Public Support for the European Union: Building TrustMay 14, 2014 - nr.88
The EU is generating much public debate, particularly in a year in which the elections for the European Parliament are imminent and EU budget rules have a bearing on painful cuts in current public spending.
Dissatisfaction with the EU is not confined to the less educated (who are often perceived as among globalisation’s losers). It is expressed across a broad social spectrum in criticism of the rapid pace of integration (particularly on the financial and economic front), the free movement of persons and what many regard as the unduly rapid enlargement of the EU by over ten new member states. Citizens have the feeling that they are being swamped by EU rules and have no influence over EU decision-making and the institutions in Brussels. There is also a heated political debate on sovereignty and what is seen as a creeping transfer of powers to the European Union. Nor is the EU the sole focus of this resistance; there is also a crisis of confidence affecting all tiers of government. Falling turnout rates at national, provincial and local elections illustrate this growing lack of confidence in representative democracy.
Against this background the government submitted a request for advice to the Advisory Council on International Affairs (AIV) in December 2013, in which it raised the following questions:
- Where, according to the AIV, does the key to strengthening democratic legitimacy lie (national parliament, European Parliament, a combination of the two or elsewhere)?
- What would be a good balance between effectiveness of control and legitimacy of control of EU governance at the various levels?
- What are the limits of the intergovernmental and Community methods (and hybrid forms)?
In answering these questions the AIV has taken as its point of departure the public’s lack of trust in politics and government and hence in existing institutions. The AIV believes that institutional modifications to certain elements could help to restore public trust in the EU, but that this alone is not sufficient. Another key aspect of the issue is how those in authority discharge their responsibilities and to what extent they are prepared to enter into an open debate with interested citizens about controversial European issues. The question of how far the integration process can or should go plays an important role here. It is reasonable to expect national political leaders, in particular, to clearly acknowledge that they themselves form part of the EU decision-making system.
In its report the AIV first examines the current state of public trust and then considers what types of democratic legitimation exist and to what extent the Treaty of Lisbon has contributed to the democratic legitimation of the EU. The AIV devotes extra attention to the democratic legitimacy of the entire package of financial and economic crisis measures that have culminated in what is known as the European Semester, since this policy field is the best illustration of the tensions that underlie the above three questions. The introduction of the euro has resulted in far-reaching, mainly intergovernmental European measures that directly impact the functioning of the State and raise questions about democratic legitimacy.
Transfer of powers
The AIV believes that citizens are being wrong-footed in the debate on what is described as the ‘creeping’ transfer of powers. Powers are not being transferred by stealth. Both government and parliament are actively involved in intergovernmental and Community decision-making. Moreover, the AIV does not perceive the issue of the transfer of powers in terms of loss or gain. National sovereignty is closely bound up with the capacity to act. At the core of the debate is the question of the level at which the Netherlands’ capacity to act would be greatest. In cases where the pooling of powers at EU level would best serve Dutch interests, the AIV considers this to be the preferred option. The AIV believes that in such cases oversight efforts should focus on how EU powers are exercised.
From the broader perspective of democratic legitimacy and restoring public trust, the AIV concludes that the focus should not be solely on the operation, reorganisation and democratisation of certain institutions and procedures as such. Instead, the key to achieving the stated objective lies in the adoption of a wide range of measures and actions and in the interplay between them, with an important role being given to how political leaders interpret their remit. In other words, a differentiated solution is preferable to a one-dimensional approach. In the AIV’s opinion, it is also necessary to strengthen not only the democratic legitimacy but also the administrative and legal legitimacy of national institutions. To this end the mechanisms for monitoring the quality of the rule of law should definitely receive the attention they deserve. The AIV would point out that although democratic legitimacy may be properly regulated in theory, it has shortcomings in practice, and measures should therefore be taken to strengthen legitimacy in terms of both input (influence of citizens) and output (implementation).
The AIV is convinced that the only way in which European policy can gain sufficient democratic legitimacy is if government ministers and members of parliament recognise that EU decision-making and the direction of European integration is a shared responsibility of the member states and the EU. This means that politicians should take greater responsibility for their own role. Greater ‘ownership’ implies that they should enter into a regular, wide-ranging and open debate with citizens on how the EU is developing and about specific EU proposals, and should define their own position in this debate. The utmost should be done to avoid giving the impression that citizens are being presented with faits accomplis.
The AIV also feels that the EU benefits from having strong member states and national institutions. The Treaty of Lisbon has introduced a number of innovations relating to the involvement of national parliaments and citizens. Although this is a good start, the innovations have by no means yet become standard practice. The AIV believes that the national parliaments should have strong powers to scrutinise EU legislation both before and after its adoption. This is why it takes the position that parliaments should in future not only be able to assess legislation for compliance with the principle of subsidiarity, but also to express an opinion on its proportionality and legal basis. In this way parliaments could conduct a more substantive and hence also broader debate. The Dutch parliament actively seeks contact with other parliaments, but its role could be strengthened if there were to be a closer connection with the European agenda and if the prime minister and the leaders of the parliamentary parties were themselves to take part in the annual parliamentary debate on the State of the European Union. The AIV therefore recommends holding a regular debate or question time on EU matters alongside regular accountability debates. The national parliament can serve as a bridge between the public and the EU by actively consulting citizens about proposed EU policy and the Commission’s work programme. This role can be amplified still further. A debate about the strategic policy goals of the European Council can also be conducted between the government and the House of Representatives.
National institutions such as the Netherlands Bureau for Economic Policy Analysis (CPB) can also contribute to the EU’s effectiveness, enhancing its overall democratic legitimacy and building public trust. The AIV is convinced that the EU benefits from the existence of strong and reliable institutions for macroeconomic policy at national level. The problems responsible for the euro crisis were due in large part to defective national socioeconomic institutions, such as insufficiently capable and insufficiently independent budgetary authorities and economic policy analysis institutes, failing bank supervisors and poorly functioning tax authorities. In the Netherlands, the Court of Audit, the CPB and the Council of State are all involved in the European Semester. The AIV believes that the CPB’s independence is an important factor in ensuring that the statistics supplied to the EU are reliable and verifiable, and would argue that the independent status of such institutions, including the CPB itself, should be regulated by law in all member states. The AIV is not in favour of centralising the collection of data in the hands of the European Commission. The member states themselves should remain responsible, although the AIV does feel that it would be worthwhile arranging for independent assessment of the functioning of the national institutions of member states, as for example in the case of aviation safety. The AIV notes that there is a trend towards giving the Council of State a role in determining whether the Netherlands complies with the EU’s budgetary rules. The AIV believes this to be inadvisable as it will unnecessarily increase the (political) burden on the Council of State and make heavy demands on its already limited financial and economic expertise.
Besides politicisation of the EU at national level, as described above, the AIV also advocates politicisation at EU level. The politicisation being sought through the election of the Commission President has just started with the nomination of candidates by the political families in the European Parliament. The AIV welcomes this development.
