University of Leiden

Parliamentary scrutiny on European affairs in

The Netherlands:

The subsidiarity check before and after Lisbon

Master thesis

Public Administration – European Governance

J.P.M. Sullivan MSc

S1076213

Supervisor: Dr. D.D. Toshkov

Second reader: Dr. R. de Ruiter

January 2013

Table of contents

Introduction............................................................................................................................................... 4

1 Literature review and theory on national parliamentary

scrutiny in the EU.................................................................................................................... 8

1.1 On the characteristics and functioning of EU's gatekeepers................................................. 8

1.2 Multi-level Governance and Polycentrism..............................................................................14

1.3 Democratic representation conceptualised in the EU polity:

Multilevel Parliamentary Field or Virtual Third Chamber.................................................17

1.4 Comparing national parliaments on effective scrutiny of EU affairs.................................23

2 Research Setup.........................................................................................................................26

2.1 Research questions....................................................................................................................26

2.2 Case selection and method.......................................................................................................27

2.3 Motivation..................................................................................................................................30

3 Practices of parliamentary scrutiny in the EU setting.........................34

4 Parliamentary scrutiny on EU proposals in the Tweede Kamer......40

4.1 Instruments for parliamentary oversight on EU proposals and recent

observations on the practice of scrutiny…..………………………………………………..40

4.2 Statistics from IPEX regarding subsidiarity-checks by the Staten Generaal....................47

5 Four cases under scrutiny in the Dutch national parliament.............53

5.1 The proposal on the standards of quality and safety of human organs

intended for transplantation (COD/2008/0238).................................................................53

5.2 The proposal on CAP food distribution to the most deprived in the

Community (COD/2008/0183)...............................................................................................57

5.3 The proposal on conditions of entry and residence of third-country

nationals for seasonal employment (COD/2010/0210)......................................................60

5.4 Proposal on the freedom of establishment and freedom to provide services:

the right to take collective action (APP/2012/0064)...........................................................63

6 Comparative analysis from the case studies.....................................................66

Conclusion....................................................................................................................................69

Literature......................................................................................................................................72

Interviews.....................................................................................................................................76

2

List of tables and figures

Table 1. Subsidiarity issues Dutch National Parliament 2006-2012.........................................32-33

Table 2. IPEX documents Dutch National Parliament......................................................................47

Table 3. Documents exchanged through IPEX and subsidiarity-checks

in practice, 2006-2012..............................................................................................................48

Table 4. IPEX priorities and subsidiarity checks Dutch National Parliament

before and after the Lisbon Treaty (2006-2009 and 2010-2012)......................................49

Figure 1. Model of the handling of and scrutiny on Commission proposals in

EU context................................................................................................................................39

Figure 2. Model of the handling EU proposals within the Dutch parliament................................52

3

Introduction

Since the introduction of the Lisbon Treaty, national parliaments of the member

states of the European Union have been granted the formal power of directly

receiving any Commission initiative, amongst which often are legislative proposals;

having an eight-week period for scrutinising those and possibly submitting a

reasoned opinion, together the national parliaments can cause the Commission to

amend or withdraw a proposal in case a minimum of one-third of all national

parliamentary chambers submit a negative conclusion on the basis of the subsidiarity

principle. This new structure of scrutiny in the EU is known as the Early Warning

Mechanism/System (EWS/EWM) and its introduction invites speculation about the

effects on scrutiny of EU affairs by the national representatives, as well as a curiosity

about the circumstances in which proposals are selected for this instrument of

oversight; there is, after all, no parliament in Europe that has the capability and

resources to keep in-depth watch over every single EU initiative. With or without

formal powers to object on certain issues, the national parliaments of the EU have no

other choice then to carefully select the particular European proposals that from the

national perspective could be undesirable. It is this necessity, together with the

relative novelty of the EWS and little experience through existing literature, that has

led me to question in which circumstances the Dutch national parliament actually

undertakes the scrutiny on Commission proposals in the form of subsidiarity-

checking, to which the EWS is limited.

In this thesis, I will give an overview on the scrutiny activities of the Dutch national

parliament, which consist of the Eerste and Tweede Kamer, or Senate and House of

Representatives, and will attempt to indicate the conditions of national parliamentary

scrutiny on EU issues. Since the LT, both Houses review EU law proposals

individually and can both apply one vote within the EWS in case of a negative

evaluation on the subsidiarity principle. A lot has been written about the scrutiny of

national parliaments on EU topics, and already a considerable amount of research

can be found in which scrutiny functions of NPs are compared and evaluated.

However, the question in which circumstances national parliaments react actively on

proposals and how, in this context, the EWS influences their practices, requires more

4

research in my opinion, which should not be surprising given the novelty of direct EU

formal scrutiny powers. Because of a necessary limit of scope, I will focus on the

procedures of the Dutch parliament over the last seven years, of which the last three

years are after the Lisbon Treaty (LT) went into force. The investigation of this will be

centred around a qualitative investigation on the process around a number of EU

proposals debated in the Dutch parliament. I hope to contribute to the research by

what is essentially a qualitative study into the scrutiny activities of the Dutch national

parliament on EU legislative proposals in the current state of affairs.

The role of national parliaments (NPs) in the European Union has been a broadly

discussed topic over the last decade, and one that often highlighted the perceived

diminishing powers of national constituencies within the decision-making structures

of the EU. Although a directly elected European Parliament has been in place since

1979, the European elections are often considered as 'second order' elections, the

reality being that national parliaments are seen as the first and foremost

representatives of EU constituencies. This observation, combined with the growing

competences of the EU executive bodies (Commission and Council), led to the

assertion that the NPs are the 'losers' of European integration (see for example

Maurer & Wessels 2001). The discussion on the fading powers of national

parliaments of EU member states (MS) is therefore closely related to the 'democratic

deficit' discussion (see for example Moravscik 2002 and Follesdal & Hix 2006); the

debated question whether or not the EU is suffering from a lack of direct democratic

control over the executives; on one side, the conceptualisation of the European polity

along intergovernmentalist premises asserting that the EU has to be approached as a

cooperative collection of state actors. The strongest powers are within the nation

states, and thus form the main influences on the EU polity. Opposing this idea, like

Follesdal and Hix do, the EU has to be understood as a multi-level governance entity,

in which the interdependencies of European, national and local polities, and

increasing horizontal policy structures are underlined. A causal mechanism from the

theory is the growth of the EU influencing the difficulty of centralized government,

leading to the wider dispersion of authority to national and local levels, also in

combination with the phenomenon of 'policy networks' that take a central place in the

conceptualisation of MLG, including non-governmental actors that cooperate in

policy across different levels of political authority and across borders.

5

In recent years, several attempts have been made from within the EU to address this

problem. Commission president Barroso in 2006 stated the intention of engaging

NPs in the evaluation of EU legislative proposals on the basis of a direct exchange

between NP and Council of proposals and the opinions generated in the national

representative bodies. In anticipation of the Treaty of Lisbon (LT) that would go

operational after 2009, the Barroso initiative seems to have been more than a

symbolic gesture towards those 'losers of integration'; soon after the statement, it

became clear that new formal powers were being introduced to formalise the scrutiny

over EU legislative proposals. This ultimately led to the introduction in the LT of the

'Early-Warning System/Mechanism' (EWS from here on) in which a share of at least

one third of the EU's NPs could have proposals reviewed or withdrawn in case they

submit a negative opinion about the competence or desirability of EU action over

national measures.

Several studies have pointed out that the share of legislation originating in EU

institutions adopted by NPs has reached between thirty and forty percent of all

implemented law (Finke & Dannwolf 2012, p.2). In today's political reality, the large

majority of MPs are still mainly involved with national topics. If the national

parliaments are to keep a closer watch on EU legislative proposals and to assert their

influence in the EU political system, one would expect an increasing involvement in

EU legislative affairs, especially since their role as 'gatekeepers' (Raunio, 2011) has

been formalized in the latest Treaty. The question about whether or not national

parliamentarians become more occupied with EU topics or not, and if so, in what

manner, leads me to question, in first instance, under which circumstances we can

see MPs make use of the instruments of parliamentary scrutiny in general, and the

subsidiarity check in specific.

Over the last two decades, also the broader 'europeanisation' literature has been

growing into an ever more popular field of comparative politics. The growing number

of EU competences, especially after the 1993 Treaty of Maastricht, could at face value

be supposed as a major influence on national political systems and policy making in

an increasing number of administrative sectors. Some of the main underlying

questions asked by scholars about these 'Europeanising' phenomena, are in what

6

ways the EU and its institutions assert influence on national and sub-national level

administration, and to what extent it really ís true that these influences can be seen in

practice to have their workings on a wide array of policy fields. The research that puts

focus on the EU-related activities of NPs should certainly form an important

contribution to this.

7

Chapter 1

Literature review and Theory on national parliamentary

scrutiny in the EU

In this chapter I will start to assess the literature henceforth written on the topic of

parliamentary scrutiny of EU affairs in the NPs, and specifically the introduction of

the Early Warning System ('Yellow/orange card procedure', to be called 'EWS' from

this point on). The specific field I am looking to focus on afterwards is the decision-

making mechanism in the Dutch national parliament for EU affairs, and specifically

the influence of the new Early Warning Mechanism/System (EWM/EWS). This is the

main institutionalized instrument introduced in the Treaty of Lisbon to influence

parliamentary scrutiny on subsidiarity and proportionality of EU proposals. Since the

Treaty of Lisbon (LT) the so-called 'Yellow/Orange card procedure' has been

entrenched in EU administrative legislation. As mentioned, the improved

possibilities for national parliaments (NPs) in EU member states, be it or not through

mediation of their European Affairs committees, to bring Commission proposals

before vote, can be linked to the influences of the 'democratic deficit' discussion in

the European Governance literature (See for example Moravscik 2002 and Follesdal

& Hix 2006). Already since the mid-seventies, questions are being asked about the

democratic legitimacy and accountability of EU legislation-making in general

(Wallace, Wallace & Pollack 2005). For the role of national parliaments (NPs) of the

Member States in specific, they became widely debated only about twenty years later

as a scholarly subject within Union studies concerned with the democratic deficit

discussion (Raunio 2009). This also related to the thriving Europeanization

literature, in which the influences of European integration on decision-making

structures and implementation of EU policies in the national sphere of the involved

countries are investigated.

1.1 On the characteristics & circumstances in the functioning of EU's

gatekeepers

As the main objective of this research is to find out more about the conditions of

8

scrutiny activities in the Dutch parliament, a start should be made in discussing the

specific topic of the functioning of NPs within the EU in order to set out the broader

context. One of the most prominent scholars in the field of national parliaments

within the EU, Tapio Raunio of the University of Tampere, Finland, has published

various articles on the specific topic roughly since the year of 2006, when the plans

for the introduction of the EWS came into being seriously anticipated. Raunio has

evaluated the functioning of national parliaments within the EU institutional setting

before and after the LT. Following a number of classifications of the functions of

parliaments from a broad perspective, one important general division is made

between functions relating to governance, and those relating to connecting with

citizens (Raunio 2011). First of all, one observation stands out in this respect: the

emphasis of national parliaments within the EU as government oversight. As most

other scholars on the subject also emphasize, the major political parties that make up

NPs are somewhat reluctant to use plenary debates for purely European Union topics,

due partly to the institutional architecture of the Union and partly to the electoral

incentives for political parties in parliament. Thus, with regard to legislation

originating in Brussels, Raunio typifies the NPs as 'gatekeepers', keeping an eye out

for what should not enter, meanwhile occupying themselves for the lion's share with

more salient issues on national level. Moreover, political parties tend to debate issues

to a higher degree when the topic fits into the left-right cleavages within parliament,

and often those are diluted on the topic of EU integration, although EU policies

provide a higher potential for mentioned debates. Even though it is widely recognized

that a substantive share of legislation nowadays originates from EU institutions, the

EWS further reinforces the image of NPs as mere gatekeepers in this; their judgement

on Commission proposals is limited to objections on the basis of proportionality and

subsidiarity, the latter being the exclusive vessel of a potential objection which has

the possibility of accumulating towards the yellow card. Although these limitations of

NPs are emphasised, as will be noticed, by a large number of other scholars, it is of

importance nonetheless to evaluate the actual influence of the EWS on the

involvement at the national level, now that we have a three-year experience with the

mechanism.

From this assertion naturally follows the question under which conditions different

national parliaments across the EU-27 can best perform their scrutiny functions on

9

the European level. Carina Sprungk of the Freie Universität of Berlin, in her 2010

article, tries to make a start for the measurement of those conditions. Her case study

comparing the scrutiny activities of the German Bundestag and the French

Assemblée Nationale around the Water Framework Directive is taken from the initial

assumption that but little is proven about the conditions under which NPs can

effectively apply formal powers, and however measurable these are, it is not clear that

more formal rights amount to better accountability of EU decision-making. One of

the observations that follow indeed, is that not the sheer level of formal powers

institutionalized and the level of activity on scrutiny matter most, but predominantly

the quality, that is, the manner in which parliamentary scrutiny is performed, shows

us indicators of the potential success (which amounts to a higher degree of

accountability of EU politics). Entrenching the results of the case study in the

underlying theoretical framework of principal-agent theory, it is shown that existing

accountability mechanisms should preferably be used by both opposition and

majority parties within parliament in the process of oversight on EU affairs, whereas

on national level, it is mainly the opposition that is actively engaged in applying those

accountability mechanisms. Following a notion put forward by Anthony King, the so

called 'opposition mode', the main argument teaches us that in EU context, ideally

both opposition and majority take the opposition role to hold the government

accountable (Sprungk, 2010). Thus, the claim that a higher degree of scrutiny or

more formal powers do not necessarily lead to more accountability, implies that for

explaining parliament involvement in EU proposals, the measurement of formal

rights and powers on EU affairs adopted in NPs, like those after the LT, should be

complemented by the observations on the way in which they are put to practice in

political reality. An important factor to measure the degree of accountability lies

within the empowerment of specialized parliamentary committees for the oversight

on European proposals. As such, they have a potential for adjustment of national

level accountability mechanisms within the 'Europeanisation of domestic principal-

agent relationships' (Sprungk 2010, p.8).

Although the present capabilities of EACs show much variation among the EU-27,

neither this can in itself account for the effectiveness of scrutiny. As Sprungk shows

from her comparative case study on the French Assemblée Nationale (AN) and the

German Bundestag (BT), one would expect the BT to find more paths for solid

10

scrutiny. However, another important factor, mainly illustrated in an investigative

report by Auel & Raunio from 2011 on which I will expand after this, is the range of

political contestation on EU issues among parties in parliament. Notwithstanding a

proper institutionalization and functioning of so-called Standing Committees of

European Affairs (EACs), the presence in parliament of Eurosceptical parties

provides a possible explanation for the inclination to discuss proposals in the plenary.

