Keywords

I have been making the case for the European government up above the level of the nation-state. Proposed reforms focus on a concentration of executive authority on a restructured Commission and the better management and democratisation of the Council. The emergence of a more discernible and accountable federal government also calls into being a more powerful and distinct federal parliament. It is unconscionable, for example, that the European Parliament should be given powers to tax EU citizens without first acquiring full democratic legitimacy. It has been a principle long held in Europe that taxation without representation is coercion.

The assumption by the Parliament of greater responsibilities implies a review of the quality of its own representative capability as well as improvements to its working methods. This will not be easy: we know that self-criticism does not come easily to parliaments, and sitting deputies tend to favour the status quo over constitutional reform of any kind that threatens their re-election. Not that MEPs have always been reticent in seeking more powers for themselves, usually to the irritation of the Commission, Council and national parliaments. More than forty years since it was first directly elected by universal suffrage, the European Parliament has accrued many official functions comparable to those of an established parliament of a nation-state. Through every round of treaty change, the evolution of the Parliament has kept pace with the increasingly state-like character of the Union. Indeed, there has been something of a regular trade-off between more powers for the Parliament and more powers for the European Council.

Since the entry into force of the Lisbon Treaty in 2009, Parliament has worked hard to exploit its new powers. It has played a constructive part in responding to the financial crash, in legislating to combat climate change and regulate the digital era, and, latterly, in assisting economic recovery from the pandemic. On constitutional matters, however, its touch has been less assured. Parliament’s informal political authority has not developed commensurately alongside its formal powers. It is widely held, and not just among its detractors, to have something of a legitimacy problem. One may hope that their experience in the Conference on the Future of Europe will shake Members of the European Parliament out of any complacency about their own institution and ready themselves to be proactive in the next round of the Union’s constitutional development.

The Problem of Party

Nobody really likes political parties, but we know they are an indispensable prop to healthy representative democracy. Political parties are the conduit between citizen and authority, defining political choice for the electorate and establishing career paths for the elected. They sharpen partisan contests and conduct arbitrage within and between parliamentary chambers. In a federal system, political parties play additionally important roles both of assisting transversal cooperation among like-minded political forces in the member states and of facilitating vertical coordination between the different tiers of multilevel governance.

In top EU circles, too, party affiliation has begun to matter in the permanent three-way negotiation between Parliament, Commission and Council in the matter of law making and jobs. Informal party caucusing takes place within the college of Commissioners and before meetings of the European Council. Party caucuses played a big role in the Giscard Convention, and they will do so again in the next.

So the EU needs proper political parties if it is to progress on its federal path. The prototype European parties created at the time of the first direct elections in 1979 have not evolved much beyond being tentative confederations of national parties whose main job is to minimise or disguise differences between their national members during a European election. They are forbidden by national and, absurdly, EU laws from campaigning directly in those elections.Footnote 1 Very few citizens have taken up the offer of direct individual membership of a European party. Candidates for the European Parliament are selected, financed and deselected by national parties—most of which, being congenitally preoccupied by national issues, are usually ignorant about and often jealous of the ever-growing European dimension of politics. As we shall discuss below, the bloc’s national parliaments attempt to network with each other for the purpose of subsidiarity checks. But it is virtually impossible for such disparate parliaments and their homegrown political parties to take a collective view of the general European interest.

In theory, “political parties at European level contribute to forming European political awareness and to expressing the will of the citizens of the Union”.Footnote 2 The European confederations of national parties are even funded quite handsomely from the EU budget. But in real life, these EU parties are marginal to the business of EU politics, having no formal power and little influence. We have noted in Chap. 2 how the parties’ attempt to impose their own Spitzenkandidaten on the European Council has failed. The party groups which run the European Parliament do not hold themselves to be accountable to their respective EU parties. For MEPs, belonging to a parliamentary group is not contingent on membership of an EU party, whose enthusiastic policy papers often bear little resemblance to the stance of the associated groups in Parliament.

Proper federal parties will not emerge courtesy of some natural law but only when they compete against each other for votes and seats at a European Parliamentary election. There is no such competition today. Having no supranational element, the five-yearly elections to the European Parliament remain twenty-seven separate and disconnected national contests. Voters can be blithely ignorant of the personalities and transnational issues at stake. It is hardly a surprise that turnout is low. People do not vote for parliaments, however respectable those parliaments may be, but they vote for or against political parties and their leaders who attract or repel them. The absence of party makes it even difficult for the hardcore Brussels media to distinguish and report on the pan-EU dimension of a European election campaign.