As regards the Union’s economic and monetary policy the AIV notes that the procedures already set in motion have yet to reach full maturity. Although the Dutch House of Representatives seems to be making every possible effort, it should realise that the relevant knowledge is concentrated among too few members. The AIV therefore recommends not only the establishment of a special parliamentary committee for the European Semester, but also an expansion of the support provided by the civil service. The AIV is also in favour of intensive dialogue between the House of Representatives and the EU Commissioner responsible for country-specific recommendations, resulting in a negotiating mandate for the government. The cooperation between the House of Representatives and the European Parliament on economic governance must be strengthened through the interparliamentary process, for which provision is made in article 13 of the Fiscal Stability Treaty. In the AIV’s opinion, the establishment of a Eurozone Parliament would not help to bring citizens closer to European governance. Indeed, if anything the existence of a second parliament at EU level would cause confusion among the public. The position of the EU Commissioner responsible for economic and monetary affairs needs to be bolstered. The AIV believes that the status of this position should be similar to that of the High Representative for Foreign Affairs. This would enhance not only the Commissioner’s authority but also his or her independence. In the AIV’s opinion, the administrative legitimacy of the European Commission could be increased if its size were to be reduced. The AIV is therefore in favour of an accelerated reduction in size after 2018. At the same time, the incoming President must have the freedom to streamline the Commission and cluster together portfolios from the autumn of 2014 onwards. In addition, the European Parliament should be given a stronger role in the European Semester. Its exchange of ideas with both the Commission and the European Council during the Spring Summit should be of a less discretionary nature and must go beyond simply assessing the procedural aspects of the European Semester. This means that the European Parliament should also be able to voice an opinion on matters of substance, such as the priorities for growth and employment and that the Commission should be obliged to explain itself if it deviates from the line taken by the European Parliament.
Some regard referendums as the ultimate bridge between government and voter. However, the AIV disagrees, as referendums do not provide a structural solution to the Union’s democratic deficit and should not be used indiscriminately. In the opinion of the AIV, their advantages are outweighed by their disadvantages. For example, a referendum leaves no scope for a nuanced opinion on the form and content of a proposed decision or for the assessment of possible alternatives. The AIV also takes the view that in a representative democracy citizens can cast their vote in periodic general elections according to the importance they attach to the positions taken by political parties on EU issues. It is the responsibility of politicians to clearly state these positions in election campaigns and give them the weight they deserve. The AIV would also point to the potential contribution which the instrument of constitutional review can make to the development of European political awareness and citizenship. In some other member states such as Germany, Ireland and the Czech Republic, the existence of constitutional courts enables citizens to make known their opinion on the course of European integration and to have its constitutionality assessed by an independent institution not motivated by political interests and differences. This could provide major impetus for the public debate on Europe. It would be worthwhile looking into the advantages and disadvantages of this instrument as well.
Although there is little political identification by citizens with Europe and there is as yet no European public space, the AIV notes with approval that the Commission consults at length with civil society organisations and other interested parties at the start of a legislative procedure. The first steps have also been taken to introduce the European Citizens’ Initiative, which will enable members of the public to bring subjects to the attention of the Commission and get them on the European agenda.
Balance between effectiveness and control
Clearly, the requirements of democratic legitimacy and political control may clash with those of administrative effectiveness. Too much emphasis on control may jeopardise the EU’s capacity for decisive action. It is hard to generalise about how this trade-off should be achieved in practice, and the balance will differ from one policy area to another, depending on its specific characteristics and, above all, the urgency of action required. However, the AIV believes that calls for greater effectiveness should never go so far that powers are exercised unsupervised. This would only serve to strengthen the harmful impression given to the public that European integration is an unchecked and unstoppable process. Procedural rules may assist in striking a good balance, but it is equally important for the bodies concerned (implementing institutions and parliaments) to perform their role correctly. The guiding principle should be self-limitation. The balance between executive action and parliamentary control should be largely determined by the situation. In cases where the legislative process can progress as normal, with no time constraints, there is in principle sufficient scope for effective parliamentary involvement at national level too. By contrast, where there is a crisis situation that requires rapid action on the part of European authorities, parliaments must accept that executive bodies are given sufficient discretionary powers and that scrutiny can take place only after the fact, through a system of ex-post accountability. However, reference should be made here to the importance of proper and timely anticipation of the spillover effects of major steps in the integration process, unlike what happened in the past in the context of the EMU. Such consequences or effects should be recognised and taken into account at the earliest possible stage in the political and social debate, at both European and national level. If, in either a European or a national context, there is interest in drawing up rules of conduct governing the limits of national parliamentary control (e.g. rejection of a right of national parliaments to veto ordinary legislation), it would be worthwhile differentiating between the various situations in which decisions have to be taken.
The AIV welcomes the active role played by the Dutch parliament and some other national parliaments within the EU. The parliament should consolidate and expand the expertise it is now accumulating. At the same time, the AIV warns against improper use of the yellow and orange card procedure for the principal purpose of obstruction, since the Union’s capacity to act should be strengthened rather than weakened.
Community and intergovernmental method
Under the provisions of the European treaties, different policy areas require a different approach and method of governance. For example, the Community method prevails in the broad field of the internal market whereas both the Community method and the open method of coordination (OPC) apply in the social field. The intergovernmental method applies in fiscal matters and the Community method in various other areas such as the environment. The intergovernmental method is dominant in the field of economic governance, partly because the member states quite often choose to regulate matters that fall outside the scope of the treaties by means of international agreements. Accordingly, the choice of which method is applicable in specific cases tends to be a political one, made for the most part on the basis of the desired degree of political control over the exercise of European powers. From a national perspective the most important question is which of these methods of governance is most conducive to the State’s capacity for action. Although the intergovernmental method may seem attractive at first sight, owing to the (formal) right of veto which each member state has over decision-making and the fact that the European Commission and the European Parliament are involved only to a limited extent, if at all, its exercise may be problematic in practice. In the current political and economic climate, with Germany being so dominant, there may be insufficient counterweight, certainly from the small member states. Although the AIV appreciates that the intergovernmental basis of economic governance can facilitate swift action in times of crisis, it recommends that a Community method be adopted for the subsequent treaty changes. This safeguards democratic legitimacy, ensures the full involvement of the European Parliament and avoids the need for national parliaments to make ad hoc arrangements through the national system.
Clearly, the limits of the Community method lie where the member states wish to keep their national prerogatives, especially in financial matters. This plays a major role, above all, in the debate on the EU as a transfer union and on debt mutualisation. It is only to be expected that the countries that provide financial support, such as Germany, Finland and, not least, the Netherlands, will continue to oppose a system of majority decision-making in which they could be forced against their wishes and interests to cooperate in the transfer of substantial sums to ailing member states.
On the other hand, the intergovernmental method loses its legitimacy if the larger member states confront the smaller member states with faits accomplis in the form of ‘pre-fab’ solutions, reducing their right of veto to little more than a paper tiger in the face of European power politics. The AIV is not in favour of hybrid forms of the intergovernmental and Community methods since they would detract from the desired clarity of the decision-making procedures, making it harder for national parliaments to get a grip on the process. Moreover, such a move would create an uncertain situation of doubtful legal tenability. Nonetheless, the AIV recognises that such forms may sometimes have to be accepted as second-best solutions that are the inevitable outcome of the differing interests and views of the member states.
Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
P.O. Box 20061
2500 EB The Hague
Date 13 December 2013
Re Request for advice on the joint exercise of competences and democratic legitimacy in the EU
Dear Mr Korthals Altes,
The government observed in the State of the European Union 2013 that the financial and economic crisis had strengthened the links between national and EU tiers of government. In this new dynamic, measures are being taken in areas where the legal orders of the two tiers intersect, especially regarding political and administrative decision-making on budgetary and economic policies in the euro area (eurozone governance).
National governments’ capacity to act, particularly in the field of economic and financial affairs, is increasingly being restricted by countries’ growing interdependence and the operation of international markets, to say nothing of ongoing EU integration. The member states in the eurozone have therefore agreed to coordinate their economic and budgetary policies in order to restore their capacity to act in this field.