Pro-integration parties mainly carry the conviction that the politicization of European

topics endangers their popular support, as most mainstream parties have been shown

to be less Eurosceptical than their voter base (Hooghe and Marks 2008). In this

context, Germany perhaps provides 'the best paradigmatic example of a system of

limited contestation with the main parties solidly supportive of further integration'

(Auel & Raunio 2011). This seems to confirm Sprungk's observations comparing the

scrutiny process of the Assemblée Nationale and the Bundestag, of which one would

at first sight expect the BT to score better, but in which the conclusion after

qualitative case study on several legislative proposals turns out to be the opposite,

that is, the AN showing to hold the government more effectively accountable in the

multi-level governance setting of the EU (Sprungk, p.16). Additional explanatory

observations towards this conclusion are made by Auel & Raunio (2011, p. 9) when

they signal a relative gap between voters and MPs over European integration. Over

the last years, more parties can be seen to take a cautious stance on the EU, a critical

development that can be noticed in practically any net-paying country, as a result of

the need for more financial support for the EU budget and similar crisis-containing

measures caused by the dire situation concerning the national budget in countries

like Spain, Ireland, Italy, Portugal and above all Greece.

In their already mentioned 2011 paper, 'Debating the State of the Union? A

comparative analysis of national parliamentary debates on EU affairs', Katrin Auel

and Tapio Raunio focus mainly on how the communication function of parliaments is

fulfilled, as one important aspect of scrutiny implies the existence of a public debate,

by which citizens are allowed to make informed (electoral) choices by the conduct

and position of parties on European affairs. Their main indicator to measure this is

the parliamentary plenary debate, which opens up the possibility of identifying

competing policy agendas. Recent research has suggested that salient EU topics

seems to invoke a larger share of plenary debates on EU issues, and their research

11

focuses on the practices of four of the EU's NPs, namely the Lower houses of Great

Britain, Germany, France and Finland on three recent salient EU topics. The

hypotheses prior to their case study are divided by 'institutional factors' and 'party

strategic factors' and depend partly on the division between 'working parliaments'

and 'debating parliaments'; “Working parliaments are characterized by standing

orders that emphasise committee work over plenary debates, with a parliamentary

culture where MPs focus on scrutiny of documents in committees instead of grand

speeches on the floor. (…) debating legislatures are, on average, less consensual, with

the opposition using plenary to criticise the government.” (Auel & Raunio, p. 3). After

the analysis of the handling of the three dossiers in the four parliaments, one

conclusion is that the party strategic factors explain the use of plenary debates to a

higher degree than the institutional setting; the institutional factors do matter, “but

only insofar as they serve either the interests of the government (especially in the UK)

or the main party groups.” (p. 20). Furthermore, the distinction between 'debating'

and 'working' parliaments turns out to have little explanatory value in this case, as

illustrated for example by the committee-driven German BT, which has shown to be a

prominent theatre of plenary debates on EU issues, while the British House of

Commons (HoC) shows more inclination to handle EU related topics away from the

open floor. As mentioned, these empirical observations should rather be explained,

according to Auel and Raunio, by the incentives of political parties. In Germany,

where the main parties operate behind a relatively large public support of European

integration, the use of the plenary is not shunned to such a degree as can be seen in

the Finnish Eduskunta or the British HoC, where the debates are limited mainly to

EU 'high politics' such as Treaty ratifications or European Council meetings. This

meets the expectation formulated in the hypothesis about internal cohesion within

the political parties in the NPs: the less cohesive in EU matters, 'the less we can

expect NPs to fulfil their communication function through plenary debates.' (Auel &

Raunio 2011, p. 5)

As we have seen already, a considerable number of hypotheses have been tested

about the circumstances in which parliamentary scrutiny on EU legislation asserts

itself to a higher or lower degree across national chambers and their committees. This

also goes for the workings of the Dutch Tweede Kamer, for example in the study of

Christine Neuhold and Rik de Ruiter of parliamentary control on EU affairs in the

12

Netherlands and the UK in their 2010 article in which a case study on the REACH

(chemical substance regulations) has been conducted, as well as several reports from

within government or administration. This literature focusing (in comparative sense

or not) on the Tweede Kamer, I will bring to attention in the next section dedicated

specifically on the Dutch practice and academic literature about it. Apart from

various hypotheses for meso-level analysis, most scholars until now have refrained

from the challenge of taking steps towards a broader general theoretical framework

on the specific topic. Only about three propositions (to be discussed in the next

paragraph) towards an analytical or heuristic theoretical framework on parliamentary

scrutiny have the ambition of moving towards a new way of looking at the realities at

hand. This is not surprising at this point in time, because of the large differences of

practice across EU member states, and the -so far- relatively unmethodical

cooperation between the NPs of those. Within the COSAC some practical tests have

been conducted, to which I will come back later, but in general, the NPs across

member states have not been distinctive in producing common efforts to provide a

counterbalance to the established EU institutions. More importantly for this section,

over the last five years it has been obvious for any observer that growing

euroscepticism within the electorates has somewhat halted the goal of ever closer

union (although never it was shared by all) and seems to put a new discussion on

whether or not national sovereignty has been encroached upon too much too quickly

over the years. A natural reaction then to the debated ever closer union, would be to

pursue a promotion of ever closer scrutiny, especially in most mainstream parties

that refrain from the unambiguous anti-EU goals of a great many parties towards the

left and right ends of the political spectrum in Europe. Measures towards a higher

degree of accountability, such as the Co-decision procedure, parliamentary mandates

for Council ministers and the EWS, have been institutionalized. The development of

politicization of EU institutes for accountability purposes is indeed observed widely,

but institutionalization of national parliamentary control and horizontal

cooperation towards this end, is still largely in progress and thus difficult to theorize

in a consistent matter.

13

1.2 Multi-Level Governance and Polycentrism

The concept of Multi-level governance (MLG) has been invented by Hooghe and

Marks as a result of the perceived structures of governance in the European Union

institutions after the Treaty of Maastricht. The theory serves as a device to better

understand the political realities, in which multiple layers of governance (European,

national, regional, municipal) are interlaced or entangled, implying a fading of the

strict separation of national and international policy-making in the European Union.

An important concept in the literature that describes MLG is the emergence of so-

called policy networks, in which multiple actors across the traditional levels, and also

from outside administration (lobbyists, interest groups) are involved in the process of

agenda setting and decision-making. Thus, MLG not only recognizes the shift

towards integration with supranational traits, but also new forms of, albeit further

reaching, intergovernmental cooperation within the European Union. Differentiating

from traditional federal governance theories, MLG emphasises that in the EU the

democratic representation consists of two institutional channels, the EP and the NPs,

and this reality cannot be typified by integral federal arrangements. The MLG then

provides for a polity approach in which interaction takes place across the institutional

'levels', as opposed to more readily explained hierarchical structure in which the

elaboration of decisions are limited to the top of the national executive through the

sovereignty of parliament.

Although the concept of MLG seems to highlight an increase in public participation

and a slight fading of strictly hierarchical relations, the main difficulty arising with

respect to the accountability of EU politics is the increasingly difficult perception of

democratic oversight or transparency. According to Holzhacker (2004), this has

influenced national parliaments in two fundamental ways:

“First, increasing proportions of sovereign decision-making in important

policy areas are being transferred to the EU level, decreasing the

independent decision-making capability of the nation-state. Second, to the

extent that the authority that has been transferred to the EU resides in the

European Council or the Council of Ministers, there has been a transfer of

14

decision-making authority from the parliamentary level to the member

states’ executives. The power to reach decisions in policy areas that have

traditionally been vested in national parliaments now rests in part either in

the supranational decision-making institutions of the EU or in national

governments when they vote in the intergovernmental decision-making

institutions of the EU.” (Holzhacker 2004, p. 3)

Opposition parties on national level do play a bigger or lesser role, but a substantial

one in any case, in the continuous representative – executive interaction in the

democratic system. By the above quoted developments, it seems to have grown into

reality that the executives almost exclusively have powers to influence EU decision-

making, and concern rises that the opposition parties' influence can become

completely diluted on EU level, save from the critique they can direct publicly

towards their government or competing majority parties in general. It is one of the

reasons of the recent focus on the empowerment of NPs as a whole concerning EU

affairs.

From a theoretical standpoint, and relevant in this case because of the focus within

this on the EU's national parliaments, a notable critique on MLG comes from the

Leonard Besselink article in Kiiver's National and regional parliaments in the

European constitutional order (2006, pp. 117-131). Amidst the construction of the

Lisbon Treaty, preceded by the Draft Constitution, the Barroso initiative and the

development towards the entrenchment of parliamentary scrutiny on subsidiarity

grounds by NP's, the article points out some difficulties with the MLG or 'levels-

paradigm' as Besselink states. First, the way in which it serves as a starting point in

viewing reality, by nature it conceives the constitutional order as a model built on

'levels', which implies essentially the existence of a hierarchical structure; the

changing powers then would consist, mostly, of a transfer of powers from a higher to

a lower level. The notion of a broader consensual structure in MLG thus, cannot

prevent that in essence, one will still perceive the transfer of powers from one level to

the other as a zero sum game; with the attribution of certain powers to the EU level,

these powers disappear or dilute at, typically, the national level. If we consequently

look at the development of scrutiny by NPs on EU decision-making, which is

generally perceived as serving a development to counteract either the loss of national

15

sovereignty, or the deminished control of accountability, then in fact, the levels-

paradigm reinforces this image, because NPs could vote a 'no' against any

Commission proposal or intended government position in the Council, but are not

politically involved, less even along partisan lines. It is a process that takes place on

the national level, and can serve to reinforce the national position to be represented

in Council, but does not inject any political vision into the EU level. “(...) European

issues are rarely considered the object of partisan politics, but usually as non-partisan

national politics. The game is one that is played at neatly compartmentalised 'levels'.

It follows the rules and uses the vocabulary of the 'levels paradigm'.” (Besselink, p.

119).

In contrast, as Besselink advocates, the 'polycentric paradigm' can serve as an

alternative lens in viewing the possibilities of national parliaments within a truly

composite legal order. Not only the Treaties (constitutional law) of the EU but also

secondary law (unilateral acts such as directives, agreements, green/white papers,

regulations and recommendations) as well as the constitutional law of each member

state comprise of the polycentric order of the EU institutional build-up. This

practically means the advancement of the NPs towards a European role within the

broader EU framework instead of merely a role on the national level on EU affairs

guarded from the 'Brussels' (or 'Brussels & Strasbourg') sphere. In this way of seeing

reality, the author foresees the more inclusive point of view of a polycentric

constitutional order as a way for NP's to directly get involved in the EU system,

because they will not be limited any more to report their stance to or through the

national government, but can reply their reasoned opinions directly back to the EU

institutions, from which they also directly receive propositions instead of being

dependent on their governments for information. Importantly for this thesis, it is to

be seen if this notion resonates in the Dutch political reality to amount to a

quantitative increase in parliamentary involvement directed towards the EU

institutions.

Notwithstanding the indicated possibilities for the EU's NPs, in practice it is not yet

clear if the balance will shift towards a broader involvement. As for our specific topic,

the new subsidiarity scrutiny mechanism, Besselink asserts that the EWS poses a

great threat to the broader involvement of NPs in EU affairs: “[it] may lead to an

16

investment of scarce resources into one form of early scrutiny which will detract from

existing and alternative mechanisms of national parliamentary scrutiny which are at

least as far-reaching and meaningful, (or even more so) as the subsidiarity test alone.

(…) In fact, it may force parliaments further into the 'levels' approach: once a matter

is considered an EU matter, that is the end of a role for national parliaments, and

only in the opposite case (a matter not being suitable for EU decision-making) is

there a role for national parliaments.” (pp. 126-127) As is obvious, the article is more

about a change in view than creating a theoretical framework, in its way it precedes

the possibilities of constructing such a theory; intending to change the perspective is

the first step on which to start building such a framework. However, this intended

switch in perspective could be fruitful to bear in mind when our focus will switch

towards the practice of the Tweede Kamer, and the specific cases of scrutiny to be

discussed in a later stage, especially since Besselink has observed that The

Netherlands is a case in point for the 'levels' approach, since parliament used to act

mainly when the powers of EP in a specific case are lacking – thus taking a mutually

exclusive stance in the EP-NP role-playing on scrutiny. It is to be seen from the

practical cases to be discussed, if a change has taken place, which I expect is indeed

so, having a first glance at the evaluation of parliamentary involvement from the

report 'Bovenop Europa': Evaluatie van de versterkte EU-ondersteuning van de

Tweede Kamer, 2007-2011 (Report to the Tweede Kamer, free translation:

'Scrutinizing Europe: Evaluation of the strengthened assistance on EU affairs in the

Tweede Kamer'). First, I will proceed with discussing two theoretical concepts that

have been forwarded in recent years in the context of national parliamentary activity

on EU issues in the Member States.

1.3 Democratic representation conceptualised in the EU polity:

Multilevel Parliamentary Field or Virtual Third Chamber

The EU structure of governance does not smoothly fit in with the existing concepts

about democratic representation derived from the nation state or from international

relations. Crum and Fossum uphold that same notion, seeing the development of EU

governance towards a multi-level system as partly uncaptured by democratic theory.

The EU constitutional set-up consists both of a directly elected EP, which does not

17

neatly resemble traditional parliaments, nor carries all the traditional powers and

responsibilities connected with them. Simultaneously, the NPs of the EU member

states do generally fulfil this role, although on the EU level they are relatively limited

in the process of policy-making. According to Crum & Fossum, four main

characteristics of the EU illustrate the difference from federal arrangement. First, the

absence of a federal government. Second, “the evolution of democratic representation

systematically lags behind the allocation of competences to the EU level.” (p.256).

This point is well illustrated by the fact that Treaty revisions do not even require the

involvement of EP nor any other elected body. The third argument is that instead of

being a classic monocentric polity, the EU rather forms a 'modified polycentric'

system of governance. There is not a single level or institution that embodies

sovereignty nor a true European constituency (and the EP elections are often

denounced as being 'second order elections'). Fourth, the cultural and institutional

pluralism, where in the EU both horizontally and vertically there are huge

incongruities.

For the analysis of the representational structure of democracy in the EU (and

beyond, as they ambitiously state) Crum & Fossum propose the concept of the 'Multi-

level Parliamentary Field' (Crum & Fossum 2009). As for the federal concept, we

have seen the reasons for offering a different viewpoint. At first sight, the Field notion

offers only a minor modification on the concept of Multi-level governance, but within

the subject matter of parliamentary cooperation between NPs and EP, the notion of

governance in networks so typical of MLG, according to the authors, comes up short

in drawing a neat picture of reality; the flexible or even indiscriminate network

notion “leaves little room for appreciating the norms that constitute them and their

behaviour” (p.258). Specifically, the role of the EP within the parliamentary network

concept is problematic, being a supranational body, and although included in the

parliamentary network system together with NPs, not on the same level. In the end,

within the topic it is of the essence to understand how the separate institutions link

up. In the article, its authors do however, in my opinion, come up short in exactly

drawing the importance of the notion of multi-level parliamentary field, failing to

convince one what precisely are the consequences for research in the area. Devising

this new concept on the workings of parliamentary involvement in the EU can help in

understanding the broad workings of the EU polity, but does not, to start with,

18

provide us with explanatory value on how, and in which instances, NPs in the EU

tend to deal with EU topics in practice, nor does it provide a better understanding of

the impact of for example the EWS, on which I will focus later. Indeed it is clear that

the EU polity should not be understood as a form of two-channel federal system, nor

that the parliamentary network notion suffices to explain political reality, but in

explanatory terms the concept of multi-level parliamentary field does not move us

very far beyond the already accepted Multi-level governance concept to characterize

the forms of legislative practices and structures that the development of the EU has

brought about.

