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National parliaments in the democratic politics of the EU: the subsidiarity early warning mechanism, 2009–2017

Abstract

With the Early Warning Mechanism (EWM), the Treaty of Lisbon empowered national parliaments to collectively intervene in the EU’s legislative process. Yet at first glance their impact seems to have been minimal. Between 2009 and 2017, national parliaments only formally triggered the EWM on three occasions (with a ‘yellow card’), and in two of those cases they were overruled. However, if we broaden the analysis to include many other cases where national parliaments came close to triggering the EWM (but fell short), and expand the timeline to look at their long-term influence on the legislative process, a more nuanced picture emerges. National parliaments have not had much success in using the EWM to block unwanted legislation—i.e. causing it to be rejected, withdrawn, or permanently deferred. However, they have had some success in using the EWM to engage in policy dialogue with EU institutions. In a few cases, national parliaments’ interventions had a discernable, yet unheralded, impact on the final legislative outcome—in part by influencing their respective governments’ negotiating positions. More generally, the EWM has legitimized the role of national parliaments, individually and collectively, as EU-level actors, and in so doing has enhanced the democratic legitimacy of the EU.

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Notes

  1. 1.

    The yellow card threshold is lowered to one quarter (14 votes) in the fields of police cooperation and judicial cooperation in criminal matters, which applied to the EPPO proposal (discussed below). .

  2. 2.

    In EU-27, prior to the accession of Croatia on July 1, 2013, the yellow card threshold was 18 votes and the orange card threshold was 28 votes.

  3. 3.

    There were 40 chambers prior to Croatian accession on July 1, 2013. In the current EU-28, thirteen states have bicameral parliaments and fifteen have unicameral parliaments. In two bicameral parliaments (those of Ireland and Spain) the two chambers exercise joint subsidiarity scrutiny and customarily issue a single RO for both.

  4. 4.

    Although the Political Dialogue was begun in 2006, the number of contributions increased dramatically after 2010, which arguably shows that it is complementary to the EWM rather than an alternative method of scrutiny.

  5. 5.

    Nine votes were half those necessary for a yellow card prior to July 1, 2013; after that date, it was ten votes.

  6. 6.

    The minutes of these meetings and related documents are available on the COSAC website, at http://www.cosac.eu/54-luxembourg-2015/cosac-working-group-30-october-2015 and http://www.cosac.eu/59-bulgaria-2018/cosac-working-group-26-march-2018, accessed September 13, 2018.

  7. 7.

    I am grateful to an anonymous reviewer for helping to clarify this point.

  8. 8.

    The Commission appeared to endorse a narrow understanding of the EWM in its response to the EPPO yellow card, in which it only considered the subsidiarity-based arguments in the ROs and set aside those that raised other concerns, such as legal basis, proportionality or policy substance (Cooper 2017, pp. 23, 43).

  9. 9.

    The Fourth Railway Package market pillar—a level playing field or more of the same? International Railway Journal, January 17, 2017.

  10. 10.

    The New Rulebook, Port Strategy, May 5, 2017.

  11. 11.

    Posted workers: Macron’s first victory in reforming the EU, Euractiv, October 24, 2017.

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Cooper, I. National parliaments in the democratic politics of the EU: the subsidiarity early warning mechanism, 2009–2017. Comp Eur Polit 17, 919–939 (2019). https://doi.org/10.1057/s41295-018-0137-y

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Keywords

  • Democracy
  • European Union
  • National parliaments
  • Subsidiarity
  • Treaty of Lisbon