Electoral Reform

Parliamentary Europe is in urgent need of a democratic jolt in the shape of electoral reform. The aim, long discussed, is to inject a genuinely federal dimension into the elections.Footnote 3 The key feature of the reform is to enable a number of MEPs elected from transnational party lists to sit for a pan-EU constituency. Initially, at least, the portion of federal MEPs can be modest, but it must be large enough to render the elections truly European by scale to build a significant cadre of parliamentary leaders who are motivated more by party than by nationality.

Every voter in the European elections will be given a second ballot for the federal list in addition to the one they already cast for their national or regional list. Unlike their first vote, their second for the transnational list will have truly equal value across the Union. Some voters will be non-plussed by the gift of the second ballot but many more will come to enjoy such a concrete expression of EU citizenship—especially those disenchanted by their own lacklustre national parties. The arrival on the scene of European federal parties will expand options and horizons for the electorate. Transnational lists will also be an effective vehicle for protest votes—for example, to enable Greeks to vote for or against German candidates.

The central purpose of the proposed reform is to promote the representation of a political party over that of the member state. However, it is natural that smaller states may fear that only candidates from big countries will make it into Parliament from transnational lists. To ensure diversity, therefore, the lists must be drawn from a substantial number of member states—say, at least two-thirds. Candidates should be ranked on lists pre-ordered by the EU political parties so that, for example, no more than two persons of the same nationality appear in any cohort of ten federal candidates. Successful EU parties will in any case need no encouragement to compose lists that fully reflect the diversity of Europe’s citizenry in terms of age, gender, ethnicity and religion, as well as nationality.

Such electoral reform will fulfil the Treaty of Rome’s original injunction that Parliament should be elected by a uniform electoral procedure.Footnote 4 It will also embody the Treaty of Lisbon’s formulation that Parliament “shall be composed of representatives of the Union’s citizens” (and not, as in previous treaties, of “the peoples of the States brought together in the Community”).Footnote 5

To give effect to these changes, however, requires a proposal from the Parliament, unanimous agreement in the Council, the consent of an absolute majority in the Parliament, followed by the endorsement of national parliaments and implementation in each member state (sometimes needing primary legislation).Footnote 6 It is also desirable to adjust the treaty itself to insist that European elections are conducted “in a free, fair and secret ballot”.Footnote 7 Electoral reform is a complex package, including the setting up of an autonomous EU Electoral Authority to oversee the registration of candidates, the conduct of political parties, the federal ballot and the count. The Electoral Authority should be tasked with protecting the integrity of Europe’s democratic process against foreign interference.

Breakthrough

Although transnational lists have been canvassed by federalist MEPs since 1998, their introduction has been blocked by a coalition of nationalist and conservative opponents. The naysayers argue that no other federal state has adopted transnational lists. They complain that MEPs elected on a federal basis would be unknown to the electorate (as if MEPs elected within their states are very well known). They worry about installing two classes of MEP (which rather neglects the current twenty-seven varieties). In Germany, nobody grumbles about having two types of parliamentarian elected by either local or party ballot: as in the Bundestag, once elected every MEP will enjoy exactly the same rights regardless of constituency.

Brexit removed the UK as an insuperable obstacle to electoral reform as well as provided a surplus number of ex-British seats that can be used for transnational lists. In 2018, French President Emmanuel Macron persuaded the ultra-cautious German Chancellor, Angela Merkel, of the case for transnational lists.Footnote 8 A Franco-German non-paper in 2019 foresaw transnational lists as a priority question for the Conference on the Future of Europe, which duly signalled support. By early 2022, the larger groups in the European Parliament, including the EPP, reached a political agreement.Footnote 9 On 3 May, the Parliament voted by 323 to 262 to send a formal proposal for a regulation to the Council for a transnational list of 28 MEPs.Footnote 10 Much work is now needed if the reform is to be completed in time for the 2029 elections, marking the fiftieth anniversary of direct elections.