In his article “A 'Virtual Third Chamber' for the European Union? National

parliaments after the Treaty of Lisbon”, Ian Cooper brings up another concept for the

role of the NPs in within European governance since the Treaty of Lisbon, which is

more specific in conceptualising their role specified within the introduction of the

EWS. The notion of 'virtual third chamber' is basically put forward to describe the

institutionalization of the direct influence on the EU level for NPs, making them a

collective actor in the realm of democracy beyond the nation state, next to the Council

and EP. Although the sum of NPs does not make a third 'Union legislator', their

leverage gained by the EWS and the growing interparliamentary cooperation make

them sort of a composite chamber that does not meet in a concrete place (thus 'virtual

third chamber', from here VTC). The merits of this concept are then put against the

light of the three main functions of a parliamentary chamber:

Legislation: “Do the NPs collectively have the power to influence legislative

outcomes in the EU, and do they exercise that power?”

Representation: “Does the EWM create a new link between the citizen and the

EU that serves to enhance the democratic legitimacy of the EU?”

Deliberation: “Does the EWM create a deliberative forum that enhances the

public discussion of EU affairs?” (Cooper 2011, p.2)

Furthermore, the analysis of three occasions of interparliamentary cooperation

around the EWS serves to enhance our understanding of the above. First, the eight

subsidiarity check tests that the COSAC initiated before the LT came into effect.

Second, the set-up of an the information network, IPEX, to enhance the interchange

19

of views between NPs, and third, the 2006 Barroso initiative that invited the NPs to

send in comments on planned Commission legislation proposals, also beyond

concerns of subsidiarity. Thus, the EWS is the main vehicle of the VTC, but not the

only one.

Although the influence of the NPs on the legislative outcomes in the EU is still to

considered to be quite limited, the EWS provides for an institutionalization of their

role in this sphere, according to Cooper. This in itself can be a start to stimulate the

involvement of NPs directly at European level. For the first time in history they can

collectively intervene directly in EU affairs, which can be expected to stimulate

national parliamentarians to keep a closer watch on pending EU legislation, although

the desirability of this last point basically remains a normative question in the

current setting where the NPs are limited to objections on subsidiarity. However, an

increasing involvement in EU affairs, be it within the limitations at hand, is not

unthinkable to have some spillover effects that could result in a broader involvement

of MPs. Still, given the very short reaction time of eight weeks to gather the combined

reasoned opinions, plus the restriction to opinions on subsidiarity issues that is

officially demanded, amongst other objections, most scholars until now agree that the

direct influence of the EWS is easily overestimated, or even seen as a threat to more

substantive activities by taking scarce resources on time and budget, while not

resulting in tangible results on EU decision-making. As Dr. Gavin Barrett (University

College Dublin) states during the Conference on 'Parliaments in the European Union

after Lisbon' (Maastricht, March 23-24 2012): “The EWS generated much interest on

committee level, but more on substance rather than subsidiarity. In 2010 we saw the

first full year of the EWS in practice: 82 drafts were sent to national parliaments,

which generated 211 opinions sent back, of which only 34 were reasoned opinions. It

looks like EWS requires a lot of organisation of NPs internally and collectively. In the

end I see the mechanism more as a dignified than an efficient measure.”1 This

observation seemed to be very much to the point: until that time no yellow card, let

alone an orange card majority was reached, and this still seems very difficult to

obtain within the short timeframe allowed, but the institutionalisation of the

1 Conference 'Parliaments in the European Union after Lisbon', Maastricht, March 23-24 2012, which was organised by the Montesquieu

Institute Maastricht and the Observatory of Parliaments after the Treaty of Lisbon (OPAL).

20

possibility of such a blocking minority not only gives the signal that NPs are taken

seriously in the EU, but also that the Commission should be well prepared to

counterargument the feedback on its proposals and specifically to explain why EU

action is warranted.

Cooper points out that there are some factors mitigating in part those practical

difficulties and limited effect, or at least are probable to provide future prospects. The

COSAC subsidiarity test has shown an increasing number of replies over the years

that it was practised. Furthermore, notwithstanding a varying degree of participation,

in the case of minority governed parliaments and the upper chambers, MPs will have

a better incentive to take an independent stance in EU affairs from their governments

and legitimatise participation in legislation on EU level. Although its effect cannot be

proven yet on legislative outcomes, the representation and deliberation functions are

not to be overseen. An analogy is drawn with the EP, which only had a deliberative

function in the beginning of its existence, but after 1979 gained the function of direct

representation and after the Single European Act also a clear role in legislative

influence, enforced by the Co-decision procedure. According to Cooper, the VTC for

the time being quite resembles the EP powers under the Cooperation procedure; on

its own still unable to exert real legislative influence, but in accord with either

Commission or Council it could come to influence final legislative results. With that

we come to a third mitigating argument: the gradual development from informal

influence towards obtaining leverage to clinch more substantive institutionalised

powers -a development observed in the history of the EP- could offer a similar

prospect for the VTC.

As for the representative function of the VTC, three arguments should be mentioned

from the article that speak in favour of the EWS. First, the gradual increase of relative

power of executive bodies compared to the legislative branch that historically

accompanies the development of the EU. “(...)as powers have shifted upwards,

national parliaments have lost much of their ability to scrutinize and control their

own governments’ conduct of EU affairs, and the increase in power for the EP has not

compensated for this loss. This is the 'deparliamentarization' thesis (O'Brennan and

Raunio 2007).” (Cooper, p.15). Second, the legitimacy of NPs is unique and has not

been replaced by EP, still considered as 'second-order' elections by many. This

21

unique role of most direct representatives of European electorates was further

underlined by the 2009 Karlsruhe ruling over the compatibility of the LT with the

German principles of democracy. Third, the very limitation on subsidiarity issues, by

nature of the concept of subsidiarity, gives the NPs the opportunity to concentrate on

defending their sphere of competence against the 'encroachment of EU powers.” (p.

16) Given the disparate and heterogeneous nature of the collection of EU's NPs, their

representative power in the EU arena is challenged by scholars such as Kiiver (2006):

first of all, casting votes in the EWS can easily presuppose them as unitary actors,

which is surely a distortion of reality. “the German Bundesrat, which is a legislator

but not a parliament, the federal parliament of Belgium, which is a parliament but

not always a legislator, the French Assemblee Nationale, to whom the President is not

accountable, the Polish Senate, to whom the government is not accountable, and the

UK House of Lords, which is not even elected” (Kiiver 2006: 185). Cooper does not

agree though, that these particular differences obstruct their issue-to-issue capability

to take collective decisions as a unitary actor (at least on the concerning issue), just

like the European Council (equally heterogeneous) or Council of Ministers.

On the deliberation function of the sum of NPs, Cooper asserts that the EWS will

have a value-added public discussion of salient issues in the EU's public policy

formation. Quantitative, in the first place, as has been shown in the COSAC

subsidiarity tests, in which an increase could be seen in interparliamentary

deliberation as well as the vertical dimension, shown by the increasing satisfaction

from NPs with Commission justifications. Also, the Commission has added the so-

called 'impact assessment' of qualitative and quantitative consequences of proposed

legislation. On the qualitative dimension of the possible deliberation function

improvements, this is naturally much more difficult to assess. As it is, the scrutiny

limited to subsidiarity concerns has led to a discussion on the interpretation of

subsidiarity itself. While mostly framed as a legal or technical issue, it cannot be

denied that there is a political dimension in judging which cases 'best fit' national

competence and which 'should' be arranged by supranational ruling. This allows for

the NPs to judge in which cases, and in the end how far, the EU can encroach upon

their own sphere of power. The political dialogue among the NPs also remains

substantive for the notion of VTC; although the entrenchment of the EWS has

prompted Cooper to conceive the notion of VTC, the functioning could be wider: it is,

22

for example, perfectly accepted to send recommendations of any nature or grounds to

the Commission. As such, the EWS “(...)may be thought of merely as a legally-binding

'hard-core' within a much broader, non-binding deliberative exchange among NPs

and EU institutions.” (Cooper, p. 23) This assumption is to be tested for the Dutch

cases later in this research, when we will have a more in-depth look at the scrutiny

activities of the Dutch parliament.

1.4 Comparing parliaments on effective scrutiny of EU affairs

Apart from the already mentioned comparative study by Sprungk, as yet not many

studies try to explain the conditions in which scrutiny of NPs on EU affairs is

effective. I will now take a look at the recent observations specifically involving the

Dutch parliament, in the from of a preliminary comparative research on the Dutch

and British methods based on a case study of the REACH proposal (Regulation on the

registration, evaluation, authorisation and restriction of chemical substances) in the

2010 article 'Out of REACH? Parliamentary control of EU affairs in the Netherlands

and the UK' by Christine Neuhold and Rik de Ruiter. This article can be of specific

interest here, as Neuhold and De Ruiter focus on the question how the recent

institutional reforms impact the working of NPs at the practical political process. The

first hypothesis is generated from the expectations based on the aforementioned

Maurer & Wessels comparative study from 2001, in which NPs are classified on the

basis of formal scrutiny rights, and is stated as: “The higher the position of NPs in the

classification with regard to their formal scrutiny rights, the stronger scrutiny over

EU affairs is exercised in practice by parliamentarians.” The authors specify that

'The scrutiny of EU affairs' is conceptualised as: “i)the information obtained by

parliamentarians, ii) which is processed and followed up by parliamentarians, and iii)

the use of EU scrutiny rights in practice.” (p. 60). As for the independent variable, the

main difference between the Dutch and UK parliaments is a tighter formal scrutiny in

The Netherlands, as the Dutch parliament can hold its respective minister

accountable for his/her actions in Council. This hypothesis is not confirmed by the

case study into REACH; both Houses in the UK were very pro-active in holding their

representatives accountable, in the Dutch case this was, expectation-wise, quite

infrequently the case. “If we thus interpret the concept of parliamentary scrutiny as

23

not only exerting actual influence on EU legislation but also obtaining information,

following up on EU affairs and raising points of attention, the UK scores better than

the Netherlands. This is in contrast with the first hypothesis.” (p. 69)

The two other hypotheses in this article are derived from the broad distinctions

drawn up by Lijphard (in 'Patterns of democracy: government, forms and

performance in thirty-six countries', Yale University Press 1999), who distinguishes

between different parliamentary systems: consensual and majoritarian (the first

applying to the Dutch, the second to the UK parliament). It is expected that

consensual models provide for scrutiny of EU issues less in plenary debates and

more by specialized parliamentary committees, and that in consensual models both

the Upper and Lower chambers are involved and in majoritarian ones predominantly

the Lower chamber. None of these last two hypotheses can be confirmed by the

REACH case study, possibly because of the highly technical character, which caused

the specialized committees in both countries to be very prominently involved, and the

same went for the British House of Lords, unexpectedly. Because of the fact that in

this study I do not primarily focus on comparing the differences between different

NPs on the basis of this distinction, however interesting and important a task this is, I

will for now take into account for the present study mainly the first hypothesis, since

the focus here lies with the influence of the EWM on parliamentary decision-making

in the Dutch parliament.

According to the authors, the EAC of the Tweede Kamer was not considered sufficient

on its own to execute the scrutiny function at the time the REACH became discussed

since 2004. This is little surprising, since the chemical substances topic is highly

technical, and apart from the specialized committees (VROM – Housing, Spatial

Planning and the Environment, and EZ – Economic Affairs) involved in the

information gathering and processing for MPs, also the Tijdelijke Gemengde

Commissie Subsidiariteitstoets (Temporary Mixed Committee Subsidiarity-check)

consisting of members of both Eerste and Tweede Kamer was involved. The

participation of the TGCS is presented by the authors as a result of the perceived

shortcomings of the EAC in this case, but the notion that the committee was created

foremost to participate in the EU-wide subsidiarity check 'pilot' period in the

anticipation of the EWM, is probably closer to the truth. Anyhow, the MPs of the

24

Eerste Kamer mainly participated through this committee, since their own EAC has

only the authority to pass or reject a proposal. Most of the time and resources,

however, were taken up by the two specialised committees involved in the process.

After the BNC-file was provided to the MPs, an interesting observation follows: first,

the MPs stance on substantive issue themes like regulation (and its bureaucratic

consequences), environmental and economic results, was diverse and highly

contested even between the centre parties (although a traditional left-right cleavage is

observed). Second, that the discussions between government and committees reveal a

remarkable feature about the information provision to MPs. Regardless of political

orientation, all parliamentary groups stressed the need to be more closely informed,

which highlights the parliament-government dichotomy, an aspect that is

undoubtedly central in the main topic of this study, scrutiny on EU proposals. Along

with the request for more information, short time periods between provision of

information and committee meetings and ultimately the Council meeting, were also

widely observed as burdensome (Neuhold & De Ruiter, p. 65). It is still to be seen if

this problem is alleviated by the new formal scrutiny period of two months (after

initially, but directly receiving EU proposals) according to MPs in the Dutch

parliament.

One influencing factor on the scrutiny of EU affairs that should be considered among

scholars of the subject, according to Neuhold & De Ruiter, is the technical expertise

that happens to be present in the NPs on the debated EU legislation. The main

conclusions however, which are in accordance with the findings of most other authors

described in the second chapter, teach us that the 'rankings' of parliaments on formal

scrutiny powers in the EU made predominantly since the beginning of the last

decade, do not say all that much about the practical effectiveness of the scrutiny

process in the most recent period, since the anticipation of the Lisbon Treaty and the

couple of years since its ratification, after which a more substantive formal role is

provided for the EU's national parliaments.

25

Chapter 2

Research Setup

The research on this topic will take the form of a case study, in order to evaluate the

situation of the Dutch parliament, which can be of additional value for study in a

more general sense. Of course to make better generalisation possible, one would need

more information about parliaments across different EU member states. This type of

research has been conducted after the Treaty of Maastricht, in which the intentions to

improve the participation of national parliaments in EU affairs were also stated

(Maurer and Wessels 2001). However, given the fairly recent ratification of the

Lisbon Treaty and the stated intentions on the empowerment of national

parliaments, it should be worthwhile to see and compare the influence of the new

procedures. The unit of analysis for my study therefore needs to be brought back to a

limited scope, which is the Dutch national parliament, and the unit of observation is

the treatment of a Commission proposal in parliament that can lead to the EWS' vote.

Beyond measuring and comparing of quantifiable data, one needs to look towards

analysing the meaning of this within the multi-level governmental setting in the EU.

In other words, what we can learn from the data of the procedural side of the

democratic setting in the Dutch parliament, cannot automatically be generalized to

the entire EU polity, but serves merely as a start to evaluate and conceptualise the

role of NPs since the Lisbon Treaty.

2.1 Research questions

Following the facts described above about the recent developments in the EU

concerning the new EWS, combined with my focus on the practices of Dutch

parliament, my research question will be:

Under which conditions do EU legislative proposals lead to the application of the

Early Warning Mechanism in the Dutch national parliament?

When the Dutch parliament scrutinises a EU proposal and objects with the effect of

26

contributing to a possible yellow card, the objections necessarily have to be on the

grounds of subsidiarity. Thus the application of the so-called 'subsidiariteitstoets'

(subsidiarity-check) is what I will have to observe in specific. By research into several

cases that have been picked out for scrutiny by the Dutch NP, I also intend to give an

indication on the following sub-questions:

What is the influence of the EU-wide measure of enhanced national parliamentary

scrutiny on practices of the Dutch national parliament?