The European debate often counterpoints EU and national governance. It is uncertain whether such a polarisation really exists since ‘Europe’ has become an integral part of national governance. In this context, the word ‘sovereignty’ often implies that a member state can act autonomously in an environment of transnational power and influence provided the ‘alien’ power, Europe, is kept at as great a distance as possible. Too often, this picture is a caricature of reality.
When a volcano erupts, a foreign sex offender is arrested in Amsterdam, E. coli breaks out, horse meat is sold as beef or banks collapse, the call for a decisive EU is heard from all sides. An EU response is required to crises and challenges that transcend the strict national level, but at the same time people feel alienated from the EU. This tension cannot be sustained indefinitely: without popular support the EU cannot act effectively, and an effective EU is a prerequisite for popular support.
In the interests of both the Netherlands and the EU as a whole, the government will remain critical and constructive in its efforts to help devise and build an effective EU and repair the imperfections in the Economic and Monetary Union (EMU). Where powers are exercised jointly, however, the government thinks it is vital to safeguard the democratic legitimacy of EU decision-making at both national and EU level.
Within the EU, the government has attempted, for example, to initiate a review of subsidiarity under the guiding principle of ‘European where necessary, national where possible’. Major crossborder challenges and problems (such as the completion of the single market, the prevention and resolution of financial crises, pandemics, etc.) are best tackled jointly. In other, less important areas the EU should show restraint, so as to avoid unnecessary regulatory pressure. The government believes a stronger focus on subsidiarity would be achieved not so much by a treaty amendment but by a change of behaviour among the EU institutions, especially the European Commission.
A fundamental debate on EU cooperation in the national political arenas (in the Netherlands the two Houses of the States General) would prompt discussion in the media, at schools and in society at large and thus help politicise the EU debate and increase understanding of EU cooperation. The national parliaments of several member states, including that of the Netherlands, are becoming more closely involved in EU decision-making. At EU level, the parliamentary elections in 2014 and the subsequent formation of a new Commission are opportunities to deepen the debate on how EU accountability structures can be strengthened. Against this background, the Advisory Committee on International Affairs (AIV) is asked to clarify:
- How the role of national parliaments and/or other national institutions can be strengthened with a view to creating public support for EU decisions. More broadly, where, according to the AIV, does the key to strengthening democratic legitimacy lie (national parliament, European Parliament, a combination of the two or elsewhere)? To answer this question, the AIV can draw on the House of Representatives’ first common position paper on democratic legitimacy in the EU (17 October 2013), the advisory report of the Council of State,1 which specifically refers to ‘democratic alienation’, and the AIV’s own advisory report on the European Parliament (no. 81, November 2012); and
- The interplay between EU governance and national governance and the pros and cons of pooling and sharing sovereignty. This question concerns not only stricter controls and countervailing power for the sake of legitimacy but also how the legitimacy of effective governance can be interpreted. In other words, what would be a good balance between ‘legitimacy of effectiveness’ and ‘legitimacy of control’ of EU governance at the various levels? Further to the Council of State’s advisory report1, the AIV could draw on the debate on the intergovernmental and Community methods (and hybrid forms). It would be interesting to consider the limits of the two methods.
I look forward to your advisory report with interest,
Minister of Foreign Affairs
1 Council of State, Advisory report (Voorlichting) on embedding democratic control in the reform of EU economic governance, 18 January 2013.
Government response to AIV advisory report no. 88: ‘Public Support for the European Union: Building Trust’
The government wants the EU to be as efficient and effective as possible, as well as more focused, balanced and legitimate. An effective Union requires firm public support. Given that this support is currently under pressure, the government’s main goal is to strengthen the EU’s democratic legitimacy through improved control and increased effectiveness. In its 2013 and 2014 State of the European Union reports, the government presented several ideas in this connection.1 It also requested the AIV to publish an advisory report on strengthening democratic legitimacy, the balance between effectiveness and legitimacy and the balance between the intergovernmental and Community methods.
On 24 April, the AIV published an advisory report entitled ‘Public Support for the European Union: Building Trust’. The present letter contains the government’s response to the conclusions and recommendations of this report, as well as a further response to questions from the Permanent Parliamentary Committee on Foreign Affairs concerning the role of national parliaments in the decision-making process and an overview of the competing forces in the field of democratic legitimacy and institutional reform that appeared in the letter of 9 October 2013.2 In addition, it includes the government’s response to the motion tabled by Alexander Pechtold (MP) on the revision of the EU Public Access Regulation,3 the motion tabled by Alexander Pechtold (MP) on institutional reforms under the treaties,4 the motion tabled by Pieter Omtzigt (MP) on the red card procedure5 and the motion tabled by Carola Schouten and Elbert Dijkgraaf (MPs) on the seat of the European Parliament.6 In accordance with a commitment given during the debate on the State of the European Union in the House of Representatives, this response also examines the balance between intergovernmental and Community arrangements in the field of economic policy.7 Finally, it addresses the recent report by the House of Representatives’ rapporteur on democratic legitimacy on the role of the House of Representatives and other national parliaments in the European Union (‘the Leegte report’).8
2. AIV recommendations
2.1 General remarks
In its report, the AIV paints a familiar picture of diminishing trust in and support for the EU, examines the possible causes of these trends and presents recommendations aimed at strengthening the EU’s democratic legitimacy. In doing so, it emphasises that institutional measures alone are not sufficient to solve these problems. The AIV favours a multitrack approach – at both national and EU level – that ranges from optimising existing instruments and proposing new instruments to politicising and boosting citizen participation. Its recommendations focus, in particular, on economic and monetary policy, since the AIV has identified several specific problems in this area.
The AIV’s findings provide an interesting contribution to the government’s thinking on how to bring the Union closer to its citizens and boost public support for the EU. The government agrees with the AIV that there is no simple remedy for the problems that have been identified and that a wide range of measures are required to turn the EU into a tier of government that enjoys broad democratic support. The low turnout at the recent European Parliament elections only highlights the importance of this. The government looks forward to continuing its exchange of views on these issues with the House of Representatives, the member states and other interested parties and welcomes the House of Representatives’ proactive stance in this area, as reflected in the Leegte report.
In the following sections, the government responds to those recommendations that focus on the government and were not already addressed in the 2013 and 2014 State of the European Union reports or the government’s response to the AIV’s advisory report on the Netherlands’ relationship with the European Parliament.9
2.2 Democratic legitimacy
A. Strengthening existing instruments
i. Strengthening the role of national parliaments
The AIV believes that the scrutinising role of national parliaments should be strengthened, for example by upgrading the yellow and orange card procedure. At the same time, it notes that parliaments should work together to make effective use of existing instruments, in particular the possibilities offered by COSAC and the ‘article 13 conferences’ provided for under the Treaty on Stability, Coordination and Governance (TSCG),10 before new instruments are created. The AIV’s ideas, for example concerning the need to strengthen proportionality assessments, are consistent with the government’s policies in this area, as set out in the 2013 and 2014 State of the European Union reports. In this context, the government wishes to note that, although it has issued a yellow card on two occasions, it has yet to make use of the orange card. This card enables member states to block a legislative proposal on the grounds of subsidiarity if a majority of parliaments are opposed to it and 55% of the members of the Council or a majority of the members of the European Parliament are also opposed (in the event that the Commission does not retract the proposal). In such cases, the views of national parliaments are expected to have a strong influence on the governments concerned. Indeed, if a majority of parliaments decide that a proposal is in breach of the principle of subsidiarity, the orange card constitutes a very powerful instrument.11
The government agrees with the AIV that the national parliament serves as a bridge between the public and the European Parliament and that its role in this regard could be amplified. It also notes that the House of Representatives has already developed some interesting ideas in this area, as set out in the recent Leegte report. The government expects that closer cooperation between national parliaments will encourage the emergence of an additional dynamic in the field of European cooperation. In this context, it is worth noting the European Parliament’s resolution of 16 April 2014 in response to the Casini report, which proposes, among other things, that national parliaments and the European Parliament should draw up an agreement that could serve as a basis for effective cooperation within the meaning of article 9 of Protocol No. 1 to the Treaty on European Union.