Before the introduction of the new voting system, however, Parliament needs to drop its attempt to impose its own Spitzenkandidat for the Commission presidency against the wishes of the European Council. Top MEPs in the elections of 2024 should rather seek advancement within the hierarchy of the House. Parliament should respect the EU’s implicit interinstitutional balance and stick to the treaty rules—which give the job of nominating the Commission president to the European Council and the right of his or her election only thereafter to MEPs.Footnote 11 It will be tactical, as well as tactful, for MEPs to take more seriously their treaty-given right to reject the nominee of the European Council, voting by an absolute majority. In that case, the European Council has one month, acting by QMV, to come up with a better candidate. In the grander scheme of things, it is more conventional for a parliament to block a government appointment than the other way around.Footnote 12

There will always be those who hanker after a US-style direct election of an EU president. That might come one day. But there can be no EU-wide election (or for that matter a pan-EU referendum) without serious federal political parties. And there will only be serious federal political parties once they have been obliged to fight each other on transnational lists for the European Parliament. Before jumping to a presidential regime, parliamentary Europe needs to build solid party foundations. The Union’s solution to the problem of democratic representation need not ape other federal unions; instead, it can be distinctively and proudly European—something that could be a global pioneer in shaping the paradigm of post-national federal democracy.

Representing the Citizen

The treaty declares quite simply, first, that the Union “shall observe the principle of equality of its citizens”;Footnote 13 second, that “citizens are directly represented at Union level in the European Parliament”;Footnote 14 third, that “every citizen shall have the right to participate in the democratic life of the Union”;Footnote 15 and fourth, that Parliament “shall be composed of representatives of the Union’s citizens”.Footnote 16 EU citizenship has a very specific definition under the treaty and excludes those who are not nationals of an EU state. One of the principal civic rights of an EU citizen, indeed, is to vote and stand as a candidate in elections to the European Parliament.Footnote 17 So far so good.

However, we also find that the concept of degressive proportionality is introduced in the rules concerning the composition of the European Parliament which say that “representation of citizens must be degressively proportional”.Footnote 18 This oxymoronic formula, which is common to federations, requires some explanation. In the German Bundesrat, for example, each Land is given a graduated weighting of between three and six votes despite the vast disparity in population numbers.Footnote 19 In the context of the European Union, the notion of degressivity is introduced in order to manage the large disequilibrium in terms of population size between Malta, the smallest, and Germany, the largest member state. At the Convention and thereafter in the Treaty of Lisbon, it was agreed that the more populous states would accept to be slightly under-represented in the Parliament so that the less populous states could be better represented.Footnote 20 Thus an MEP from a smaller state represents fewer people than an MEP from a larger state. That being so, the vote of every citizen does not really have an equal value.

We should note the treaty’s stipulation on the minimum and maximum representation. The six MEPs for the smallest state (then Luxembourg) were agreed in order to allow a fair spread between Luxembourg’s three political parties. The ceiling of ninety-six MEPs for Germany was accepted by the German government of Angela Merkel in her valiant efforts to bring the EU’s constitutional wrangling to a conclusion. Neither six nor ninety-six has the power of magic, and both thresholds could be reopened at the time of a future treaty revision. As could the question of the overall size of the House (751). But not now.

As we have seen, the treaty, purposedly, gives the right of initiative on electoral reform to the Parliament. This right is extended to the business of reapportioning parliamentary seats among the member states—a task which will in any case have to be undertaken afresh when transnational lists are introduced for a quota of federal MEPs.Footnote 21 In the past, the apportionment of seats between states has been an ad hoc, and frequently unseemly, scramble. To stabilise the Parliament and to ensure a fair distribution of MEPs between states of different sizes according to the treaty-based principle of degressive proportionality, an arithmetical formula for the regular and systematic reapportionment of seats needs urgently to be agreed upon.

The calculation of seat apportionment between the states respecting degressive proportionality is based on the UN-acknowledged gold standard of the total resident population, as collated by Eurostat, whether those counted are EU citizens or not. In recent years there has been large-scale migration of citizens across the EU taking advantage of the freedom of movement, mainly from east to west. The EU has been firm in sticking to the UN formula.Footnote 22

The rationalisation of the system for composing the Parliament should reassure the German Federal Constitutional Court which, amongst others, criticises the present haphazard carve-out of seats. In its judgment on the Lisbon Treaty, the German Federal Constitutional Court, which sits in Karlsruhe, noted that because the votes of all EU citizens are not strictly equal in value, the European Parliament lacks the full legitimacy of being democratically elected.Footnote 23 Parliament is merely “a representative body of the peoples in a supranational community, characterised as such by a limited willingness to unite”. It is important, then, that the next phase of constitutional reform includes a methodical adjustment to the matter of seats.