Does the involvement of the Eerste Kamer (Upper House) in the scrutiny of EU

proposals in parliament lead to a higher number of subsidiarity objections?

My expectation derived from the above-mentioned research questions and the theory

discussed, is that the Dutch national parliament will have an increasing 'European

consciousness', by which I mean that they realize their enhanced possibilities to

influence EU decision-making, which will show in an expected increase in issues

brought before parliament for early debate in the form of evaluations based on the

subsidiarity principle.

2.2 Case selection and method

The current investigation focuses on just one country, but the scrutiny on several

proposals are studied, which forms the core of this comparative case study. A

complete overview of all proposals that have been selected by the Dutch parliament

for the subsidiarity-check is included at the bottom of this chapter (Table 1). To be

able to better evaluate the circumstances posed in the main research question, I have

selected four cases from this overview in which the Tweede Kamer performed

subsidiarity checks, which are chosen to be as diverse as possible on various criteria.

First, by the pre- and post-Lisbon Treaty chronology: two cases are on scrutiny of

proposals before the LT went operational, the Commission proposals being published

in 2008, and two are selected from the period after 2009, cases which could in fact

lead to a yellow card, as the proposals were published in 2010 and 2012. In the last

case, known as the 'Monti II' proposal, this has led to the first yellow card, an effort

unexpected until that time by many, as noted from the literature, also enforced by the

27

fact that at the moment COSAC ended its pilot on common subsidiarity checks in

2009, the maximum number of reasoned opinions on all subsidiarity dossiers

selected by them amounted to thirteen, substantially less than the needed eighteen

votes for a virtual yellow card. In the selection of the four cases, it should also be

noted that a large differentiation exists in the amount of feedback from the different

NPs that they provide through IPEX (Interparliamentary EU information eXchange,

the database that was set up by COSAC to stimulate interparliamentary cooperation

in the form of information exchange on EU dossiers under the attention of NPs); The

transplantation proposal obtains the highest number of parliamentary involvement

with no less than thirty-three national Chambers (the upper and lower chambers and

unicameral ones all counted separately). In the actual 'yellow card case' or Monti II

proposal, thirty chambers were active through IPEX, twenty-four on the seasonal

migration case and only twenty for the food provision proposal.

Some more needs to be explained about the case selection: it speaks almost for itself

that the 'yellow card' - case is useful to compare to other efforts, since it was obviously

salient in the EU polity and not least of all in The Netherlands. As mentioned, two of

the cases concern proposals from before the LT, and two were published when the LT

had already become operational. Second, a division in case selection along policy

fields is interesting in the aspect of being able to compare which influences come to

the fore within the process from different specialised committees and third parties.

Included amongst those are Justice & Home Affairs, Health & Safety, Immigration &

Asylum, Social Affairs and Agriculture. Third, a division is made in the case selection

along the size of inherent consequences on financial level, the degree of technicality

and the salience of the proposals. With regard to the first criteria, it is expected that

the EWS being operational has the effect of an enhanced scrutiny involvement by the

Tweede Kamer. On the policy field division, it is still quite hard to provide hypotheses

that take into account previous observations, as little have been made so far, so it is to

be seen if any clear differences can be pointed out in the process. Under the

circumstance of a salient topic of a proposal, the expectation is that individual MPs

are more willing to get involved in the matter, which enhances the scrutiny process.

The same goes for proposals with relatively large financial consequences. For the

proposals with a high degree of technicality, the contrary is expected: investing time

in the scrutiny of very complex and specialised matters is likely to be discouraging to

28

MPs, taking into account that political incentives compel them to as much as possible

provide short and transparent feedback towards issues that interest the electorate

and media. Furthermore, one would expect that those issues are more likely to be

discussed in the AOs (Algemeen Overleg, temporary general meetings) of the

specialised committees, and less in plenary meetings. In the period until 2009, from

which two proposals are selected for case study, the Eerste and Tweede Kamer still

worked together on subsidiarity checks, but in considering their actual independent

scrutiny powers together with the fact that only a very small number of cases is

considered exclusively by the EK without any scrutiny activity by the TK, one can say

the EK scrutiny activities have become more complementary to those of the TK. I

hypothesise then, that in case the Eerste Kamer chooses to participate in scrutiny on

EU proposals, it will be more likely to result in a negative judgement on subsidiarity.

It should be noted that in the research discussed above, my investigation comes

closest to the practices followed by Sprungk and Neuhold & De Ruiter, as the main

objective is to give an indication of the (change in) scrutiny practices on European

issues in the NP. The dependant variable in my investigation will be thus, similarly to

those, the scrutiny on EU affairs on national level. The conceptualisation of this

consists of a scale of sorts with three specific steps: 1) the information obtained by

parliamentarians, 2) which is processed and followed up and 3) the use of formal

scrutiny rights in practice (Neuhold & De Ruiter, p. 60). In my case, focussing mainly

but not exclusively on the EWS (for example the practice of parliamentary reserve or

the involvement of the Eerste Kamer are additional observations to be made), the

third step of conceptualisation in this research comes down to the issuing of a

negative subsidiarity opinion. A major difference in my research is the fact that it

doesn't focus on comparing two or more NPs on the basis of a certain case. Instead, I

intend to contribute to the existing literature by clarifying the workings of the EWS in

the Dutch parliament based on a comparison of four different EU proposals. The last

sizeable study on scrutiny by EU NPs is from 2001 (Maurer and Wessels) so dates

back already thirteen years, and it is safe to say that a lot of political circumstances

have changed since then, especially considering the role of NPs. Through this limited

study I hope to contribute a building block on such a large-scale evaluation of

parliamentary affairs in the EU, since I certainly expect that such a common effort

will develop over the years to come. An important first step is the assessment of the

29

institutionalisation of the NPs scrutiny powers in the LT, which thus forms the

independent variable in this study, in an effort to provide possible explanations about

the effect of the formal measure on the conduct of parliamentary scrutiny in the

Dutch NP, to start with.

Also the 'democratic deficit' discussion inevitably touches upon this research; The

study could open the possibility of gaining a better insight in the renewed powers of

national parliament as the most direct democratic representative of EU citizens, and

what this means for the workings on the European decision-making process.

Data on issues for parliamentary oversight will be drawn from the Dutch national

parliament's records or from the database system IPEX. As can be seen in Table 1,

the cases selected have quite a differing rate of feedback from the NPs, ranging from

the involvement of 20 to 33 national chambers.

2.3 Motivation

With the research on the above-mentioned questions I hope to contribute to a better

understanding of the current role of national parliaments of member states in the EU

decision-making mechanisms. To show how the Dutch national parliament adapts to

the EU-wide measures, could also mean to contribute to the mentioned theories

about (parts of) the Union. The EU is still widely perceived as an untransparent

polity, and the wider public still does not understand its workings or realizes how far

the political reality has come to form a part of the lives of European citizens. Since

national parliaments are still considered the main representatives of the European

citizens, a useful contribution to understanding its role in the European polity could

make some difference in this lack of a clear understanding. Following the 'democratic

deficit' discussion over the last decade (see for example Moravscik 2002, Follesdal &

Hix 2006), the way we understand the role of national parliaments as the main direct

representative political body of the EU citizens, is of great importance for a fair

evaluation of the (un)democratic perception of the EU. The EWS for the first time

gives national parliaments an institutional power to directly interfere in the EU

legislative process, and since the mechanism has been introduced quite recently, one

should be cautious to draw premature conclusions. However, it is of importance to

30

make a start with the evaluation of its effects on the national level, as little theory has

been developed as yet on the substance.

In the existing literature about the topic, the term 'europeanisation' has been used in

several ways, sometimes with big differences in emphasis (legal, cultural) and mostly

focused on the 'downloading' of rules from the European polity into national and sub-

national spheres. The clearest definition (for my purposes at least) comes from Hix

and Goetz (2000): 'a process of change in national institutional and policy practices

that can be attributed to European integration.' Because the Treaty of Lisbon is yet

another major building block of the European Union polity that might impact the

parliamentary workings of its member states. Bergman (1997) states as a result from

his comparison of national parliaments in the EU, that there is a correlation between

the strength of EU scrutiny mechanisms within parliaments and the size of EU-

scepticism in the national population. Taking into account the widely perceived

recent politicisation of EU issues (democratic deficit, financial crisis, Euro-zone

tribulations etc.), taken together with the increased formal power of the NPs, I would

expect an increase in the debates in parliament that directly concern subsidiarity

issues.

31

32

Table 1: Subsidiarity Issues Dutch Parliament (IPEX)

File code #Chmbrs Involve- Negative

+ (Year) Type of Policy area/ involved ment Dutch opinion

Summarised EU proposal proposal Legislation Procedure type in IPEX Chambers on subsid.

Proposal for a Council regulation amending Regulation (EC) CNS/ Justice and Home Affairs/ EK (Senate) TGCS*:

No 2201/2003 as regards jurisdiction and introducing rules 2006/ Regulation Consultation 28 +TK (House (=EK+TK)

concerning applicable law in Matrimonial Matters 0135 of Reps.) Yes

Proposal Fight against terrorism: identification, designation CNS/ Justice and Home Affairs/ TGCS:

and protection of European Critical Infrastructures ECI 2006/ Directive Consultation 14 EK + TK Yes

0276

Proposal on Education, Research and Innovation: COD/ Culture, Education/ TGCS:

establishing the European Institute of Technology 2006/ Regulation Codecision 19 EK + TK Yes

0197

NLE/ Competitiveness/ TGCS:

European Private Company (SPE) 2008/ Regulation Non-legislative enactment 21 EK + TK Yes

0130

Proposal for a Directive of the European Parliament and COD/ Consumer rights/ EK: No

the Council on Consumer Rights 2008/ Directive Codecision 24 EK + TK TK: Yes

0196

Proposal for a Council Decision on a Critical Infrastructure COD Justice and Home Affairs/ EK: YesWarning Information Network (CIWIN) 2008/ Decision Codecision 12 EK + TK TK: No

0200

Proposal for a Directive of the European Parliament and COD/ Transport, Telecom and EK: No

Council on the Energy Performance of Buildings 2008/ Directive Energy / Codecision 21 EK + TK TK: Yes

0223

Proposal for the Principle of Equal Treatment between APP/ Employment and Social TGCS:

Persons irrespective of religion or belief, disability, age or 2008/ Directive Affairs /Consent procedure 28 EK + TK Yes

sexual orientation 0140

Proposal on Standards of Quality and Safety of Human COD/ Health/ EK: Yes

Organs intended for transplantation 2008/ Directive Codecision 33 EK+ TK TK: Yes

0238

Proposal on the Application of Patients' Rights in COD/ Health/ EK: No

Cross-Border Healthcare 2008/ Directive Codecision 25 EK + TK TK: No

0142

Proposal on Food Distribution to the most deprived COD/ Agriculture, Fisheries and TGCS:

persons in the Community 2008/ Regulation Food / Codecision 20 EK + TK Yes

0183

European Systemic Risk Board (ESRB): establishment; COD/ Economic and Financial

macro-prudential oversight of the financial system 2009/ Regulation Affairs / Codecision 17 TK No

140

COD/ Economic and Financial

2009/ Regulation Affairs / Codecision 17 TK No

0142

COD/ Economic and Financial

Occupational Pensions Authority 2009/ Regulation Affairs / Codecision 16 TK No

0143

Proposal on establishing a European Securities and COD/ Economic and Financial

Markets Authority 2009/ Regulation Affairs / Codecision 16 TK No

0144

Proposal framework decision Combating sexual abuse, CNS/ Justice and Home Affairs/ TGCS:

sexual exploitation of children and child pornography 2009/ Decision Consultation 25 EK + TK Yes

(repealing Framework Decision 2004/68/JHA) 0049

Proposal for Council regulation on the Statute for a

Proposal for establishing a European Banking Authority

Proposal on Establishing a European Insurance and

33

Proposal on Prospectus of Securities: offer to the public, COD/ Internal Market/

Trading and Harmonisation of transparency requirements 2009/ Directive Codecision 15 TK No

0132

COM/ Economic and Financial TGCS:

on Parental Leave concluded by BusinessEurope, 2009/ Directive Affairs / Codecision 19 EK + TK No

UEAPME, CEEP and ETUC repealing Directive 96/34/EC 0410

Proposal on Preventing and combating trafficking in COD/ Justice and Home Affairs/ TGCS:

human beings, and protecting victims, repealing 2010/ Directive Codecision 20 EK + TK No

Framework Decision 2002/629/JHA 0065

Proposal on the Conditions of Entry and Residence of COD/ Justice and Home Affairs/ EK: Yes

third-country nationals for the purposes of 2010/ Directive Employment and Social 24 EK + TK TK: Yes

Seasonal Employment 0210 Affairs / Codecision

Proposal on the European Network and Information COD/ Transport, Telecom and

Security Agency (ENISA): further development 2010/ Regulation Energy / Codecision 17 TK No

0275

Proposal on jurisdiction, recognition and enforcement of COD/ Justice and Home Affairs/ EK: Yes

judgments in civil and commercial matters 2010/ Regulation Codecision 19 EK + TK TK: Yes

(Recast 'Brussels-I') 0383

Proposal for a Common Consolidated Corporate Tax Base CNS/ Economic and Financial

(CCCTB) 2011/ Directive Affairs / Consultation 26 TK Yes

0058

Proposal on Judicial cooperation in civil matters: CNS/ Justice and Home Affairs/

jurisdiction, applicable law and recognition and enforcement 2011/ Regulation Consultation 23 EK No

of decisions in matters of matrimonial property regimes 0059

Proposal on Border control: common rules on temporary COD/ Justice and Home Affairs/ EK + TK:

reintroduction of border control at internal borders in 2011/ Regulation Codecision 25 EK + TK Yes

exceptional circumstances 0242

Proposal on the European Globalisation Adjustment Fund COD/ Employment, Social pol., EK + TK:

(EGF) 2014-2020 2011/ Regulation Health, Consumer Affairs/ 23 EK + TK Yes

0269 Codecision

Proposal on Alternative dispute resolution for consumer COD/ Competitiveness/

disputes 2011/ Directive Codecision 19 EK Yes

0373

Proposal for Online dispute resolution for consumer COD/ Competitiveness/

disputes 2011/ Regulation Codecision 16 EK Yes

0374

Proposal on Noise-related operating restrictions at Union COD/ Transport, Telecom and EK: No

airports: rules and procedures 2011/ Regulation Energy / Codecision 19 EK + TK TK: Yes

0398

Proposal on the enforcement of Directive 96/71/EC COD/ Employment, Social pol.,

concerning the posting of workers in the framework of the 2012/ Directive Health, Consumer Affairs/ 25 EK No

provision of services 0061 Codecision

Proposal on Periodic roadworthiness tests for motor COD/ Transport, Telecom and EK: Yes

vehicles and their trailers. 'Roadworthiness package' 2012/ Regulation Energy / Codecision 17 EK + TK TK: Yes

(aka 'European APK' in Dutch) 0184

Proposal on Registration documents for vehicles: COD/ Transport, Telecom and EK: Yes

Roadworthiness package' 2012/ Directive Energy / Codecision 15 EK + TK TK: Yes

0185

Proposal on Technical roadside inspection of the COD/ Transport, Telecom and EK: Yes

roadworthiness of commercial vehicles circulating in the 2012/ Regulation Energy / Codecision 16 EK + TK TK: Yes

Union. 'Roadworthiness package' 0186

Proposal on Freedom of establishment and freedom to APP/ Employment, Social pol.,

provide services: right to take collective action 2012/ Regulation Health, Consumer Affairs/ 30 TK Yes

0064 Consent procedure

*TGCS (2006-2009): In case a common letter was sent back to the European Commission.

