Dr. Katarzyna Granat, Junior Research Fellow & Marie Curie Fellow, Durham Law School 

Donald Tusk’s “A New Settlement for the United Kingdom within the European Union” (Draft Decision of the Heads of State or Government), presented on February 2, 2016, provides an initial concrete outline for enhancing the role of national parliaments within the UK’s renegotiation efforts. This note compares the proposed changes with existing mechanisms under the Lisbon Treaty.

Tusk’s proposal (Section C, points 2-3) suggests that reasoned opinions from national parliaments, submitted under Article 7.1 of Protocol No. 2 (“on the application of the principles of subsidiarity and proportionality”), should be “duly taken into account” by all institutions involved in EU decision-making. National parliaments would have 12 weeks to submit reasoned opinions on draft EU legislation, citing violations of the subsidiarity principle. If these opinions represent over 55% of allocated votes (at least 31 of 56, with each national parliament having two votes, one per chamber in bicameral systems, excluding votes from parliaments not participating in the legislation’s adoption), the Council would hold “comprehensive discussions.” If the draft legislation remains unchanged despite national parliaments’ concerns, the Council would cease its consideration.

This proposal differs from the Lisbon Treaty’s existing “yellow” and “orange” card mechanisms in terms of timeframe, thresholds, and effects.

Firstly, the Lisbon Treaty allows national parliaments eight weeks to submit reasoned opinions to the Commission, European Parliament, and Council (Article 6 of Protocol No.2). Tusk’s proposal extends this to 12 weeks, giving national parliaments more time for analysis and drafting, a change frequently requested by national parliaments and likely welcomed. However, it’s unclear if this extension also applies to “yellow” and “orange” card procedures.

Secondly, while vote allocation remains the same, Tusk’s proposal sets a different threshold for triggering action. The “yellow card” requires reasoned opinions representing at least one-third of allocated votes to flag a Commission proposal’s non-compliance with the subsidiarity principle. The “orange card”, applicable only in ordinary legislative procedures, requires a simple majority. Tusk’s proposal, in contrast, requires 55% of votes – meaning 19 votes for a “yellow card,” 29 for an “orange card,” and 31 for this new procedure. This new threshold is only slightly higher than the “orange card” threshold, which has never been met.

Thirdly, the most significant difference lies in the consequences of triggering this new procedure. The “yellow card” has limited impact: the Commission reviews the draft and decides whether to maintain, amend, or withdraw it, providing justification (Article 7.2 of Protocol No. 2). For the “orange card,” the Commission has similar options, but maintaining the proposal requires a reasoned opinion demonstrating its compliance with subsidiarity. The European Parliament and Council then decide, considering arguments from both the Commission and national parliaments. If 55% of Council members or a majority of the European Parliament finds a subsidiarity breach, “the legislative proposal shall not be given further consideration” (Article 7.3 of Protocol No. 2). Tusk’s proposal bypasses the Commission’s response phase, moving directly to the Council. If the proposal isn’t amended to address national parliaments’ “concerns,” Member State representatives in the Council “will discontinue” consideration. This differs from the “orange card,” which only halts proceedings if the Council identifies a subsidiarity breach.

Notably, crucial details are absent, such as who amends the proposal and ensures national parliaments’ concerns are met. The Commission has previously been satisfied that its proposals addressed concerns outlined in reasoned opinions. However, Tusk’s proposal seems to demand a more proactive response from EU institutions compared to the “orange card.”

Furthermore, Tusk’s proposal doesn’t grant national parliaments veto power over Commission proposals. Discontinuing the legislative process depends on whether the “concerns” are addressed, with the final decision residing with the Council, not national parliaments.

Interestingly, Tusk’s proposal focuses solely on reasoned opinions regarding a proposal’s compliance with the subsidiarity principle. However, during subsidiarity scrutiny under Protocol No. 2, national parliaments often critique aspects beyond strict subsidiarity, such as the legal basis, proportionality, or political merits of a proposal. It remains unclear whether such a broad approach would be adopted in the Council under Tusk’s proposal. If so, amending a proposal to adequately address all concerns raised by national parliaments might prove challenging, potentially making it easier to halt the legislative process due to unmet demands.

Therefore, a broader interpretation of Tusk’s proposal might align with Cameron’s aim of empowering national parliaments to “stop unwanted legislative proposals” by allowing a threshold of national parliaments to do so, though Cameron also emphasized the need for full implementation of the subsidiarity principle. The proposed draft declaration “on a subsidiarity implementation mechanism and a burden reduction implementation mechanism,” obliging the Commission to review existing EU legislation for compatibility with subsidiarity and proportionality principles to ensure “full implementation,” might offer a more concrete solution.

Lastly, requiring discussion within the Council, as per the tabled proposal, could mean that the ministers’ flexibility towards their national parliaments’ “concerns” and their ability to reach a consensus on continuing or halting the legislative procedure might be influenced by the nature of the relationship between parliaments and their respective governments.

In conclusion, compared to the rejected “red card” from the Convention on the Future of Europe, which sought a two-thirds majority of national parliaments to compel the Commission to withdraw a proposal, Tusk’s proposal has a lower threshold and doesn’t immediately halt the legislative process. It could be characterized as a “red card light,” offering a compromise without significantly disrupting the EU legislative system.

Barnard & Peers: chapter 5

Photo credit: TheSun.co.uk