The optimal formula would be to give every state five seats and allocate the remaining seats proportionately to the size of the population, using the divisor method with upward rounding.Footnote 24 This system, known as CamCom, would meet all the requirements of the treaty and allow for the smooth redistribution of seats every five years to take account of demographic shifts, any changing number of member states and any changing quota of transnational MEPs. The European Council hopes that the formula Parliament will propose (and it must agree) will reapportion seats in an “objective, fair, durable and transparent way”.Footnote 25 Unfortunately, Parliament has yet to act on this matter.

In Annex I, we illustrate how the reformed Parliament would be recomposed on its 2019 basis under the CamCom system and given a transnational list of forty-six MEPs (which would fill all the currently available empty seats). A ‘power compromise’ variant of the CamCom formula would also be available to mitigate the impact of seat loss at any one election.Footnote 26

Representing the States

Adjusting the balance of seats among member states in the Parliament, the first chamber of the legislature, calls for a review of the balance of power between the states in the Council, the second chamber. Sensitivity about relative size is even more acutely felt in the Council than in the Parliament. The question of voting weight was fought over especially heavily at the IGC which concluded in the Treaty of Nice. The Lisbon Treaty altered the system entirely, laying down that QMV in the ordinary legislative procedure would be formed by 55 per cent of states representing 65 per cent of the population.Footnote 27 But this is qualified by the extra condition that a blocking minority has to be formed in at least four states.

As population size is one of the two factors that make up the voting system in the Council, just as it is for the Parliament, it may seem odd that the principle of degressive representation does not feature at all in these provisions. The fact that, under Lisbon, voting weight in the Council is now directly proportional to the size of the population gives the more populous states a significant advantage in meeting QMV thresholds. There is therefore a strong case for introducing the same federalist principle of degressive proportionality into the voting systems of both legislative chambers. As Lionel Penrose argued, changing the voting power of states to accord to the square root of their population reduces the differentials between large and small states.Footnote 28 Such a reform was suggested by Poland (highly sensitive about its place in the European pecking order) during the constitutional negotiations twenty years ago: it is time to revive it.Footnote 29

In Annex II, we illustrate the square root system for the Council. Ordinary QMV could be reached when at least half of the states achieve more than half of the total of the square root of the population. Super QMV, deployed as we have suggested for organic laws, could require, say, two-thirds of the states to achieve two-thirds of the square root total.Footnote 30

The democratic legitimacy of the Union is founded on a compromise between the classic electoral principle of one person one vote and the general principle of equality among the member states.Footnote 31 Tension between states of different sizes is a natural characteristic of federal systems and must be managed constitutionally. The installation of transnational lists will ensure a vote of equal status for each EU citizen who chooses to use their second ballot to elect an MEP in the pan-EU constituency. The addition of the principle of degressive representation to the Council voting system will ensure equity between the two chambers of the legislature. Taken altogether, these reforms will enhance the representative capability of both Parliament and Council and buttress the federal architecture of the Union.

Right of Initiative

Another area where the treaty accords the right of legislative initiative to the European Parliament rather than the Commission concerns the establishment of a system of parliamentary inquiry.Footnote 32 Here again, however, MEPs have failed to punch their weight. According to the current system, Parliament’s committees of inquiry lack the power to subpoena witnesses, have only limited access to documents and have no way of imposing sanctions and penalties on transgressors. Decent parliaments are tough inquisitors.

Many MEPs appear to want to change the treaties to give Parliament an unlimited right of legislative initiative. It will be difficult to justify such a proposal, however, unless Parliament shows itself capable of exploiting to the full the limited rights of initiative it already enjoys. Moreover, that far-reaching demand would have to be judged against the effectiveness of the current treaty rule whereby Parliament—voting by absolute majority and on the basis of a detailed justification—can ask the Commission to initiate a new law.Footnote 33 This practice works. The Commission responds to Parliament’s properly reasoned initiatives, and there is no instance of a blank refusal by the Commission to entertain a proposal coming from MEPs.