In case both Chambers have reacted independently with a letter on subsidiarity judgements, it is mentioned apart.

Proposal to implement the revised Framework Agreement

Chapter 3

Practices of parliamentary scrutiny in the EU setting

In this chapter I will have a look at the practical ramifications of parliamentary

scrutiny in the EU setting. My aim being an evaluation of the practice of Dutch

parliament on EU dossiers, a beginning should be made from the study of the

European dimension; before moving on to the specific dealings in the case of the

Dutch parliament on the topic, in this chapter I will shortly review the development

of the European scrutiny process, and in specific the conduct of the subsidiarity

check. Despite the relatively short period of its existence, there has been a thriving

discussion in the academic realm to which scholars from Law, Politics and Public

Administration have contributed over the last few years.

The EU does not have a power structure mirroring directly the exact requirements of

what is seen in most modern democracies as a fully-fledged, democratically

legitimate decision-making structure. Because the European Union has not been

designed to be a federal government (which hasn't been politically achievable, nor

has this been desired by a large majority), intergovernmental structures have largely

stayed prevalent, maybe with the exception of the European Court of Justice, which

shows strikingly supranational traits in overruling any national jurisdiction. In other

words, national governments of EU member states do not relate hierarchically to a

central EU 'government' like national courts have appeared to do to the ECJ, or

individual member states under their rulings for that matter. Thus the idea of a

federal Europe is generally accepted not to be reflected in the current political

system, in which the European Parliament (EP) does not have the formal powers that

are traditionally embedded in the chambers representing national constituencies.

This is mainly, but not exclusively, because of the fact that they lack the formal right

of initiative.

This very common reasoning leads to the assumption that the national parliaments

can and should protect a degree of democratic legitimacy within the multi-level

governance structure of the Union. This notion has further strengthened since the

executive branches of national representations have taken the leading role in

34

European politics: beyond the necessity of cross-border cooperation, which started

off the integration process, has come the acceptance of binding rules to manage more

effective and efficient European-wide processes to cope with the challenges of

globalization and transgression of policy problems. While the Commission and the

European Council of Ministers ('Council' from here on) have shown to come up with a

large number of decisions (rules, regulations, directives etcetera), the European

Parliament, first elected directly in 1979, has gained a larger share in the decision-

making powers over the years as a result of its assertiveness in signalling the

perceived lack of direct democracy in Europe. Still, within the intergovernmental

setting even the EP being a direct democratic representative body, could not, and

probably for a considerable period of time to come, will not be as pivotal as a national

parliament in domestic decision-making. The exclusive right of initiative in EU

legislation rests with the Commission and Council, and although this fact has not

changed, we see emerging patterns of horizontal cooperation; on EU level in the 'Co-

decision' procedure (Maurer 2003, pp.227-247), and internally in the EP with

national parliaments and, of specific interest for this investigation, the inter-

parliamentary cooperation to improve the timeliness and awareness of national

parliaments for the possibilities to influence the EU decision-making process. This

increased assertiveness by the EP-NP tandem vis-à-vis the governing bodies (national

cabinets, Council, Commission) has been largely responsible for the initiation of the

mechanism that I intend to study; the legally entrenched possibility for national

parliamentary scrutiny on Commission proposals and the manner in which, and

number of times, it finds its way to effect a vote by national democratic

representatives in EU member states, and in this case, in the Dutch Chambers.

Although the above-mentioned developments have threatened parliaments in the EU

with a loss of powers to the executive institutions (Commission, national

governments), the newly introduced EWS can be seen as a step towards alleviating

this perceived deparliamentarisation. Although the NPs have always had ways to

scrutinize EU decision making and foremost the role of their national governments in

the process, the introduction of the mechanism could provide for a new institutional

check that should be evaluated closely. As described in the first chapter, the COSAC2

2 COSAC website: http://www.cosac.eu/en/cosac/ The acronym comes from 'Conférence des organes spécialisés dans les affaires communautaires'.

35

is not an official EU institution, but does play a central role in the coordination of the

scrutiny process in NPs.

In the process of parliamentary reserve, a form of scrutiny by the national parliament

on upcoming EU legislation that has been widely adopted from early practice in the

United Kingdom, the government, prior to Council meetings in Brussels, can be

obliged to explain its intended position on certain topics to parliament. Although the

Bundesrat of West Germany was the first parliament to install a European affairs

committee (EAC) in 1957, the proper adoption across member states of parliamentary

reserve practices can be first seen among the countries of the first accession round:

UK, Denmark and Ireland, all of which had relatively Eurosceptical electorates and

strong parliaments (O'Brennan & Raunio 2007).

The national parliaments of member states usually have a six to eight-week period

after receiving a European proposal (typically, the selection of dossiers for closer

attention is a task for the EACs and EU support staff of national parliaments) to

indicate that it considers the issue of specific political importance. Thereby it

mandates the government to make a parliamentary scrutiny reservation as a part of

the legislative process to be followed, which means it has to comprehensively inform

and consult the MPs, and a debate in the chamber about the issue is mandatory

before taking any decision on European level through the government representation

in Council.

In many other European Union member states this practice has been adopted,

although the practical execution of scrutiny procedures differs largely from country to

country. The fact though that many parliaments scrutinize their government on EU

issues over the last 20 years, can be traced back to either the above-mentioned

democratic deficit discussion, or the broad expert consensus about the state of NPs,

identified in the title of the largest common study volume of Maurer and Wessels

(2001) that identify the national parliaments as institutional 'victims' of European

integration.3 This assertion, backed by an extensive comparative study on NPs, forms

a solid background of the starting point towards investigations on whether or not, or 3 Maurer, Andreas & Wolfgang Wessels (eds., 2001). National Parliaments on their ways to Europe: Losers or Latecomers? Nomos Verlagsgesellschaft, Baden-Baden. The volume reviews theory and practice, and describes the workings of 15 different national parliaments of MS on EU affairs.

36

better, to what extend, the NPs are developing from 'victims' toward more serious

institutional actors. However, in my research the focus should be on more recent

developments, most importantly the measures taken since the 2009 LT (specifically

the Early Warning Mechanism) to ensure a more assertive role of NPs in the

European decision-making process.

Apparently the argument that NPs, as most direct democratic representatives of the

European citizens, have been improperly integrated in European governance has

taken hold on all levels; the 2006 'Barroso Initiative' promised the commitment to

directly transmit the Commission policy proposals to the NPs, and invited the them

to place comments where necessary concerning the subsidiarity principle. Although

not necessarily resulting in better quality, directly after the Barroso Initiative, a

statistic increase in national parliamentary participation has shown (Jančić 2011). In

the specific case of the Dutch parliament, this also seems to be a valid observation,

according to the Raad van State (State Council, the highest administrative law court

and advisory body of the government).4 The aspect of parliamentary scrutiny on the

basis of the subsidiarity principle in the Barroso Initiative would eventually be

formalized in the Treaty of Lisbon in 2009 in the form of the Early Warning

Mechanism. The Conference of Parliamentary Committees for Union Affairs of

Parliaments of the European Union (COSAC), already established in 1989, had by

then taken up the role of providing a platform for interchange between NPs in the

EU, and became officially mentioned in the Treaties from 1997 on. The COSAC is not

one of the official EU institutions, but functions as a conference of NPs from the

member states with bi-annual meetings in the country holding the EU presidency.

With the then forthcoming LT and the EWM provision, as well as motivated by the

Barroso Initiative, COSAC decided to start of a pilot project of subsidiarity checks

amongst the EU NPs, in which the exchange of practices and opinions was stimulated

and a central database, called IPEX (Interparliamentary Exchange) established to

track the events of opinion-making on the pending EU legislation in NPs. The pilot

project on subsidiarity checks was held from 2005 until 2009. The NPs of the EU

performed eight subsidiarity-checks within this project on issues picked by COSAC

within this period.

4 Website Dutch ministry of foreign affairs http://www.minbuza.nl/ecer/verdrag-van-lissabon/repertorium-verdrag-van-lissabon/grondwettelijke-aspecten/nationale-parlementaire-betrokkenheid-bij-besluitvorming.html

37

Since the Treaty of Lisbon came into force in 2009, COSAC “may submit any

contribution it deems appropriate for the attention of the European Parliament, the

Council and the Commission. The Conference shall in addition promote the exchange

of information and best practice between national Parliaments and the European

Parliament, including their special committees.” (COSAC website:

http://www.cosac.eu/en/cosac). Furthermore, the Treaty of Lisbon provided NPs

with the EWS in which they can pre-decide on compatibility with the subsidiarity

principle of Commission proposals. In short, subsidiarity means that 'the EU will not

act, unless European measures demonstrate clear added value, relative to national

measures. Proportionality means that no legislation will be initiated if less far-

reaching options are available.'5 Although under the EWS, NPs can object to EU

initiatives exclusively on the basis of a breach in the principle of subsidiarity, it is

often problematic to precisely judge the bandwidth of the concept of subsidiarity,

which also can be considered to somewhat widen the range of possibilities for the

NPs. Philipp Kiiver, a law scholar specialized in NPs within the EU, points out three

good reasons for this in the context of the interparliamentary cooperation on scrutiny

of EU measures:

“(...) there are possibilities to adopt a somewhat broader interpretation of the

subsidiarity check without breaching the letter of the Protocol. First, it is

absolutely legitimate to declare an insufficient justification a procedural

breach of the principle of subsidiarity, in particular of Article 5 of the

Protocol (…) which after all includes the initiator's duty to justify. Second,

also legality or competence can be brought under the subsidiarity check. (…)

Third, even under a subsidiarity heading a proposal can go 'too far'. (…)

Subsidiarity may run out, as it were, when it comes to total harmonization.

In other words, subsidiarity is not a binary principle for certain policy

sectors but must be applied to proposals, and provisions within proposals,

on a case-by-case basis. This may also be reflected in reasoned opinions.”

(Kiiver 2011, pp.11-12, emphasis added).

As we will see later, the subsidiarity principle can indeed hardly be considered a strict

5 IPEX online: http://www.ipex.eu/IPEXL-WEB/parliaments/institution/nltwe.do

38

legal or technical measure to which specialists weigh off a certain legislative proposal,

but rather has an undeniable and substantial political dimension.

Figure 1. Model of the handling of and scrutiny on Commission proposals in EU

context

39

Chapter 4

Parliamentary scrutiny on EU proposals in the Tweede Kamer

As we have seen in the first chapter, parliamentary scrutiny by NPs on EU topics is

not a new phenomenon, but relatively recent developments have promoted the

coordination amongst NPs to stimulate the practice. The new EWS has come up to

enhance the control by national legislatures on European decision-making as a

formal instrument embedded in the latest Treaty. To get an idea about the practices

of parliamentary scrutiny in The Netherlands, I will briefly take a look at the Dutch

experiences on this topic in this chapter.

In the previous chapter we have noted an increased focus on EU policy making by

parliaments, both national and regional (where existing) since the mid-90's

specifically, and this counts for the Dutch Chambers as well; in fact, they have been

amongst the most active scrutinizers since then (see for example Maurer & Wessels

2001, and Kiiver 2006). The 2002 parliamentary report document “Op tijd is te laat”

(translates as “in time is too late”) recommended an even tighter emphasis on the

scrutiny of EU policy making, and especially the possible profit for the national

legislature to be aware of upcoming plans on EU-level as soon as can be reliably

provided.6 The recommendations of this report have led to the deployment of a

permanent representative of the Dutch 'Staten Generaal' (Senate and Lower

Chamber) in Brussels, and a few years later, the instalment of a permanent advisory

body of four civil servants specializing in EU affairs for the administrative support

and coordination of the MPs in the European Affairs Committee (EAC).7

4.1 Instruments for parliamentary oversight on EU proposals and recent

observations on the practice of scrutiny

The Dutch EAC of the Tweede Kamer, the Vaste Commissie EU Zaken (the standing

committee for European Affairs) is responsible for organizing and coordinating the

6 http://www.eerstekamer.nl/eu/behandeling/20020411/rapport_van_baalen/f=/vglllop9fey2.pdf

7 Rapport 'Bovenop Europa': http://www.tweedekamer.nl/images/Bovenop_Europa_118-219490.pdf, p.2

40

input of EU-related information towards the concerning policy area committees at

national level. One important source of information have for long been the so-called

BNC-fiches (files on new Commission proposals) for review. The BNC-files are issued

by the Dutch government to inform parliament on proposed EU legislation, as well as

to give an initial appreciation of the cabinet's standpoints on the issue. Over the last

two decades, this has been the central instrument, but since 2006, when the NPs

started receiving the Commission proposals directly from Brussels, it has become less

central but remains relevant in the process as the main indicator of the government

stance on the debated issues in parliament (Kester & Van Keulen 2011, p. 305).

However, there are several instruments used in parliament to inform, coordinate and

further process information on EU proposals. In many cases the EAC works together

on these with specialized policy field committees. In the following section I will give a

short overview of those instruments.

The earliest stage of the scrutiny process is initiated after the yearly announcement of

the Commission Legislative and Work Program (CLWP), which is an overview given

by the European Commission on its plans for the year to come. The EAC discusses

this program with the parliamentary under-secretary of European Affairs, evaluates

the government's initial position on it, and discusses the list of priorities that

parliament draws up to indicate which future EU legislation proposals it finds

important or relevant enough to put under closer scrutiny, at least in the first

instance. Coordination by the EAC provides the specialized standing committees with

the support to investigate the part of the CLWP relevant to their policy fields. This

structural procedure based on early evaluation of the CLWP is practised since 2007,

and since the CLWP for 2010, the Tweede Kamer holds a plenary debate in which a

definitive integrated list of all priorities is determined, also containing indications on

which proposals a parliamentary reserve and/or subsidiarity checks are planned. A

new element in this process, practised since 2010, is the possibility for the EAC

together with the 'Commissie voor Europese Samenwerkingsorganisaties' (committee

for European cooperative organizations) of the Eerste Kamer, which can be seen as

the Dutch Senate's equivalent to the EAC, to hold a debate with the European

Commissioner for inter-institutional relations and administration (at the moment the

office is held by Maroš Šefcovic). Also since 2010, each year an individual

Commissioner is invited to speak before parliament and give further motivation and

41

explanation on the CWLP. For example Dutch Commissioner Neelie Kroes was

invited by the EAC and gave acte-de-presence in her capacity as Commission

member, an event that attracted much media attention, and a full plenary and public

gallery. These are all measures used by the EAC to increase the 'European

consciousness' of MPs, who are more likely willing to get involved in EU issues in

case the public eye turns towards those.