In addition to what has already been stated in the 2013 and 2014 State of the European Union reports about the role of national parliaments and the effectiveness and/or expansion of the existing range of instruments, in particular with regard to strengthening the yellow and orange card procedures, and partly in response to the questions on democratic legitimacy posed by the House of Representatives in a letter from the Committee on European Affairs of 9 October 2013, the government would like to make a number of observations. In its view, national parliaments can play a useful role in all stages of the policy cycle. During the consultation stage, they can send input to the Commission. During the negotiation stage, they can influence matters directly through subsidiarity and proportionality assessments and indirectly via the government or through their contacts with the European Parliament. During the implementation stage, they play a role in transposing EU legislation into national legislation. During the evaluation stage, finally, they can contribute to evaluations. The government believes that it is up to the House of Representatives to define how it uses the instruments laid down in the treaties. Moreover, in the light of its access to the government’s extranet site and the supplementary agreements recently concluded during the meeting between the government and parliament on the flow of information, the government believes that the House of Representatives has the necessary information at its disposal to perform these tasks. Furthermore, the AIV’s advisory report and the Leegte report contain more detailed proposals regarding the internal procedures of the House of Representatives, which should obviously be evaluated by the House itself.
In response to the Schouten-Dijkgraaf motion, which calls for limiting the meeting place of the European Parliament to a single location, the government points out that, in accordance with standing policy, it already advocates this position where useful and appropriate. However, such a change would require a treaty amendment, which in turn requires the consent of all 28 member states. As long as there is no agreement on this issue, a reduction in the number of meeting places is not feasible.
ii. Strengthening national institutions
In addition to strengthening the role of national parliaments, the AIV advocates strengthening member states and national institutions in general with a view to restoring public confidence in the EU. According to the AIV, effective European government is dependent on strong national institutions, especially in the area of economic and financial governance (see below). It therefore believes in increasing the expertise and independence of public bodies and the practicability and effectiveness of their decisions.
The government agrees with the AIV’s analysis. Preserving and reinforcing the expertise and independence of national institutions are essential for effective governance within the EU, which is based on mutual confidence in the functioning of each member state’s administrative machinery. It is not enough to strengthen governance, institutions and oversight at European level. Every member state must increase and consolidate the independence and quality of its national systems, authorities and institutions (both in the field of economic governance and beyond) as part of a pan-European network of rules, legislation and independent supervision, as has already been achieved in the field of competition law, for example.
iii. Increasing transparency
The government agrees with the AIV that greater openness could help boost public trust in the EU institutions. Together with like-minded member states, it therefore remains committed to finding ways to increase the transparency of European decision-making procedures, as noted in the State of the European Union report. As soon as the opportunity presents itself – after the new European Parliament and the new Commission have taken up their duties – the government will renew its efforts to adapt the EU Public Access Regulation12 to the Treaty of Lisbon,13 so that both legislative bodies can swiftly come to an agreement on this issue. In addition, the government is pushing for an increase in the active transparency of the EU institutions, for example by improving access to and the findability of documents on EU websites, such as road maps, impact assessments, consultations and evaluations, including in the field of secondary legislation (implementing acts and delegated acts). Where possible, moreover, it will continue to draw attention to the classification of Council documents. Finally, in the framework of the Open Government Partnership (OGP), the government is examining whether this international movement can boost efforts to promote transparency within the EU, and if so how.
iv. European legislation in the field of administrative law
On the subject of good European governance, the AIV is in favour of developing a proposal for a European ‘General Administrative Law Act’, as called for in a resolution adopted by the European Parliament. Should the European Commission present such a proposal, the government will examine it on its merits, including whether a legislative act is the most appropriate instrument for consolidating new and existing rules of administrative law concerning the actions of the EU institutions.
B. New instruments
v. Constitutional review
The AIV believes that it would be worthwhile to examine whether constitutional review, which is customary in various other member states, would be useful and desirable in the Netherlands. The Dutch Constitution provides that the constitutionality of official acts may only be reviewed by legislator.
The issue of constitutional review has been debated several times over the past decade in the context of a bill to amend the Constitution sponsored by Liesbeth van Tongeren (MP) (Green Party) – and originally introduced by Femke Halsema (MP) – which is currently in its second reading. If adopted, this bill will pave the way for the judicial review of acts for compatibility with a small number of constitutional provisions. This would constitute a limited implementation of the AIV’s recommendation. Should the bill move forward, the government will adopt a position on the desirability of introducing constitutional review and weigh up the advantages and disadvantages.
vi. Streamlining the Commission
Like the AIV, the government is in favour of reducing the size of the Commission as soon as possible in order to increase its efficiency and effectiveness, as noted in the State of the European Union. Internal reforms are required to ensure that the European Commission is as efficient, effective and focused as possible. At this time, however, there is no support for a reduction in the size of the Commission, as smaller member states are concerned about being marginalised or unrepresented. On 22 May 2013, in accordance with its Conclusions of December 2008, the European Council officially confirmed that from 1 November 2014 onwards the Commission will include one national from each member state. However, it also agreed to reconsider this decision either well before the appointment of a Commission following the accession of the 30th member state or prior to the appointment of the next Commission in 2019. A decision to reduce the size of the Commission therefore does not require a treaty amendment (see also section 3.2.i).
In the meantime, the government believes that the Commission could begin to reorganise by clustering portfolios in order to improve its effectiveness and focus. Each resulting cluster could be headed by a Vice-President, who would be responsible for plotting the cluster’s strategic direction, supervising its legislative initiatives and forwarding them to the College of Commissioners, and monitoring horizontal coordination and coherence between the clusters. In such a setup, the principles of collegiality and equality need to be protected in order to prevent the emergence of a two-tier Commission. All Commissioners must have an equal vote, and a rotating system of Vice-Presidents could be introduced. Incidentally, the government would note that the Commission bears sole responsibility for its own internal organisation, which it can modify by amending its rules of procedure (see section 3.2.i).
vii. Strengthening impact assessments
The AIV recommends that the EU continue to develop its impact assessment (IA) policy, in particular by formulating a coordinated, interinstitutional approach to IAs and carrying them out at Council level on Council amendments to legislative proposals. The Netherlands and other like-minded member states already actively promote the more effective use of better and more transparent IAs to improve their ability to evaluate legislative decisions. Last year, the Council adopted several agreements in this area, which have already given rise to a number of pilot projects examining the European Commission’s IAs. The results of these projects are expected in the near future. In addition, the Commission intends to review the guidelines for setting up IAs this year and will launch a public consultation process for this purpose.
The government will push for the inclusion of the following elements in IAs: compliance costs, the effects of the measures in question on the competitiveness of and employment in the EU, the administrative and financial consequences of legislation at national, regional and local level and compliance with the EU Charter of Fundamental Rights. If the 2003 Interinstitutional Agreement on Better Law-making is amended, as favoured by the Netherlands, the government will also press for strengthening IAs. At the same time, it will draw attention to the way in which the European Parliament and the Council use IAs in their legislative procedures.
