Conference of Parliamentary Committees for Union Affairs of Parliaments of the European

Union (cosac); http://www.cosac.eu/national-parliament-european-c/ (accessed 07/13)

Cooper, Ian (2012); A “virtual third chamber” for the European Union? National Parliaments

after the Traety of Lisbon. West European Politics. (35) 3 .pp 441-465.

Cygan, Adam National parliaments within the EU polity – no longer losers but hardly

victorious.p530. available online at http://link.springer.com/content/pdf/10.1007%2Fs12027-011-

0233-9.pdf.

Hölscheidt, Sven (2008); Formale Aufwertung geringe Schubkraft: die Rolle der nationalen

Parlamente gemäß dem Lissabonner Vertrag. Available at:

http://www.iepberlin.de/fileadmin/website/09_Publikationen/integration_2008/volltext/Hoelschei

dt2008.pdf.

Inter Parliamentary EU information eXchange (IPEX); available at: http://www.ipex.eu/IPEXL-

WEB/home/home.do (accessed 08/13)

Downs, Anthony(1957); An economic theory of democracy. New York. Harper Row. p. 28.

Kiiver, Philipp (2011); The early warning system for the principle of subsidiarity: The national

parliament as a Conseil d’Etat for Europe. European Law Review (36) February 2011. Pp. 98 -

108.

Kiiver, Philipp (2012); The early warning system for the principle of subsidiarity. Constitutional

theory and empirical reality. Routledge London New York.

La Porta, Rafel, Florencio Lopez-de-Silanes, Andrei Shleifer and Robert W. Vishny (1997); Trust in

Large Organizations, The American Economic Review 87(2):333-38.

20

La Porta, Rafel, Florencio Lopez-de-Silanes, Andrei Shleifer and Robert W. Vishny(1998); Law and

Finance. Journal of Political Economy (106). Pp. 1113 - 1155.

Maurer, Andreas; Wessels, Wolfgang (eds.) (2001); National parliaments on their ways to

Europe: losers or latecomers? Baden-Baden Nomos-Verl.-Ges.

Moravcsik, Andrew (1998); The Choice for Europe. Social Purpose and State Power from

Messina to Maastricht. Ithaca, NY. Cornell Univ. Press. p.9.

Norton, Philip ed. (1997); Parliaments in contemporary Western Europe. London. Routledge.

pp1-15.

Raunio, Tapio. (1999); Always One Step Behind? National Legislatures and the European Union.

Government and Opposition. 34(2): pp. 180–202.

Paul, Craig (2012); Subsidiarity a political and legal analysis. Journal of Common market studies.

50(1): pp.72-87.p73.

Putnam, Robert D. (1993); Making Democracy Work: Civic Traditions in Modern Italy,

Princeton, Princeton University Press.

Treaty of Amsterdam Protocol on the application of the principles of subsidiarity and

proportionality. Available at: http://eur-lex.europa.eu/en/treaties/dat/11997D/htm/11997D.html

(accessed 09/13).

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the

European Community, signed at Lisbon, 13 December 2007. Available at: http://eur-

lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML (accessed 09/13).

Appendix 1: Results of the negative binomial regression (margins)

+ p<0.1, * p<0.05, ** p<0.01, *** p<0.001

(d) for discrete change of dummy variable from 0 to 1

Marginal effects; t statistics in parentheses

N 38 38 38 38 38 37

(-1.48) (-1.55)

prot80 -0.00739 -0.00752

(1.08) (1.00) (1.02)

second 0.305 0.281 0.285

(-1.45) (-1.55) (-1.95) (-1.72)

euro -0.344 -0.388 -0.468+ -0.434+

(3.08) (3.29) (3.11) (2.94) (2.48)

trustNP_EU 0.770** 0.809** 0.781** 1.045** 0.986*

(3.27) (3.61) (3.24) (3.15) (3.59) (2.47)

MPsinEAC 0.0353** 0.0295*** 0.0277** 0.0296** 0.0313*** 0.0284*

nb_ro

nb_ro nb_ro nb_ro nb_ro nb_ro nb_ro

(1) (2) (3) (4) (5) (6)