Another possibility for early involvement is the cooperative input into the

Commission's white or green papers, early publications of intended legislation

proposals. Those documents are free to all parties to comment on, and usually the

Dutch government does, but since the last five years, the parliament also tries to put

up a more comprehensive effort to formulate a common position, and if divergent

from the government position, to try and convince government to adopt (certain

parts of) the common position. Since 2007, there has been parliamentary treatment

of all forty white and green papers, which in the past only amounted to about one-

third of all.8 From my own investigation in the IPEX system, there are a number of

fifty-eight files on European issues that the Eerste and Tweede Kamer have uploaded

as feedback under the heading 'important information to exchange' (actual legislative

proposals as well as white and green papers and Commission communications and

reports). This is from a total number of feedback files of 351 for the Tweede Kamer,

and 394 for the Eerste Kamer (See Table 2). Thirty-four of these files were actual

proposals on which the subsidiarity-check was performed by either EK or TK, or both

of the Chambers (Table 3). In the next section this will be further discussed.

The Dutch parliament is also able to utilize, although only since 2010, the instrument

of 'parliamentary reserve'. Since the Lisbon Treaty, within two months after

publication of a Commission legislative proposal, the NP can request government to

make such a reserve, which means that within a period of twelve weeks the proposal

should be discussed in a plenary debate, in which the Tweede Kamer and government

should come to agree on commitments about the further strategy that government

will take up in the European trajectory on the dossier (in practice mainly on the

Council meetings), as well as the way in which it will provide parliament the

information on the pending negotiations process. Once these commitments have 8 Rapport 'Bovenop Europa', pp. 4-5

42

been agreed upon, the reserve is lifted and the minister in question is supposed to

follow the agreements in the Council negotiations and the feedback afterwards to

parliament. This instrument has been put to practice three times in 2010, seven times

in 2011 and for 2012, twelve parliamentary reserves have been made already on the

basis of the CLWP.9 Unlike some other EU countries, this instrument does not in The

Netherlands amount to a strict mandating system, where government requires a

parliamentary mandate prior to a Council meeting; in most cases, the eight-week

period of the procedure between parliament and government precedes the placement

on the Council preparatory body (Kester & Van Keulen, p. 307).

One of the most important criteria that EU legislation has to comply with (and the

only ground on which NPs can object within the EWM) is the principle of

subsidiarity. In short, subsidiarity means that 'The EU will not act, unless European

measures demonstrate clear added value, relative to national measures.

Proportionality means that no legislation will be initiated if less far-reaching options

are available.'10 The Dutch parliament has about a ten-year experience with

subsidiarity checks by now. Between 2006 and 2009 there has been a temporary

specialised committee for this, established in the context of a pilot project on EU-

wide scrutiny by NPs as promoted by COSAC, consisting of members from both

Chambers, the 'Tijdelijke Gemengde Commissie Subsidiariteitstoets (TGCS).11 The

official notion of subsidiarity as found in parliamentary documents in the

Netherlands states that Community action is only justified if it complies with both the

following aspects: 1. The objective of the proposed action cannot be sufficiently

achieved by Member States within the framework of their national constitutional

system and 2. The objective can thus preferably be achieved by the Union.12 From

2005, anticipating the constructing of the Draft Treaty that eventually led to the LT,

this common committee provided for the Dutch contribution to the pilot project on

subsidiarity checks until 2009, when the Eerste Kamer ended the cooperation when

the LT went operational. This was mostly for the reason to be more 'complementary'

to the Tweede Kamer scrutiny activities (Kester & Van Keulen, p. 304).

9 Kamerstuk 22112, nr. 136310 IPEX online: http://www.ipex.eu/IPEXL-WEB/parliaments/institution/nltwe.do11 http://www.eerstekamer.nl/eu/thema/tijdelijke_gemengde_commissie12 See for example Kamerstuk (parliamentary document) 31805, nr. 8, p. 2, 2008-2009

43

The article 'De Tweedekamermethode: Versterkte parlementaire invloed op Europese

besluitvorming' (Kester & Van Keulen, 2011) explains the (new) working methods of

the Tweede Kamer on the scrutiny of EU affairs, illustrated by the example of three

cases of proposed legislation. Two characteristics play a central role in their

explanation: the 'selective application of a mixed instumentarium', which basically

means that both subsidiarity checks and parliamentary reserves are used, and the

'decentralised working method', which means that the control on European policy

and lawmaking is not predominantly dealt with by the spokespersons of EU affairs of

the political parties, but more so by the representatives of the specialised committees,

thus providing for a broader participation in EU affairs amongst the MPs.

Since the Treaty of Lisbon came into force in December 2009, the 'early warning

mechanism' or 'early warning system' (EWM/EWS) has been in place for the national

parliaments of member states, in which the parliaments can place provisions on

Commission proposals on the grounds of subsidiarity. This national parliaments'

measure is also known as the 'Yellow Card / Orange Card' procedure; in case one-

third of the national parliaments objects to a certain Commission proposal on the

grounds of subsidiarity, a 'yellow card' is issued to the Commission, who has to

reconsider the proposal. For subjects in the field of the Home Affairs and Justice

departments, the threshold is one-fourth. The Commission can then amend or

withdraw the proposal, but without obligation to do so. In case half of the

parliaments object, an 'Orange Card' is issued, and if either the EP or Council shares

the opinion, the proposal will be withdrawn.13 In bicameral systems, both upper and

lower houses have one vote, and the unicameral NPs' votes count for two, which

means in the current EU-27 a total of fifty-four votes. The EWM amounts to an

institutional innovation that seeks both to alleviate the alleged democratic legitimacy

shortcomings as well as installing a subsidiarity control mechanism without the need

to create a whole new institution in itself (Cooper 2011, pp. 6-7).

Before the above-mentioned mechanism was incorporated in the Treaties, the

national parliament naturally kept itself informed about EU proposals (and has

already a ten-year experience with the subsidiarity testing), but a general tendency

can be detected that Dutch parliamentarians have a higher awareness about the 13 Brochure 'Europese besluitvorming in de Tweede Kamer', september 2011

44

possibilities to exert influence on European decision-making, according to a report to

the Tweede Kamer that evaluates the (new) working procedures on European Affairs

as coordinated by the EU-staff of the Vaste Kamercommissie between 2007 and

2011.14 To be reliant on the traditional 'BNC-files' (Beoordeling Nieuwe

Commissievoorstellen) issued by government, meant to depend on the intentions and

timing by the government, and threatened to reduce the scrutiny function of the

Tweede Kamer. Since 2007 however, it has been selecting themes from the yearly

Commission Legislative and Work Program for closer consideration. Since 2009 it

also chooses specific EU-related instruments in the planning of how to judge the

Commission initiatives. One of the questions in point thus is whether this leads to an

increase in the amount of EU-related issues being directly observed by parliament.

4.2 Statistics from IPEX regarding subsidiarity-checks by the Staten

Generaal

After shortly evaluating the current instruments and procedures in use for the

parliamentary oversight on EU affairs in the Dutch Staten Generaal, I will now turn

towards the more specific aspect of this research on the use of (mainly) the

subsidiarity check by parliament, in order to give a first notion on the current

proportions of the measure. Some numbers will be drawn up on the frequencies of

use concerning the instrument, and the conclusions (positive or negative, or written

concerns on subsidiarity) that parliament draws up after the use of it. As mentioned,

the EU NPs have been using the IPEX database for the exchange on any kind of

activity undertaken in the sense of keeping track of, and providing feedback on,

European legislative proposals and other initiatives initiated by and discussed across

the Union.

The first collection of numbers drawn from the IPEX database can give a quick

overview on the activity by the Eerste Kamer (Senate) and Tweede Kamer (House of

Representatives) on EU related issues (See Table 2). The 'important information to

exchange' header implies reactions of the parliament on issues relating to

proportionality as well as parliamentary concerns relating to subsidiarity which are

discovered after the eight week period referred to in the Lisbon Treaty. This also 14 Rapport 'Bovenop Europa', p. 7

45

includes comments sent to the Commission with regard to the informal political

dialogue or for other important reasons defined by a national Parliament (for

example a specific political concern a parliament may have on a particular issue). The

'subsidiarity issues' header means that the Chambers have made reasoned concerns

about subsidiarity but the issue to be discussed internally. When a reasoned opinion

has been issued to the Commission, the parliament has decided to make an official

objection. As can be concluded from the total overview underneath, only eleven

actual subsidiarity objections have been shared through IPEX over the last two years.

Just a limited number of the total amount of exchanged parliamentary information is

about manifest subsidiarity objections, and even a slight decline can be seen in the

number of those since 2008, the year previous of the introduction of the Lisbon

Treaty and thus the EWS going operational. This is an observation shared with the

report 'Bovenop Europa' and the Kester & Van Keulen article observing a tendency in

the Dutch parliament that subsidiarity tests are used less almost every year, but the

parliamentary scrutiny reservation (parlementair voorbehoud) option was used more

every year. A possible explanation for this is the less technical/juridical character,

plus a better and timelier exchange of information between the parliament (often

through its expert commissions), its permanent representative in Brussels and the

EU-staff. Also, on a case-to-case basis considerations are made within the specialised

committees whether the reserve or the subsidiarity check is used, or both. The former

is more focussed on control and oversight on government (and thus expected to take

place more often in a minority coalition such as the VVD-CDA between 2010 and

2012) and thus more nationally oriented, whereas the subsidiarity-check has the

potential of a direct effect on EU level, but if not (as in almost all cases until now) can

also serve to present ministers a clear preference in the name of the overall

parliament before the negotiations in Council.

During the COSAC project to stimulate the subsidiary checks in the EU NPs in

anticipation of the LT, which took place between 2005 and 2009, this instrument has

seen an increase in application in the Dutch parliament, but has reached only a

limited number, and since 2009 has been in decline; in 2010 seven were performed

and in 2011 only three (see statistics from IPEX below, Tables 2-4). Instead, we see

an increase in the number of reserves on the basis of the CWLP that parliament has

placed over the last years. This shift could also be the result of the limited amount of

46

subsidiarity objections issued by NPs during the 'pilot' period, where a maximum of

no more than 13 votes (of the 18 required for the yellow card) were recorded during

the scrutiny of a single issue by the EU's NPs. However, after adding the numbers for

2012, its shows differently; on the basis of the CWLP no less than twelve subsidiarity

checks have been planned, and as we will see from one of the case studies, one such

check reached the threshold for the first 'yellow card'. As mentioned, shifts in the use

of the subsidiarity-check and parliamentary reserve could also be explained by the

divisions in parliament and the minority-based government or other internal factors;

in the case-study section of this research their will be a closer focus on the

circumstances in which the subsidiarity issues under study were chosen and handled.

First I have undertaken the effort to gather some statistics in order to put the

subsidiarity-check and its results in perspective since the introduction of the EWS.

For the information exchange via IPEX on EU issues as treated by the EU's NPs, the

system relies on the systematic usage and input by the EACs of each member state. As

we will see later, there are some issues that are not registered in the system under the

appropriate header, although at least for the Dutch parliament, until now I have been

able to find every single subsidiarity issue anyway, but needed to obtain the

information on them from other sources, like interviews with EAC staff members,

scrutiny lists from the Tweede Kamer and Europapoort, in which the e-dossiers from

47

Table 2: IPEX documents

2006 2007 2008 2009 2010 2011 2012Tweede Kamer (House of representatives)Total 10 61 185 38 36 40 22'Important information to exchange' 1 1 7 9 13 17 7'Subsidiarity issues' 1 0 8 7 4 2 1Reasoned opinion (on subsidiarity objections) 1 5 4

Eerste Kamer (Senate)Total 180 46 70 14 21 70 30Important information to exchange' 6 14 12 7 10 7 7'Subsidiarity issues' 3 2 6 2 3 1 0Reasoned opinion (on subsidiarity objections) 1 0 3 5 4

the Eerste Kamer that are kept very clearly and systematically. If we look at the year

of 2011 for example, if one will look under the header 'subsidiarity issues' plus 'Dutch

House of Representatives', two proposals are mentioned. Not only were there in fact

four proposals that underwent the subsidiarity check in the Tweede Kamer that year,

also the two issues that result from the IPEX inquiry are both from 2008 proposals

(one was adopted though in 2011, but the other in 2012). Although all issues are

documented in IPEX, in order to come to a systematic overview, until now it has been

necessary to look into all sixty-plus documents from both Eerste and Tweede Kamer

that are marked under 'important information to exchange'. After sifting out the

communications, reports and green and white books, this resulted in an overview of

the actual proposals that have undergone subsidiarity-checks in the Dutch

parliament, both those positively as those negatively judged on this criterion (see

Table 1). Subsequently the numbers from IPEX and factual subsidiarity-checks in the

Dutch parliament divided by the Eerste and Tweede Kamer are put into perspective

in Table 3, added to which is an additional division in Table 4, before and after the LT

being operational, on the priority dossiers and subsidiarity issues that have been

handled by both Chambers.

48

Table 3: Documents exchanged through IPEX 2006-2012 and subsidiarity checks performed in practrice

Tweede Kamer (House of representatives) Percentage of totalTotal number of files 393'Important information to exchange' 55 13,99'Subsidiarity issues' 23 5,85Subsidiarity checks (in practice) 30 7,63Negative subsidiarity opinion 20 5,09

Eerste Kamer (Senate)Total number of files 431'Important information to exchange' 63 14,62'Subsidiarity issues' 17 3,94Subsidiarity checks (in practice) 26 6,03Negative subsidiarity opinion 16 3,71

One of the developments that first draws attention from the previous tables, is not so

much that the practice of subsidiarity-check has increased since the LT, but more the

relative focus on the check by parliament out of the total number of files that are

deemed important to exchange. The decrease of those priority dossiers plus about the

same number of dossiers that end up being checked on subsidiarity, indicate that the

parliamentary committees become more selective in picking out EU dossiers (as the

total number of Commission proposals published has been about stable over the last

years). A slight decrease in the use of the subsidiarity check in absolute numbers

post-LT can be explained by the introduction of the instrument of parliamentary

reserve since that same year. As became clear in the various interviews, committees

can decide some proposal being noted as critical, although no breach in subsidiarity

is expected to be found. This is a reason to closely keep track of the minister and

his/her meetings in Council by using a parliamentary reserve. It also happens that

parliament does not wish to block (parts) of a proposal but does finds it of such

importance that the instrument is warranted.

Both the relative increase in subsidiarity checks and those issues under scrutiny that

result in negative subsidiarity opinions are quite significant, albeit based on a small-n

of cases available thus far. This goes for both Eerste and Tweede Kamer, and on

average the percentage of checks from priorities exchanged has been about 10% since

49

Table 4: Priorities and subsidiarity-checks before and after the Lisbon Treaty (2006-2009 and 2010-2012)

Pre-LT Post-LT Post-LTTweede Kamer (House of representatives) % of total % of total Increase factorTotal # of files exchanged through IPEX 294 98'Important information to exchange' 18 6,12 37 37,76 6,2'Subsidiarity issues' 16 5,44 7 7,14 1,3Subsidiarity checks (in practice) 19 6,46 11 11,22 1,7Negative subsidiarity opinion 10 3,4 10 10,2 3

Eerste Kamer (Senate)Total # of files exchanged through IPEX 310 121'Important information to exchange' 39 12,58 24 19,83 1,6'Subsidiarity issues' 13 4,19 4 3,31 -0,8Subsidiarity checks (in practice) 14 4,52 12 9,92 2,2Negative subsidiarity opinion 10 3,23 7 5,79 1,8

the LT, which is almost the double from before. For the Senate, the share of cases that

result in a reasoned opinion on a subsidiarity breach about doubles post-LT, and even

triples for the House of Representatives.