C. Economic governance
On the subject of economic governance, the AIV makes several valuable recommendations that are largely consistent with measures already adopted at EU level. The government believes that in order to ensure the long-term viability of the euro area, the necessary policy measures must have democratic legitimacy – both at the time of their adoption and during their implementation – and contain adequate ‘checks and balances’ to guarantee sufficient accountability.14 To this end, the government aims to take maximum advantage of the options available under the current treaties. Several initiatives on this front have already been described in detail in the 2013 and 2014 State of the European Union reports.
In response to the AIV’s observations on strengthening the democratic and parliamentary dimension of economic governance, especially with regard to the possibility of establishing a separate parliament for the euro area, the government refers to the 2013 and 2014 State of the European Union reports. It is clear that further deepening of cooperation in the euro area raises questions about the relationship between the EU-28 and EA-18 as well as about the EU’s internal coherence.
viii. Involvement of the national parliament and the European Parliament in the European Semester
The AIV is in favour of closer involvement of the national parliament and the European Parliament in the European Semester. The government believes that important steps have already been taken in the framework of the European Semester, which brings together the member states’ agreements on budgetary and economic policy and provides insight into progress on EU-wide policy goals. This process plays a key role in ensuring responsible economic and financial policy on the part of member states, promoting structural reform and boosting competitiveness.
The Dutch parliament is already closely involved in the European Semester and even plays a pioneering role in this regard within the EU, as previously noted by the government.15 It has appointed a rapporteur for the European Semester, and in the past year various members of parliament participated in the interparliamentary week organised in the framework of the European Semester and the ‘article 13 conference’ provided for under the TSCG, which also included the budget committees of the national parliaments and the European Parliament. The government hopes that this interparliamentary cooperation will contribute to the development of a strong interparliamentary forum that is able to provide suitable responses to European developments.16
In the government’s opinion, the European Parliament’s supervisory role has also improved recently. At any time during the European Semester, the European Parliament can summon the European Commission, the President of the European Council and the President of the Eurogroup to answer questions about proposals and decisions in the framework of an ‘economic dialogue’. In 2014, several economic dialogues were held on such issues as annual growth priorities, the implementation of recommendations and the European Semester cycle. Twice a year, moreover, the European Parliament adopts an opinion on the functioning of the European Semester.
ix. Strengthening administrative legitimacy
The government agrees with the AIV that the European Semester should be supported by independent national institutes for statistical information, economic forecasting and policy evaluation such as Statistics Netherlands (CBS), the Netherlands Bureau for Economic Policy Analysis (CPB) and the Netherlands Court of Audit. Since the outbreak of the economic and financial crisis, the EU has taken various steps in this area, such as the introduction of minimum standards for statistical independence17 and national budgetary frameworks,18 for example with regard to prudent forecasting and the more frequent submission of budgetary data to EUROSTAT. In addition, in 2012, the Commission proposed a regulation aimed at strengthening the governance of the European Statistical System (ESS).19 The government supports the idea of a more independent European statistical service and is accordingly in favour of strengthening EUROSTAT’s independence. In the government’s view, EUROSTAT should be subject to the same requirements as national statistical institutes.
x. Position of the Commissioner for Economic and Monetary Affairs
The government endorses the AIV’s recommendation to make a clearer distinction within the European Commission between economic analysis and the enforcement of agreements. Such a measure would further strengthen the supervisory role of the Commissioner for Economic and Monetary Affairs, as advocated by the government in its position paper on the future of the EMU.20
For some time now, the Netherlands has advocated strengthening the Commissioner’s role and increasing his independence by granting him overriding authority. The EU has taken several steps in this direction. For example, the current Commissioner is also a Vice-President of the Commission. The Netherlands endorses the AIV’s call to further strengthen this position.
Having said that, the government disagrees with AIV’s observation that the national budgetary procedure has been brought forward de facto by the European budgetary process and that the political decision-making procedure for the draft budget has been brought forward to the spring. In the spring, the government presents an annual stability programme to the Commission in which it reports on budgetary policy and macroeconomic forecasts. However, this programme does not contain any new policies. At this time, at the suggestion of the Commission, the Council can draft recommendations, for example concerning additional spending cuts. The government takes these recommendations into consideration during the preparation of the budget and includes them in the Budget Memorandum that is submitted to the House of Representatives for approval in September. The government defends its decisions during the parliamentary debate on the Speech from the Throne and the parliamentary debate on the budget.
xi. Role of the Council of State and the CPB
The AIV believes that, due to European budgetary rules, the Council of State’s advisory role regarding the national budget places excessive demands on its expertise. The Sustainable Public Finances Act calls on the Advisory Division of the Council of State to issue an opinion on the Budget Memorandum. This is consistent with existing practice, as the Council publishes an advisory opinion on the Budget Memorandum every year. What is different is that this opinion now also has to determine whether the government’s budgetary policies comply with relevant European budgetary agreements. In this context, the Netherlands Bureau for Economic Policy Analysis (CPB) serves as an independent forecasting agency. On the basis of its forecasts, the Council of State can verify whether the government’s actual and/or planned budgetary policies are in line with the European budgetary agreements. By separating the role of the independent forecasting agency (CPB) from the role of the independent advisory body that evaluates the government’s budgetary policies (Council of State), the Netherlands safeguards the CPB’s status as an independent forecasting agency and ensures that its activities do not stray into the substantive evaluation of government policy or the issuance of recommendations in this regard. Moreover, with regard to the independence of the CPB’s opinions, the government refers to the Prime Minister’s instructions of 21 February 2012 regarding the planning bureaus (in particular instructions 4 and 5).21
xii. Democratic accountability of the Troika
The government does not agree with the AIV’s observation that the democratic accountability of the Troika (European Commission, ECB and IMF) vis-à-vis the programme countries has serious shortcomings. In this case, democratic legitimacy is guaranteed by national parliaments and the fact that democratically elected governments freely agreed to a package of policy measures in exchange for financial assistance. The conditionality attaching to the support programmes is a product of the negotiations and the agreement of all parties concerned. The policy measures to which the programme countries commit themselves are scrutinised and approved by the national parliaments of all member states. The government notes that exchanges regularly take place between the European Commission and the European Parliament and between the ECB and the European Parliament. The Minister of Finance keeps the Dutch parliament informed about the support programmes, especially regarding Troika progress reports and the government’s position on the payment of loans.
D. Politicisation and citizen participation
xiii. ‘Ownership’ by national politicians
As in its earlier advisory report on relations between the European Parliament and the Council of State, the AIV once again recommends that those in authority at national level take greater responsibility for their actions within the EU. The AIV notes that at present ministers often criticise the European institutions, while they should be making it clear that they themselves are participants in European decision-making procedures and thus share responsibility for the decisions that are taken. The government does not recognise this picture. On the contrary, we see it as our mission to include the public in the European decision-making process as much as possible and to demonstrate that proposed measures have clear added value for the Netherlands. The government acknowledges that contradictory messages at national and European level can undermine democratic legitimacy and therefore devotes a lot of attention to setting the right tone regarding the EU. In this context, it attaches great importance to the frequent debates on European cooperation in the House of Representatives and the Senate, the media and society at large. It also notes that the tone of the debate on the EU is determined by all the actors in this process.