If they wish to go further, MEPs should be especially careful because the granting of an automatic right of legislative initiative to the Parliament could immediately be trumped by the Council demanding exactly the same privilege.Footnote 34 In areas of cooperation in police and judicial affairs, where under the Lisbon Treaty the Council is already granted the exceptional privilege of sharing legislative initiative with the Commission, there has been tension and confusion.Footnote 35 If this practice were to be inflated generally, the Commission would be much enfeebled and the precious ‘Community method’ invented by Monnet would be shattered.

Nevertheless, if a compromise exists it would involve adjusting the treaty to provide that, in the case where, after a period, the Commission were to fail to justify a refusal to accept a specific legislative proposal of the Parliament, Parliament’s proposal should stand as its first reading of a draft law under the ordinary legislative procedure.Footnote 36 MEPs will know, however, that a draft law unsupported by the Commission is highly unlikely to make headway in the Council.

There could also be a case for allowing individual MEPs to fly legislative kites outwith the constraints of their committee or group, perhaps being allotted a slot in the timetable by ballot. But no national parliament in Europe follows the US Congress in granting an unfettered right to any individual MP to table a draft law. Where the right of legislative initiative exists, it is strictly circumscribed. In most member states it is the government of the day which proposes laws and steers the legislative agenda: again, what the EU misses more than a hyperactive Parliament is a decent capable government.

Checks and Balances

At present, oral and written parliamentary questions can be directed only at the Commission.Footnote 37 MEPs need to acquire the right to question the Council when it acts in its executive rather than its legislative capacity. The occasional appearance of the president-in-office at plenary sessions of the Parliament is an insufficient check, especially if the serving minister is elusive or ill-informed. The President of the European Council agrees to answer questions from MEPs about his own agenda, but he refuses to take formal questions about the internal affairs of the body he chairs or to elaborate on formal communiqués. Michel’s appearance in Parliament’s plenary after each meeting of the European Council is an inadequate method of scrutiny and does neither institution a service. The problem of lack of accountability of the European Council for the taking of its legally binding executive decisions will be resolved simply, as we propose, if its chair is taken by the next president of the Commission. Tougher scrutiny of the EU’s heads of state and government may even sharpen their performance and improve the Union’s overall output legitimacy.

In addition, however, Parliament should be given the additional right to take the European Council to the Court of Justice on grounds of ultra vires if the chiefs stray outside their powers when they act either legislatively or politically. The present rule only permits possible action by the Parliament against the European Council when it takes legally binding executive decisions.Footnote 38 Lifting the restriction on legal actions against the European Council would place it on a par with the Council, Commission and European Central Bank.

Parliament’s Ombudsman, Emily O’Reilly, is proving to be an effective critic of the institutions in matters of transparency and access to documents. She is a tough defender of the rights of the citizen against maladministration by the Commission.Footnote 39 The Ombudsman’s powers should be increased to permit her leave to refer to the Court of Justice as amicus curiae in cases concerning a breach of the Charter of Fundamental Rights.

The Commission fares better than the Council in terms of parliamentary accountability. Even in the difficult circumstances of the coronavirus pandemic, Commissioners have had to justify themselves regularly before parliamentary committees, which in many cases evince a high degree of specialist knowledge about the relevant dossiers. In any exercise of treaty revision, MEPs will wish to re-open the question of holding individual members of the Commission to account in case of a misdemeanour. At present, Parliament has the power only to censure the Commission as a body leading to the resignation of the whole college.Footnote 40 A modest reform, short of sacking individuals, would be to enable the Parliament (as well as the Council) to vote to reduce the salary or pension of any errant Commissioner.Footnote 41 Going further, the Parliament should have the right conferred on it, equal to the Council, to arraign a failing member of the Commission before the Court of Justice with an eye to early retirement.Footnote 42

Cuisine Interne

The European Parliament is at its most assured amid the thicket of EU law making [Corbett et al.]. The combination of committee and group discipline helps MEPs level up to their co-legislators in the Council when enacting the Commission’s complex and often large legislative packages, such as the current ‘Fit for 55’ on climate action and green transition. The need for intelligibility at a trilogue with Commission and Council, amendment by amendment, does wonders for Parliament’s coherence. Faced with a lively external threat, Parliament also showed an impressive degree of cohesion over Brexit in the period 2016–2020 [Barnier].