With the proposals under case study highlighted in the Kester & Van Keulen article

(all three cases are from the realm of social policy) one of the observations is a

politicisation of EU issues; the enhanced possibility for party members to take early

standpoints on proposed EU legislation has been developing towards more

differentiated stances on substantive grounds from party to party, whereas formerly

the focus was more on national against European interests (p. 312). This observation

indeed implies the Europeanisation of national politics. Moreover, even when the

strict emphasis of scrutiny lies with the principle of subsidiarity, which is often seen

as a more juridical-technical balancing of affairs, it should be underlined that in

practice it is seen often enough to clearly transcend into the political weighing, and

naturally so:

“The components of subsidiarity, such as added value of European action

and transnational effects, are also strongly related with political

convictions. The [subsidiarity-] test is allocated at first instance to NPs for

a reason. The Tweede Kamer relies principally on arguments of political

desirability in the evaluation of EU proposals. This includes, albeit not

exclusively, the consideration if the European level is the most proper level

to take action in the issue under question. Contrary to the Raad van State

[State Council, the highest administrative law court and advisory body of

the government] or the Senate, the Tweede Kamer is indeed by nature the

body to politicise Europe; and exactly this was the main objective of the

above-mentioned institutional innovations.” (Kester & Van Keulen, p. 312.

Translated from Dutch)

One aspect of the broader involvement in EU affairs amongst MPs, that is to say a

Europeanisation of Dutch politics, involves an increase in administrative support,

which at the moment still seems to be required especially in the policy fields that have

traditionally a relatively high focus on the national policy-making process in

comparison to their time spent on EU issues (see also: Mastenbroek & Princen 2007).

50

Extending the debates on EU policy from the expert spokespersons to a broader

number of MPs is also a matter for the political parties. The administrative support

can supply the information on the timely notification and knowledge of European

windows of opportunity, but the political interpretation then lies with the party

members. Nonetheless, as various respondents mentioned in the interviews, the

'resources of parliament' play a central role in the scrutiny process. Windows of

opportunity, in the case of parliamentary scrutiny on EU affairs, also exist for interest

groups, but since the period of six to eight weeks is relatively short, it proves difficult

in practice to lobby MPs in a timely manner; according to M. van Keulen as stated in

the interview, the Dutch EAC of the Tweede Kamer is trying to enhance the

awareness on this matter, but it is still a fact that most of the lobbying efforts are

focussed on the Brussels institutions or the permanent representatives. This is of

course a not very surprising, as the improved opportunities on scrutiny by NPs

discussed here is a very recent development. To improve the input by interest groups

or third parties in general, the EAC now usually organises round-tables in parliament

within the time span for the subsidiarity-check or parliamentary reserve deadline.

The fact that almost every Commission proposal is announced in the CLWP before its

actual publication, certainly helps facilitate this practice. The other important factor

also explicitly indicated by Van Keulen is the resources of parliament. The

administrative staff of the EAC have grown from four members to twelve over the last

four years. This naturally increases the possibilities to supply individual MPs with

information in order to advance their focus on European issues. This is noted as a

crucial factor, since the political parties' European support is not optimal in any

sense. It is to be seen if the above-mentioned observations will also be noted in the

case-studies on a variety of policy fields, with which I will proceed from here.

51

Figure 2. Model of the handling EU proposals within the Dutch parliament

52

Chapter 5

Four cases under scrutiny in the Dutch Parliament

Apart from the formal mechanisms already described in the previous chapter and the

collection of numbers drawn up about the subsidiarity issues so far, it is of primary

importance for this investigation to see how the dossiers are handled from this point

of view in the Dutch parliament. Therefore I will now look into the process of the

handling of parliamentary scrutiny in the form of four Commission proposals that

were selected for the subsidiarity-check. It will be described as detailed as possible

how the dossiers became selected, how the parliamentary scrutiny took form and

what were the consequences on the decision-making in which a division is made

between the (changing) parliament and government viewpoints and the effects on the

process towards adoption or rejection in Council. As will become clear, some of the

debated issues did not go through smoothly in this respect, as of course can be

expected when a large number of the national representatives show the reasoned

objections on subsidiarity, at times with argumentation along other lines added, such

as proportionality or legal base.

5.1 Proposal on the standards of quality and safety of human organs

intended for transplantation (COD/2008/0238)

The main motivation for the Commission to publish the proposal on the 'Standards of

quality and safety of human organs intended for transplantation' was to facilitate a

certain degree of exchange of organs for transplantation while setting EU wide

standards. There has been a group of seven member states involved in the program of

Eurotransplant, in which an average of about 20 percent of organs were exchanged

cross-border. Also a number of other states participated in the exchange without

being part of the core membership. In order to guarantee the standards of quality in

transnational organ exchange and to reduce black market activity by criminal

organisations, an EU-wide measure was deemed necessary by the Commission.

The upcoming proposal plan was first mentioned in the 2008 CLWP, published

already in October 2007. During this time, the COSAC had only recently begun with

53

their project of common subsidiarity-checks, and the 40th (XL) assembly of COSAC

on 3-4 November 2007 decided to take on this dossier to carry out the third

subsidiarity-check. In first instance, the proposal was only suggested within COSAC

by the Dutch and British national parliamentary representatives and thus did not

seem very high profile. After the postponement of the 'Proposal on the applicable law,

jurisdiction, recognition of decisions and administrative measures in the area of

successions and wills', which was originally selected, the proposal on organ

transplantation was suggested by chairman Lequiller and agreed upon by the other

NPs chairpersons.15 It cannot be traced back in the documentation exactly why the

proposal was then selected. One of the respondents (Ms L. Kurien, British House of

Commons and permanent member of the COSAC Secretariat) stated that it was most

likely because of an advantageous timing of the publishing of the proposal at a

moment in which they knew most NPs could cooperate. The eventual participation

among NPs indeed catches the eye (thirty-three chambers involved, which makes it

one of the proposals most responded to by NPs, see also Table 1).. The first proposal

selected for subsidiarity check within the COSAC was the 'proposal for implementing

the principle of equal treatment between persons irrespective of religion or belief,

disability, age or sexual orientation', which attracted the input of twenty-eight

chambers. Because of these high response rates of the initial 'testing phase' of the

yellow card procedure, we must suspect that it was rather the novelty of the

instrument than the characteristics on salience, costs or technicality which motivated

the participation of NPs. In the case of the organ transplantation proposal, it should

also be noted that a non-legislative cooperation was already in place in the form of a

programme under the auspices of the Council of Europe, and many of the reactions

registered in IPEX from other NPs indicated the doubt if further EU action would be

of added value, if not problemising the current non-binding agreements and

practices.

As a result of the COSAC commitment, in The Netherlands the then-active Tijdelijke

Gemengde Commissie Subsidiariteitstoets (TGCS) singled out the proposal from the

program to recommend the concerning parliamentary committees to conduct a

subsidiarity check. The standing committee on Health, Welfare and Sports (VWS)

15 See bottom section 'Minutes of the meeting of COSAC chairpersons at: http://www.cosac.eu/42france2008/meeting-of-the-chairpersons-of-cosac-6-7-july-2008/

54

subsequently decided to handle the dossier as a priority issue. After the actual

proposal became published in December 2008, the specialised committees on Health

of both Eerste and Tweede Kamer then brought forward their advice, which was

processed by the TGCS and resulted in a common letter on behalf of the Dutch

parliament as a whole, in which the Commission was requested to answer no less

than nine questions concerning subsidiarity of the proposal. These questions ranged

from practical-medical to safety to financial concerns. The fact that the EWS was not

yet operational may have added to the resulting letter containing no explicitly

outspoken negative subsidiarity opinion, but it is quite clear that enough questions on

the criterion were considered unanswered by TGCS in the initial Commission

proposal to designate the check as negative for the time being. Thirty-two other NPs

forwarded their input through IPEX and the organ transplantation case became one

of the most reacted to with thirty-three chambers involved (see Table 1), amongst

which all twelve unicameral chambers, which makes the virtual amount of possible

votes forty-five out of fifty eight, one of the highest response rates seen so far. At this

point it was clear that before being able to work towards a concrete directive in

Council and EP, a large number of details, amongst which naturally the very

technical/medical facets, would still have to be worked out and negotiated.

What needs to be added to this process, is that the Dutch government, already before

the common TGCS letter with subsidiarity related questions was drawn up, published

its BNC-file on January 27th 2009, which did explicitly give a negative advice on

subsidiarity. The main motivation from government was that, however important the

goals stated by the Commission, provisions and rules for organ transplantation were

sufficiently practised on national level and within the Council of Europe's similar

program. According to government, in view of the practices in the field, there was no

sufficient added value of the specific instrument proposed. In a letter dated 19th

December 2007, the cabinet at that time had already given a similar indication of its

stance on the topic after it was first announced in the CWLP plans for 2008.

Shortly after the actual publication of the proposal in 2009 it became clear, as

parliament in May 2009 received further explanation from the Commission on the

subsidiarity concerns as stated in the TGCS letter, that also parliament did not turn

55

out to be convinced. In the meanwhile a public hearing was organised in April on the

topic of organ donation by the VWS committee of the Tweede Kamer with the

participation of third parties (stakeholders like Eurotransplant and the Dutch

Transplantation Foundation). The final advisory document for response to the

Committee that was then drawn up by the VWS committee was put forward in a

plenary on September 3rd in the Tweede Kamer, and not surprisingly, consequently

accepted. This plenary meeting was thus held almost nine months after the

Commission's publishing of the proposal, although the first letter on subsidiarity

questions from the TGCS was just within the eight-week period. The LT not being

operational yet, and the subsidiarity check being in the testing phase, might explain

the late plenary meeting and the absence of an outspoken positive or negative opinion

on subsidiarity from parliament within the eight-week time limit. However, given the

many questions and concerns, for the record (table 1) I have designated the opinion

as negative for both Eerste and Tweede Kamer.

In this case, both parliament and the responsible negotiating minister in Council on

behalf of the Dutch government (Ab Klink of the Christian Democrat Party CDA)

initially formed an almost uniform negative opinion on the proposal. Because of the

observation of the Dutch minister of VWS that no substantial coalition of countries

with similar reservations could be found in Council, on April 22nd 2010 he informed

parliament that a more 'critical-constructive' stance was taken in order to create a

link with those members who also took critical views on the proposal (which seems

fair enough since the COSAC cooperation concluded that only two out of twenty-

seven parliaments had a definitive negative subsidiarity opinion16), which according

to the minister, resulted in a more flexible character of the proposal and resulted in a

directive somewhat more in line with the Dutch practices.17 As for the Dutch

involvement in the process towards this legislation, this is the last communication

documented in the legislative observatories of the Staten Generaal. This might also be

the result of the emerging consensus in Brussels; the EP had adopted the resolution

three days prior, and ultimately on June 29th 2010 the final agreement was adopted in

Council and the resulting directive was published on 16th September 2010.

16 Eleventh Bi-Annual report COSAC, 11-12th May 2009

17 Kamerstuk 21501-31, nr. 208, p.2

56

5.2 The proposal on CAP food distribution to the most deprived in the

Community (COD/2008/0183)

The dossier on the provisions for food distribution was proposed as a new regulation,

as part of the Common agricultural policy (CAP), and officially stated as “Proposal for

a Council Regulation amending Regulation (EC) No 1290/2005 on the financing of

the Common Agricultural Policy and Regulation (EC) No 1234/2007 establishing a

common organisation of agricultural markets and on specific provisions for certain

agricultural products (Single CMO Regulation) as regards food distribution to the

most deprived persons in the Community”. The Commission first amended the

proposal after initial controversy, and the deadline for the input of reasoned opinions

on the second amended proposal was indicated for 15 November 2010. However, the

initial dossier was opened already in 2008 as a result of the concerns for the declining

stocks of food provision for deprived regions. Since the last EU enlargement and the

change of focus of the CAP from enhancing productivity to stimulating sustainability

of agriculture, the intervention stocks available for food support were declining.18 The

initial 'Food Distribution programme for the Most Deprived Persons of the

Community' had been in place since 1987, but anticipating the mentioned

developments, was renegotiated following a proposal for a new regulation in 2008.

The reaction by government in its BNC-file stated that it did not see the program as

warranted under the right legal base; in the context of the CAP it would be up to the

individual member states to arrange for food support to the most deprived. According

to government, judging the proposal rather as a social policy, it could be that EU

action was justifiable under that policy field. At first only the Eerste Kamer reviewed

the proposal, in the SZW (Social affairs and Employment) committee meeting of

November 18th 2008, in which was decided to share the government standpoint.

Eventually, only after a second amended proposal the bill of new provisions (amongst

which a second legal base added - the Union's social cohesion, indeed), was accepted

in Council in February 2012. One of the main agreements was a maximum of €500

million per budget year fully funded by the EU. The food provision to the most

deprived should preferably make use of intervention stocks, but if needed can also be

18 The details of the initial proposal and its motivation can be found at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=EN&type_doc=COMfinal&an_doc=2008&nu_doc=563

57

provided through market purchases. This all concerned a transition period that ends

on December 31st 2013, after which a new program should be installed.

The yearly list of EU proposals to be scrutinised, which is drawn up after both

Chambers' deliberation with the EAC, was published relatively late in 2010, on April

23rd. The revised food provision proposal was marked out for a subsidiarity check and

picked up by the committee of Economic affairs, Agriculture and Innovation (known

as EL&I in The Netherlands) of the Tweede Kamer on the 4th of November 2010 and

given priority attention. This led to a joint discussion three weeks later in the form of

a General Meeting (Algemeen Overleg, from this point on AO) of the EAC and EL&I

committees with the minister of Agriculture (Henk Bleker of the CDA). The meeting

led to the agreement of sending a common letter from both Chambers (the Eerste

Kamer had already come to a negative subsidiarity judgement) to the EU institutions

that was sent on November 30th 2010. The letter underlined the negative subsidiarity

conclusion mainly along the argumentation that the proposal evolves in the sphere of

social affairs (dealing with poverty and social exclusion) rather than common

agriculture, which first and foremostly makes it an issue for the individual member

states to deal with. The Commission replied officially and made clear that according

to the subsidiarity principle, the proposal does withstand the critique, also backed by

its impact assessment conducted in 2008. Notwithstanding this feedback, also the

Dutch government took a negative stance on the proposal for what basically were the

same reasons as those forwarded by the Chambers.

The proposal failed to obtain the required majority in Council, even after

amendments to it were made in 2010. The proposal was under fire mainly because of

the legal basis, and a substantial number of ministers in Council were opposed to the

financing scheme; most of them opposed an additional co-financing from the MS.