The government shares the AIV’s view that there should also be discussion of the development and spillover effects of decisions with the national parliament. In this context, it notes that it does not wish to get bogged down in abstract debates on the final political shape of European cooperation. Instead, it wants to focus on the medium term and what exactly needs to be done over the next few years. The annual debate on the State of the European Union, the debate on the Commission’s work programme and the Commission’s forthcoming multiannual work programme all provide excellent starting points for such a discussion.
The AIV is not in favour of referendums. In this context, the government notes that the Senate recently passed a bill on advisory referendums (non-binding corrective advisory referendums held at the request of a predetermined number of citizens), while also adopting – at first reading – a constitutional amendment introducing a binding corrective advisory referendum. In the process, it also considered the arguments put forward by the AIV.
Once it becomes law, the bill on advisory referendums will enable the Netherlands to hold non-binding referendums on acts that have been ratified but have not yet entered into force. This is also possible for (explicitly or tacitly) approved treaties and treaty amendments that apply only to the Netherlands and not to the rest of the Kingdom. In practice, a group of citizens will thus also be able to initiate a non-binding advisory referendum on European treaties. The AIV’s observations on the careful phrasing of questions and the provision of adequate information are obviously relevant in this regard. Incidentally, consultative referendums, such as the referendum on the European Constitution in 2005, which are initiated by the legislature, do not fall under the above-mentioned bills.
xv. European Citizens’ Initiative
The European Citizens’ Initiative (ECI) marks the first time that a form of direct (i.e. participatory) democracy has been introduced at EU level.
The EU already has some initial experience with the ECI. Over 20 initiatives have started collecting statements of support from citizens in various member states. To date, three initiatives have amassed the required number of statements (1 million). The European Commission is preparing a wide-ranging evaluation to map the lessons learned so far, both for those behind the initiatives and for the member states that have to verify and certify the signatures. This satisfies the need, identified by the AIV, for an assessment of the ECI’s merits and the conditions of its applicability.
The AIV is disappointed with the Commission’s response to the Right2Water initiative in terms of the length of the ECI procedure and the costs incurred in verifying all signatures in 25 member states. The government understands the AIV’s position and expects that citizens will only use the ECI, which requires a significant amount of effort from member states as well as citizens, if they feel that their efforts produce satisfactory results. In addition, they are entitled to expect that their initiative will be met with a serious and substantive response from the European institutions. Finally, it goes without saying that all ECIs will be evaluated in accordance with existing principles, for example in the area of subsidiarity.
2.3 Effectiveness and control
The AIV acknowledges that there is tension between the call for greater effectiveness and the need for political control within the EU, as noted in the government’s request for advice. In line with the government’s position in the State of the European Union, it points to the importance of achieving a good balance between the two.
First and foremost, the government underlines the vital importance of the national parliaments’ scrutinising role and therefore encourages them to make full use of the powers granted to them under national constitutional law and the possibilities afforded by the treaties in order to strengthen this role and, by extension, support for the EU. The government agrees with the AIV that the balance between effectiveness and control is highly dependent on the situation and the policy area concerned. In crisis situations, control will sometimes have to take place after the event, whereas normally, all the relevant procedures will obviously have to be followed first. The government’s guiding principle is that the results of the European decision-making process must be able to count on sufficient long-term support. It shares the AIV’s view that the improper use of the yellow and orange card procedure for the principal purpose of obstruction represents the limit of the legitimacy of control, since this could block the EU’s capacity to govern (‘throwing a spanner in the works’). In the government’s opinion, this would be the case if the procedure were used for any reason other than the one for which it was created. Incidentally, the government has no evidence that this is about to happen, as national parliaments have thus far only made sparing use of the procedure.
The government continues to search for further ideas on the balance between effectiveness and control and the legitimacy of effective governance. One aspect of this is the legitimacy of the Commission, the more so now that its powers and tasks have been expanded as a result of the crisis. The government wishes to highlight the importance of this issue, witness also the AIV’s thoughts regarding the direct election of the Commission President, and regards it as an important topic of discussion within the wider debate on strengthening democratic legitimacy. At the same time, however, the issue is complicated by the fact that the Commission performs so many different roles.
2.4 Intergovernmental and Community methods
The AIV believes that the foundations of EMU should be strengthened within the EU’s institutional framework and recommends adopting the Community method in a future treaty amendment, noting that this will safeguard democratic legitimacy. The advisory report also maintains that the limits of the Community method lie where member states wish to keep their national prerogatives, especially in financial matters.
Partly in response to a commitment given during the debate on the State of the European Union regarding the balance between intergovernmental and Community arrangements in the field of economic governance (cf. the withdrawn motion tabled by Alexander Pechtold (MP)), the government notes that it adheres to the principle that European policy should be regulated within the framework of the treaties. During the past few years, however, it became apparent that this principle was not always compatible with an effective response to the euro crisis. The Treaty on Stability, Coordination and Governance (TSCG) provides for its own eventual integration into the regular EU framework. This will require a treaty amendment, which is currently not on the cards. Should the EU nevertheless decide that the time is ripe for a treaty amendment, the government’s efforts will focus, among other measures, on bringing the TSCG into the framework of the European treaties. The government shares the AIV’s opinion that there may be limits to the Community method where national competences in financial matters are concerned. As regards democratic control, the House of Representatives plays a vital scrutinising role in these areas. This applies in particular to the European Stability Mechanism, which performs a very specific task that should not by definition be carried out at Community level. On the basis of experiences with the ESM, however, it is conceivable that the desirability of integrating the Mechanism into the EU’s legal framework could be examined in the long term.
The AIV believes that intergovernmental solutions do not provide sufficient guarantees for parliamentary influence and accountability, which are the key aspects of democratic legitimacy. The government endorses the importance that the AIV attaches to parliamentary influence and accountability in respect of economic governance and has therefore made an effort to ensure that the House of Representatives is closely involved in the conclusion of intergovernmental and Community agreements in support of economic governance. This applies to the adoption of negotiating mandates as well as to accountability for the outcome of negotiations. In this spirit, the government submits agreements in this area, such as the ESM Treaty and the intergovernmental agreement on the Single Resolution Fund (SRF), to the Council of State and the States General for advice and approval, in accordance with standard procedure. As far as the government is concerned, choosing the intergovernmental method therefore does not imply that there are insufficient guarantees for parliamentary influence and accountability.
In its report, the AIV also notes that it is not in favour hybrid forms of intergovernmental and Community methods, as decision-making procedures would then be less clear. As far as the Netherlands is concerned, the Community method remains the best way of protecting the interests of small and medium-sized member states and preventing the dominance of large member states. The government recognises that differentiation within the EU is and will remain necessary in order to reflect the Union’s diversity. At the same time, however, it wishes to ensure that such differentiation, especially when linked to calls for opt-outs, does not lead to fragmentation. In this context, the government considers it important that the intergovernmental agreement on the SRF provide that the substance of the agreement be incorporated into the Community framework within 10 years. This will require a treaty amendment, which is currently not on the table.
3. Institutional reform under the treaties
In a motion tabled by Alexander Pechtold (MP) on 31 March 2014,22 the government was asked to identify those EU reforms that can be realised without the need for treaty amendments. The following sections describe the various methods that can be used to achieve such reforms. After that, the government will outline several institutional reforms that it has in mind.