It is when the Parliament steps away from the conventional left-right dynamic and confronts issues across the federalist-nationalist fault line that it works less well. In the realm of constitutional affairs, where the Commission is largely unhelpful, a disunited Parliament faces an obdurate Council. Relatively isolated as they are, without the prop of political parties or public opinion, MEPs must get better at the business of coalition building on constitutional reform.

Parliament is the least impressive when it meets in plenary, where sessions badly need an injection of vitality (and leadership) if the House is to achieve a more sustained, meaningful dialogue with President von der Leyen and her colleagues. One expects that the introduction of transnational lists will produce MEPs of professional calibre and high media profile. Modest changes to internal parliamentary rules would encourage the promotion by merit of talented MEPs to the important posts of committee chair, group coordinator and rapporteur. Groups should rely less than they do now on placement by virtue of the size of national delegation according to the D’Hondt proportionality formula. Here again, more emphasis on party and less on nationality would ginger up the institution and enhance input legitimacy.

Greater transparency over the internal operation of the House will alter the picture of bland mediocre consensus which all too often characterises the public image of Parliament. As the Commission, reduced in size and more political, begins to think and act like the government of the Union, so will the normal dynamics of government and opposition percolate through to the Parliament. Once stable majorities and minorities begin to shape Parliament’s policy and law-making processes, citizens will be in a better position than they are now to identify with the government at the European level.

Taken together, these reforms would revitalise the European Parliament and equip it to undertake the multifarious tasks befitting a strong parliament for a federal union. The Conference on the Future of Europe has not forgotten to remind the Parliament that one of its most important constitutional powers is the right to initiate a revision of the treaties.Footnote 43 And the next step after the Conference is to ensure that the revision of the EU treaties is preceded by a constitutional Convention. Happily, as we have seen, Parliament has the absolute right to insist on the calling of a Convention.Footnote 44 Immersion in a Convention will do wonders for the profile and cohesion of the Parliament—as well as provide a rite of passage for EU political parties.

Meanwhile, MEPs should be busy refining their proposals for deeper political integration, guided by threefold objectives of efficacy, accountability and transparency. Parliament’s priority for treaty change should be the elimination of the whole category of special laws of the Council and the extension of co-decision with the Council to all legislation. Its overall constitutional priority must be the installation of an electoral procedure involving transnational lists and federal parties in time for the 2029 elections.

National Parliaments

National parliaments have something of a walk-on role in the drama of EU politics. But they should not be dismissed as unimportant. If EU democracy is to reflect the diversity and pluralism of European society, it needs to have a continual dialogue with elected representatives at many levels.

From the treaties we learn that members of the European Council and Council are democratically accountable to their national parliaments.Footnote 45 National parliaments “contribute actively to the good functioning of the Union” by seeing to it that the principle of subsidiarity is respected by the EU institutions.Footnote 46 If, within an eight-week deadline, one-third of the parliaments flag a possible infringement of subsidiarity in any draft law—a ‘yellow card’—the Commission may review the proposal.Footnote 47 If over half the national parliaments object to an infringement—an ‘orange card’—the Commission must justify itself, amend or withdraw the proposal. In that circumstance, 55 per cent of the states in the Council or a simple majority in the Parliament may scrap the proposal. National parliaments may also bring an action against any law before the Court of Justice on the grounds that it infringes subsidiarity.Footnote 48

The insertion of this mechanism into the Lisbon Treaty, typical of a confederation, implies that the job of national parliaments is to defend national sovereignty against European incursion. British eurosceptics at the Convention and consistently thereafter tried to introduce a ‘red card’ whereby national parliaments could simply block any draft EU legislation they disliked. Quite rightly, they have been thwarted. No national parliament that has a proper grip on the behaviour of its own government ministers when they go to Council meetings in Brussels is in need of an EU red card.

In practice, despite endless fuss about the methodology, the elaborate early warning mechanism has proved virtually redundant (as some of us intimated at the time of the Convention). The yellow card has only been used three times. The first, in 2012, led to the withdrawal of a draft law on the right of labour to take collective action. In 2013, the threshold was reached in objection to a proposal for a European public prosecutor’s office, but the reasoned opinions were contradictory, some arguing the measures went too far, others not far enough. In the end, the law was passed under the enhanced cooperation procedure. The third, in 2016, concerned the posted workers directive, which was latterly altered by the Commission and legislature. All in all, the evidence is that the EU institutions are at pains to respect the subsidiarity principle. It also suggests that member state governments are not particularly motivated to deploy their national parliamentary majorities (in so far as majority governments exist) as a weapon to disrupt the EU’s ordinary legislative procedure.