3.1 Options for reform under the current treaties
Article 48 of the Treaty on European Union (TEU) provides that the treaties may be amended in accordance with the ordinary revision procedure for the purpose of increasing or reducing the competences conferred on the Union. In addition, however, the treaties offer various reform options that do not require an ordinary treaty amendment. These options are discussed below.
i. Simplified revision procedure for internal policy
Article 48 (6) TEU provides that the internal policies and action of the Union, as regulated in Part Three of the Treaty on the Functioning of the European Union (TFEU), may be revised without resorting to the ordinary treaty amendment procedure. This only applies to limited treaty amendments that do not increase the competences of the Union, such as amendments relating to single market policy, economic and financial policy or the area of freedom, security and justice. Under the simplified revision procedure, in contrast to the ordinary revision procedure, it is not necessary to convene an intergovernmental conference (IGC). Instead, a member state government, the European Parliament or the Commission can simply submit a proposed amendment to the European Council, which decides by unanimity after consulting the European Parliament and the Commission (and the European Central Bank in the case of institutional changes on monetary matters). This decision only enters into force after it has been approved by the member states in accordance with their respective constitutional requirements.
ii. Simplified revision procedure for decision-making: general and specific passerelle clauses
The treaties also contain a number of simplified revision procedures for the purpose of simplifying decision-making in certain areas. Article 48 (7) TEU contains two general passerelle clauses. The first concerns the transition from decision-making by unanimity (in the Council) to decision-making by qualified majority and is limited to the TFEU and Title V of the TEU. The second concerns the transition from a special legislative procedure to an ordinary legislative procedure (i.e. the codecision procedure).
National parliaments are notified by the European Council if it intends to invoke these passerelle clauses. If a national parliament registers its opposition within six months of the date of notification, the decision in question is not adopted. Incidentally, it is worth noting that article 353 TFEU lists several specific areas where these general passerelle clauses may not be used.23
The treaties also contain several specific passerelle clauses enabling the transition from decision-making by unanimity to decision-making by qualified majority.24
iii. Interinstitutional agreements, political agreements and rules of procedure
Under article 295 TFEU, the European Parliament, the Council and the Commission may conclude interinstitutional agreements (IIAs) on the nature of their cooperation. For example, IIAs may include provisions on priorities, basic legislative principles such as subsidiarity and proportionality, transparency and information-sharing between institutions. IIAs may be of a legally binding nature. The fact that the TFEU provides for the possibility of their conclusion between the three institutions (i.e. the European Parliament, the Council and the Commission) does not imply that it prohibits the conclusion of such an agreement between two of them.
In addition to the above-mentioned options, the institutions are obviously also entitled to conclude political agreements. However, it should be noted that such agreements are not legally binding.
Various institutional reforms can also be achieved by amending the institutions’ rules of procedure, which are adopted in accordance with the treaties. It goes without saying that the individual competences of each institution must be taken into account in such cases.
3.2 Proposals for a more efficient EU
The government wants the EU to be as efficient and effective as possible, as well as more focused, balanced and legitimate. This section provides an overview of the institutional reforms that the government has in mind. In most cases, more than one of the above-mentioned options can be used to achieve a specific reform. In cases where only one option is available or practicable, that option will be identified.
i. Reforms within the European Commission and the Council
Internal reorganisation of the Commission
The government is in favour of reducing the size of the Commission in order to increase its efficiency and effectiveness. This can be achieved without amending the current treaties. Under article 17 (5) TEU, the European Council can change the number of Commissioners by means of a unanimous decision.
Since there is still insufficient support for such a reduction, the Commission could reorganise itself on the basis of a smaller number of key tasks. The resulting portfolio clusters could each be headed by a Vice-President. All this can be achieved by amending the Commission’s rules of procedure.
In addition, the Commission could introduce a functional separation between its legislative tasks and its executive and supervisory tasks, which might raise the profile of its role in monitoring and overseeing the implementation of existing agreements. This too can be achieved by amending the Commission’s rules of procedure. For example, the Commission previously introduced additional guarantees for the current Commissioner for Economic and Monetary Affairs in this manner.
The principles of subsidiarity and proportionality could be embedded more deeply in the Commission’s DNA. As provided in article 17 (6) (a) TEU, the President of the Commission sets the parameters within which the Commission performs its tasks. The government believes that it is very important that the principles of subsidiarity and proportionality are taken into account in this context. The Vice-Presidents, who are responsible for the strategic direction of the clusters, should adhere to these principles when implementing the Commission’s political guidelines and priorities. In addition, the Commission could devote more attention to these principles in its rules of procedure and its relations with the other institutions (e.g. in an IIA). Finally, the Commission should at the very least examine the potential impact of new proposals on the competitiveness of, the administrative burden on and the financial implications for authorities at national, regional and local level. Such a requirement could be included in the implementation guidelines for IIAs.
Internal organisation of the Council
The formulation and follow-up of the general political direction and priorities of the European Council also need to be improved. In its capacity as the antechamber of the European Council, the General Affairs Council (GAC) plays a key role in this regard. The link between the sectoral Councils, the GAC and the European Council needs to be strengthened. The GAC should be responsible for coordinating contributions to the European Council and ensuring that its decisions are followed up on in the sectoral Councils. The preparatory work of the various sectoral Councils should be carried out in a careful and consistent manner in order to guarantee the effectiveness and legitimacy of the decision-making process. In addition, there needs to be greater coherence, effectiveness and synergy between the GAC and the European Council not only during but also after European Council meetings. For instance, the mechanisms for following up on European Council conclusions and decisions are still not fully developed. If the preparatory work carried out through the GAC improves, the European Council will be able to focus its efforts on setting out general strategic directions and priorities. By the same token, sectoral Council meetings need to be prepared adequately by the relevant Council working parties and Coreper and should link up well with the activities of the European Council. All this should help to create more scope for political debate at summits and sectoral Council meetings. The best way to achieve all this is through the Council’s rules of procedure. During its Presidency of the EU in 2016, the Netherlands will face the challenge of improving the functioning of the sectoral Councils and increasing ministerial participation in sectoral Council meetings.
ii. Strengthening the role of national parliaments
The role of national parliaments needs to be strengthened in order to increase the democratic legitimacy of the European decision-making process. As part of the European Parliament’s interaction with national parliaments, MEPs could participate more regularly in debates in the House of Representatives. The government believes that the Commission can also play a key role in this area by intensifying its relations with national parliaments. For example, it should do the following: strive to be as accessible as possible to national parliamentary committees and be willing to answer questions regarding its policies, visit national parliaments more frequently and use these opportunities to present major legislative proposals, and enhance its dialogue with national parliaments by listening to them more closely. In addition, the Commission should increase its commitment to the yellow card procedure by modifying or withdrawing legislative proposals when one-third of the national parliaments raise objections on subsidiarity grounds. In doing so, it would be treating the yellow card as a de facto red card. Although it is not required to do so under the treaties, the Commission could also devote more attention to such objections in cases where the threshold for issuing a yellow card has not been reached, as well as demonstrating its willingness to consider objections on proportionality grounds. By doing so, it could lend further meaning to the ‘political dialogue’ that it has been conducting with the national parliaments since 2006. (See the Commission’s website for its correspondence with each national parliament.25)
Partly in response to the motion tabled by Pieter Omtzigt (MP) on 14 May 2014,26 the government notes that, just like the other ideas discussed above, a red card procedure could be established under the framework of the current treaties by means of an agreement between the Council and the Commission (and potentially the European Parliament) in which the Commission declares its willingness to withdraw legislative proposals if a certain number of national parliaments object. However, any attempt to introduce a formal red card procedure would require the amendment of Article 7 of the Protocol on the application of the principles of subsidiarity and proportionality. This could take the form of a provision similar to the one that would be included in an interinstitutional agreement. During the negotiation of the Treaty of Lisbon, the government already presented proposals to this effect.27 The various modalities of the red card procedure, such as the timing of its use (at the beginning or end of the negotiating process), the appropriate threshold (the number of parliamentary votes required) and the relevant yardsticks (subsidiarity on its own or together with proportionality and appropriateness), can be modified. The same applies to the procedure’s potential consequences (rejection or amendment of the proposal concerned).