Scrutiny Procedures

National parliaments have numerous rights to be informed directly by the Commission about EU developments.Footnote 49 They will be part of any Convention to change the treaties.Footnote 50 They have the right of veto to the use of the passerelle clauses.Footnote 51 They have a share in the evaluation of policies concerning freedom, justice and security, including, specifically, the scrutiny of the operation of Eurojust and Europol.Footnote 52 National parliaments and the European Parliament together determine methods of interparliamentary cooperation, the principle manifestation of which is COSAC, the conference of national committees on EU affairs. This body meets twice a year to exchange the (mainly divergent) views of national MPs with MEPs and the Commission.

There is a wide range of interparliamentary fora involving national MPs with MEPs. Joint committee meetings on economic and monetary affairs and on security and defence issues can prove valuable to Brussels policy makers, although doubtless many MPs return home dissatisfied at their reception. COSAC will continue to discuss ways to improve these processes and is toying with the idea of a ‘green card’ whereby national parliaments might propose new legislative initiatives to the Commission. In addition, some national parliaments send in their opinions on many matters outside the narrow constraints of subsidiarity, although the practice is patchy: the Italian Senate seems to send to Brussels every opinion it reaches; the German Bundestag sends none.Footnote 53 Anxious to foster political dialogue, the Commission undertakes to respond to these opinions politely.

National parliaments could usefully play a larger role in scrutinising how EU law is transposed into national law and regulation at state level, but their scrutiny committees have to work hard to keep track of delegated and implementing acts. At the end of the day, however, national parliaments should concentrate on what they do best, which is to hold to account their own ministers for their performance in the Council (and of their head of government at the European Council). Here national parliaments can and do benefit from an exchange of information about best practices, much of it coming from Scandinavia.

Direct engagement with the EU institutions is of special relevance to those parliaments of eurozone countries that wish to open up debate during an annual ‘European semester’ about the convergence and structural reform programmes initiated by the Commission.Footnote 54 European Parliamentary committees provide a useful platform for the hearings of relevant national MPs, especially rapporteurs, and can assist national parliaments in achieving a degree of scrutiny of their own national finance ministers that might otherwise elude them. Involvement of national parliaments strengthens the sense of national ownership of economic policy measures, something which, for example, was woefully absent during the financial crisis between the Greek parliament and the EU’s troika.

As the EU continues to develop its common approach to fiscal policy, it is important that the debates about parliamentary accountability are deepened. But the more far-fetched proposal—advanced by Thomas Piketty and others—for a confederate eurozone assembly made up of national MPs should be fiercely resisted.Footnote 55 The European Parliament is the parliament of the Union just as the euro is the currency of the Union. In time all member states are intended to join the eurozone. Adding to the institutional complexity of EU governance by creating yet another parliamentary organ would be bound merely to dilute democratic accountability and jeopardise coherent government. Only if a special budget is created for the eurozone could there be a case for non-eurozone MEPs to register abstentions in voting, but there is no case for a formal partition of the House between euro and non-euro MEPs. (Some of the most valid critiques of EMU have come from non-eurozone quarters.)

Relying on a combination of national parliaments to enhance the democratic legitimacy of the Union is a fool’s game. The twenty-seven parliaments, usually with two chambers, work at a separate pace to their own timetables and in their own languages; their resources, powers and protocols are different, as is their level of ambition and political stance with respect to European affairs. Although they each have a constitutional role, experience shows that the scope for formal coordination between national parliaments is limited. Informal collaboration, however, especially on a party-political basis has much greater potential—at least once federal parties begin to emerge at the European level, courtesy of transnational lists.

It is hardly normal for state parliaments to want to interfere directly in the matter of federal government. The careful rationalisation of competences and the delimitation of powers laced with subsidiarity is what allows federations to happen. The Lisbon Treaty points in the right direction and strikes the right balance. The subsidiarity early warning mechanism should be kept as it is for national parliaments by way of a constitutional backstop. But national parliaments should trust the European Parliament to do its own job.