Incidentally, diplomatic and political surveys indicate that there is little to no support for the idea of a red card procedure among our partners in the EU. In this context, the government notes that, according to the Leegte report, the House of Representatives is opposed to issuing a red card at the end of the decision-making process, as this raises legal problems. Instead, it prefers exercising oversight during the drafting and discussion of new legislation. The AIV, too, opposes the red card procedure, on the grounds that it does not help to enhance democratic legitimacy by encouraging proper and substantive debate, unlike the yellow and orange card procedure in its current – or potentially enhanced – form.
iii. Strengthening the interinstitutional balance
As explained in the State of the European Union report, the government believes that the EU’s interinstitutional balance needs to be repaired. This can be achieved, for example, by concluding new interinstitutional agreements (IIAs) or modifying existing ones in order to enhance the procedural relations between the institutions.
One option is to conclude an interinstitutional agreement that lays down the procedures for adopting, implementing and monitoring multiannual programmes. Such an agreement could also strengthen the strategic relationship between the Council and the European Parliament in its capacity as a co-legislator.
Another option is to amend the 2003 Interinstitutional Agreement on Better Law-making. In the government’s opinion, this agreement should be revised to reflect the post-Lisbon relations between the institutions, including the latest incarnation of the codecision procedure. In addition, it should devote attention to procedures relating to consultations, impact assessments, transparency, implementation, delegation and compliance with the EU Charter of Fundamental Rights. The government further believes that the agreement should specifically address the need to lend greater weight to subsidiarity and proportionality, strengthen the role of national parliaments and improve the instruments created to implement, enforce and evaluate European legislation, in particular as regards its impact on regional and local authorities.
A final option would be to conclude an IIA between the Council and the Commission, along the lines of the existing IIA between the European Parliament and the Commission, in order to increase the Commission’s accountability to the Council. Another possibility might be to conclude a new IIA between the Council and the European Parliament in their capacity a co-legislators.
4. Competing forces
Surveys in other member states indicate that opinions on democratic legitimacy vary from country to country. Although such surveys only provide a random snapshot, it is clear that many member states are not conducting a broad public debate on the EU’s democratic legitimacy or the loss of sovereignty, in contrast to the lively debate that is taking place in the Netherlands. In some cases, the debate on the loss of sovereignty is taking place in countries that accepted far-reaching policy reforms in exchange for financial assistance, such as Portugal, Cyprus and Ireland. The context in those countries therefore differs from that in the Netherlands and the United Kingdom, where the debate is much more outspoken. Other member states that were hit hard by the euro crisis, such as Spain, explicitly support further and closer integration.
Many member states are thinking about the role of national parliaments at European level and how they can play a more effective role in the European policy-making process. This question has been examined in two recent reports: ‘The Role of National Parliaments in the European Union’ by the British House of Lords and ‘Twenty-Three Recommendations to Strengthen the Role of National Parliaments in a Changing European Governance’ by the Danish Folketing. It goes without saying that the constitutional status of the various national parliaments plays a key role in this area. The United Kingdom is pursuing an active agenda aimed at strengthening the role of its national parliament. In Germany, the role of the Bundestag on important EU issues is guaranteed by the principle of constitutional review. Although many member states are generally in favour of strengthening the role of national parliaments in the European decision-making process, this does not mean that they support initiatives such as the red card procedure, which enjoys little or no backing among member states and meets with various legal and political objections.
New or updated framework agreements between EU institutions can help strengthen the role of national parliaments in the European decision-making process. However, the balance of power in this regard is still far from settled. Moreover, support for this approach obviously depends on the support of other EU institutions.
Only a small number of member states feel the need to strengthen the role of the European Parliament, for example in terms of its competences in the field of social policy. In addition, most member states are opposed to granting the European Parliament a right of initiative and believe this right should remain with the Commission. A large majority of member states want to preserve the principle of appointing one Commissioner per member state. Within the EU, the Netherlands is one of the countries that takes a liberal approach to freedom of information. It is often supported in this by like-minded member states, such as Sweden, Denmark, Finland and Slovenia while other member states are more reluctant in this regard.
1 Parliamentary Papers 33 351, no. 1 and Parliamentary Papers 33 877, no. 1.
3 Parliamentary Papers 33 877, no. 10.
4 Parliamentary Papers 33 877, no. 9.
5 Parliamentary Papers 33 877, no. 6.
6 Parliamentary Papers 21 501-20, no. 860.
7 Motion by MP Pechtold (withdrawn), Parliamentary Papers 33 877, no. 11.
8 ‘Voorop in Europa; over de rol van de Tweede Kamer en nationale parlementen in de Europese Unie’ (At the forefront of Europe: On the role of the House of Representatives and national parliaments in the European Union).
9 Parliamentary Papers 33 400 V, no. 124.
10 Article 13 TSCG concerns the organisation and promotion of a conference of representatives of the relevant committees of the European Parliament and representatives of the relevant committees of national parliaments in order to discuss budgetary policies and other issues covered by this treaty.
11 For a more detailed discussion of the red card procedure, see section 3.2.i.
12 Regulation (EC) No. 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.
13 Pursuant to article 15 TFEU, the scope of the EU Public Access Regulation must be expanded to all institutions, bodies and agencies of the EU.
14 Parliamentary Papers 21 501-20, no. 704.
15 State of the European Union 2014, Parliamentary Papers 33 877, no. 1.
16 State of the European Union 2014, Parliamentary Papers 33 877, no. 1.
17 Regulation (EU) No. 1175/2011 of 16 November 2011.
18 Council Directive 2011/85/EU of 8 November 2011.
19 COM (2012) 167.
20 Parliamentary Papers 21 501-20, no. 704.
21 Government Gazette 2012, no. 3200.
22 Parliamentary Papers, House of Representatives, 2013-2014, 33 877, no. 9.
23 This applies to art. 311, third and fourth paras., TFEU (determination of own resources); art. 312 (2), first para., TFEU (adoption of multiannual financial framework); art. 352 TFEU (flexibility clause); and art. 354 TFEU (detailed provisions concerning the suspension of certain rights deriving from EU membership when a member state is in serious breach of the values of the EU).
24 This applies to art. 31 (3) TEU; art. 81 (3), second para., TFEU; art. 192 (2), second para., TFEU; art. 312 (2), second para., TFEU; and art. 333 (1) and (2) TFEU.
26 Parliamentary Papers, House of Representatives, 2013-2014, 21 501-20, no. 861.
27 During the negotiations on the Treaty of Lisbon, the government pushed for a greater role for national parliaments in the review of EU legislative proposals. Besides the yellow card procedure, its efforts focused on creating better options for national parliaments to block legislative proposals, in accordance with modalities yet to be determined, if they do not comply with the principles of subsidiarity and proportionality, on the understanding that this does not constitute an individual right of veto for any national parliament and without prejudice to the EU’s institutional balance. See the government’s letters concerning the amendment of the EU treaties of 19 March 2007 (Parliamentary Paper 21 501-20, no. 344) and 21 May 2007 (Parliamentary Paper 21 501-20, no. 356).