The legal basis issue was judged upon by the European Court of Justice in April 2011,

ruling that the current legal framework provided that intervention stocks be used for

food support, and if needed, only marginal amounts of food products for relief should

be acquired from the open market. A new compromised proposal -COM(2011)634-

was made ultimately in 2011, after which followed an interesting twist in the process;

after an AO between the EAC and EL&I with the minister of EL&I on the amended

proposal by the Commission in September 2011, to resolve the blocking minority in

58

Council, the minister upheld the notion that the proposal was not compliant with the

subsidiarity principle, and that the proposal did not fit within the modernised CAP.

However, the House of Representatives adopted a motion on October 13th in which it

requested government to cooperate in communitarian provision for 2012 and 2013,

apparently being convinced by the Commission's second amended proposal. It makes

clear that at this point, there was no common position of government and parliament

since the amendments. Notwithstanding the newly pronounced preferences of the

House of Representatives, the government kept its negative position. The minister

thus maintained the negative evaluation even in the Council meeting of November

14th, in which nonetheless a qualified majority was obtained. This was followed by a

political agreement on December 16th to maintain the food provision facility in place

at least for 2012 and 2013 and until a new framework would be discussed. This

resolution was adopted by the Council and EP (the latter being an advocate of the

program from the beginning) in February 2012.

In the process towards the adoption of the 'Food provisions to the most deprived',

from the Dutch viewpoint, the most interesting aspect is the motion adopted by the

Tweede Kamer that requested government to support and cooperate in obtaining

Council adoption of the second amended proposal after initially having objected on

the subsidiarity principle. Obviously, when one sets out to study the mechanisms of

national parliamentary scrutiny on EU proposals, one would first expected the

dynamic to be the opposition by NPs towards the Commission (since the Barroso

initiative and the LT) after a negative subsidiarity judgement, possibly complemented

by an effort to influence their government to adopt its reservations in case

government has no similar objections on EU action. In this case, the involvement of

the Tweede Kamer at first follows this dynamic after committee-based deliberations.

However, after the second amended proposal the plenary became involved which

resulted in a parliament supporting the proposal on EU action, while government

held its negative position. There are two plausible explanations of this surprising

turn: first, the minority-based government of CDA and VVD, being in place since

2010, having trouble to obtain a majority in parliament on a European issue, having

to cooperate with the PVV (on a confidence and supply basis) in order to obtain the

majority, the latter being mildly put a eurosceptical party. Second, the Commission's

actual willingness to adopt a number of suggestions (at least this is what happened in

59

their own words) into the second amended proposal, suggestions and amendments

which were directly received from the NPs in the form of opinions after first reading

(even though the number of reasoned opinions received, seven, was quite modest19).

This being said, it is of course highly probable that the Commission simultaneously

calculated the political situation in Council after the existing objections and amended

the proposal likewise in order to realistically stand a chance of passing the bill

through Council in the next negotiation round.

5.3 The proposal on conditions of entry and residence of third-country

nationals for seasonal employment (COD/2010/0210)

Commission published the proposal for the conditions of entry and residence of

third-country nationals on July 13th 2010. Aimed at a general ruling for seasonal low-

skilled workers, the main motivation for the proposal was to facilitate in an expected

ongoing demand for unskilled employment within the EU (with a fast-track

procedure for admission), as well as better protection of rights of low-skilled workers

in order to prevent exploitation and sub-standard working conditions. The proposal

had been delayed for quite some time already; it was already noticed by the (at that

point still active) TGCS and picked out from the 2008 CWLP for a subsidiarity-check.

In his letter from December 5th 2007, the Minister for European Affairs and

International Cooperation (F. Timmermans) already evaluated negatively on the

subsidiarity of one of the aspects of the intended proposal, a single counter and

authorization procedure for a combined employment and residence permit.

Although the proposal in question would have little budgetary implications for the EU

member states, one would expect a relatively high salience, as the measure could not

unambiguously comply with the subsidiarity principle, and albeit treating the

temporary variety, migration in itself has been a hot topic in European politics, not

least of all in The Netherlands, in the last decade. Again published at the start of 2010

in the CLWP, the Tweede Kamer indeed picked out the issue for both subsidiarity

check and parliamentary reserve. The main committee of the Tweede Kamer involved

in this case was the Vaste Commissie voor Veiligheid en Justitie (Standing Committee

of Justice and Safety), which after publication of the proposal, after the summer 19 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0345:FIN:EN:HTML

60

recess ended in September, set the deadline for the issuing of the subsidiarity opinion

of the Tweede Kamer and advised the Tweede Kamer to adopt the parliamentary

reserve that was indicated. Furthermore, a round-table discussion for the MPs was

held shortly after, in which the EAC also coordinated and proposed possible speaking

partners for the discussion.

As the Eerste Kamer decided to support the subsidiarity objections on this file, this

led to the joint opinion of both chambers expressed in a letter to the Commission, in

which a negative subsidiarity judgement was expressed. Soon after followed an AO

that involved the standing committees on Integration and Asylum (A&I), Social

Affairs and Employment (SZW) and the according ministers. Agreements were made

on some provisions to be discussed during the forthcoming Council, and about the

manner of feedback that should be given during the negotiations on European level.

This practically means that the ministers involved are obliged to inform in writing to

the Tweede Kamer any exclusions or added provisions that would occur during the

negotiations on the issue. In this way, as already explained in the previous chapter,

the national ministers involved in the Council negotiations are bound by the

agreement to defend the common position formed in parliament. It is clear that this

quite strongly resembles a mandating system, although this is not an official ruling in

The Netherlands. When parliament decides to apply the reservation provision, this

practically means quite the same as for example the Danish ministers being bound by

the pre-decided position in the form of a mandate from parliament (or committee

representing parliament in a certain policy field) to discuss proposed legislation in

Council. However, from various interviews can be drawn up that the information

provision from government is usually not satisfactory from the viewpoint of MPs.

Late timing of the information provision often seems to be employed to enlarge the

information asymmetry between government and parliament in the advantage of the

former. For example, it has often been noted that feedback from Council meetings

was submitted as short as possible before the control in specialised committee

meetings, practically disempowering the involved MPs (mainly from opposition

parties, most likely) to comprehensively discuss the topics in such meetings.

However, no formal sanctioning of the executives by parliament has occurred so far.

After the aforementioned negotiations within the reserve procedure resulted in the

61

minister agreeing upon the common position and other provisions, the parliamentary

reserve was lifted on November 1st 2010. In the meanwhile it had become quite clear

that a relatively large number of other NPs shared the Dutch subsidiarity concerns. It

did not lead to the first Yellow Card in the Early-Warning Mechanism, but if we do

not exclude the reasoned opinions that were formally outside the time frame

provided, a number of thirteen chambers (of the eighteen needed) concluded a

negative opinion on subsidiarity, another indication of the salience of the issue. After

several Council meetings in which no blocking minority was resolved, various parts of

the proposal were still contested and discussed. The Dutch delegates could in this

case not only use the argumentation of their national representatives being opposed

to certain elements in the proposal, but also point out the reality that a substantial

number of other NPs have their doubts about the compliance with subsidiarity.

Although it had become clear that the yellow card would not be reached, the Eerste

and Tweede Kamer again requested government in a common letter (dated 22nd

February 2011) to respect its concerns, and implied it could defend these objections in

Council using the possibility of an alliance with other countries whose NPs had sent

in reasoned opinions with subsidiarity concerns. Thus, outside of the formal

mechanism, we can see that the interparliamentary cooperation can be used for

possible leverage effects when it is noticed by way of their information exchange that

a substantial number, albeit not reaching one-third, of the other NPs share similar

concerns; in the following JHA Council meeting on 9-10 June 2011, some of the

suggestions resulting from the Dutch input were met with, such as the rejection of a

multi-entry provision, the possibility of the permits to include conditions relating to

employment and housing and the limitation of the maximum length of stay to 24

weeks.

Although no tangible 'EWS result', this case serves as an example of a, for the time,

modestly effective horizontal cooperation between concerned NPs, as stimulated by

the COSAC and facilitated by the IPEX database. The pronunciation of these common

subsidiarity concerns, amongst other objections by individual MS, led to continued

re-emerging of the issue in various Council meetings, but no resolution as yet,

although the Commission has repetitiously called for an agreement in Council, in

order to come to a resolution between Council and EP. At the time of writing, there is

still no agreement, as the proposal seems to be put on the back burner. During the

62

last two Council meetings in April and June 2012, the issue was not on the agenda,

but only mentioned both times under the 'miscellaneous' section. Furthermore the

case confirms the expectation that salient topics (migration in this case), is likely to

involve MPs in European issues. Having an additional coat hanger in the form of a

previously existing national debate on similar topics seems to stimulate involvement

by MPs and consequently formulating a public stance on the topic.

5.4 Proposal on the freedom of establishment and freedom to provide

services: the right to take collective action (APP/2012/0064)

As a result of the process of scrutinising the yearly Commission Legislative and Work

Programme, the EAC and specialised committees of the Dutch parliament make up a

list of priority issues, as mentioned in the previous chapter. In the yearly list that is

drawn up as a result, amongst the European priority issues, some are picked out by

the committees for a subsidiarity check and/or parliamentary reserve. This happens

mainly on the basis of the short descriptions about the upcoming proposals as

mentioned in the CLWP. The EAC tries to keep a close watch on the issuing of the

actual proposal before the time it is published through information obtained from

Brussels, for example through the Permanent Representative. This official shares a

working location with the other Member State's PRs, so this can help not only in

sharing information on forthcoming issues, but also on quick evaluation of other NPs

stances on proposals before and after the Commission publishes them. However, due

to the limited information available to the MPs before publication, some proposals

have shown in reality to not be selected for further scrutiny, but turn out in the period

leading to publication or directly after it, to be found of such importance that a

subsidiarity check is performed anyway, notwithstanding the very limited time period

that is left in such an instance for preparatory activities towards the actual committee

meetings and ultimately the plenary decision on them. One of such cases was the

proposal for a regulation named 'Freedom of establishment and freedom to provide

services: right to take collective action' (COM/2012/0130). The Commission did not

explicitly nor implicitly mention such a proposal in the 2012 CWLP, but it was

published on March 21st 2012. The file was published together with a proposal on a

directive under COM/2012/0131 which reads 'Posting of workers in the framework of

the provision of services: enforcement of Directive 96/71/EC'.

63

At first sight, the package did not seem to generate a lot of attention. The EAC put it

forward to be discussed in the upcoming procedural meeting of the SZW committee

(Social Affairs and Employment). The committee took note of the proposal but did

not opt for further scrutiny activities. Also government in its BNC-file took a positive

stance towards the proposal. But at the instigation of the social democrat party PvdA

and after published protest by the FNV (Dutch workers' union)20, which both

highlighted the part about the right of collective action (strikes) as known as 'Monti

II' regulation (the COM/2012/130 file) as being an infringement on a fundamental

right in the social area as a result of the stimulation of the EU internal economy (by

removal of barriers between countries). This indeed reminds of a well known critique

on European integration known as the supremacy of 'negative' over 'positive

integration', which in short comes down to the lagging behind of common regulation

on social policy like market-correcting laws to the development of open competitive

markets by removing barriers (Scharpf 1999). More importantly in this specific

process, the PvdA did see a clear violation of the subsidiarity principle, based on the

argument that the national provisions on dispute settlement would work

satisfactorily, amongst others. The awareness that the EWS could form an instrument

to advance the objections, led to the short-term assembling of a plenary debate on the

issue through a 'dertigledendebat' (a plenary debate organised on the insistence of at

least thirty MPs, formerly known as 'spoeddebat', or urgent current affairs debate).

The plenary that followed on this request was held on May 22nd, the same day for the

deadline for sending in the reasoned opinions for NPs to the Commission. The

plenary decided to object to the Monti II, drawing up the arguments on the basis of

subsidiarity. The letter that resulted from this deliberation arguments against the

proposal on the principle of subsidiarity along three main lines:

“The proposal does not provide further clarity as regards, on the one hand,

the need to ensure free movement of services and on the other hand, the

need to ensure workers’ right to take collective action. There even is a risk

that the proposal might disturb well-functioning national arrangements in

20 See for example: http://www.fnvbondgenoten.nl/nieuws/nieuwsarchief/2012/april/468854_nee_tegen_ondermijning_stakingsrecht_europa/

64

the area of labour law.

The Dutch House of Representatives does not see the added value or

necessity for the European Commission to intervene in existing national

mechanisms for dispute- settlement. These mechanisms function

sufficiently and satisfactorily at the national level. Nor does it find it

necessary to introduce an obligation for Member States to inform the

European Commission of potential labour disputes in the Member States.

Finally, the House of Representatives recalls that Article 153 (3) of the

Treaty on the Functioning of the European Union explicitly excludes the

right to strike from the range of topics that can be subject to European

legislation to support or complement the activities of the Member States.

Although the proposal does not in itself provide for new mechanisms for

dispute-settlement, the House of Representatives holds the opinion that the

TFEU does not provide ground for European legislation in this area.”21

That same evening, the letter was sent to the Commission and provided for the 18 th

vote (directly followed by the UK HoC being the 19th vote against the proposal),

resulting in the first 'yellow card' since the introduction of the EWS. The letter was

also signed by the president of the Eerste Kamer. In September, the Commission

decided to withdraw the proposal altogether. Although it had the option to amend it

and restart the legislative process, as we have seen in other cases such as the food

distribution to the most deprived, it was most probably the expectation of further

opposition in the EP and Council in addition to the yellow card that has led to the

decision of withdrawal.

21 Reasoned opinion published in IPEX: http://www.ipex.eu/IPEXL-WEB/scrutiny/APP20120064/nltwe.do

65

Chapter 6

Comparative analysis from the case studies

It has become clear from the case studies on a number of proposals, that in most

cases the actual origins of the decision to mark a proposal for subsidiarity-check are

difficult to trace. Mostly the result of untransparent committee deliberations, the

decision leading up to the conduct of the scrutiny in this form is hardly something

debated by MPs in public. However, in the fourth case of this chapter, we have seen

how the opportunity for making an issue publicly debated can be used to bring about

an issue for plenary discussion. In the other cases however, since no deviant opinions

within the process of selecting priority dossiers are readily available, one might

consider that the judgement on whether or not a proposal might be breaching the

subsidiarity principle is rather broadly seen as a technical issue to be judged by

specialists in committees rather than a political one to be broadly discussed. This

perception is, at best, only partly true, and could do with some alteration if the EWS

should have the effect of stimulating a broader number of national parliamentarians

to keep a closer watch on EU legislation.

Thus, the most eye-catching observation on the conduct of the subsidiarity-check in

the Dutch parliament can be considered the developments in the handling of the

dossier on the right to collective action. Where government did not seem to be

concerned with possible infringements in the national sovereignty with regard to the

social policy with the introduction of this directive, and parliament as represented by

its specialised committee of Social Affairs and Employment at first did not express

subsidiarity concerns either, one would expect no further objections. However, it

seems that opinion formed within a specialised parliamentary committee can not

automatically be considered a fair representation for the preference of the entire

parliament. Where in other cases subsidiarity concerns were expressed after the

committee in charge of the topic already adviced against the proposals in terms of

subsidiarity, an eventual vote in plenary turned out different only in the mentioned

case. It is usual for the committees to select the topics of which they expect that, in

their view, parliament could have objections based on the subsidiarity principle.

66

Furthermore, the standing committee on EU affairs keeps track of those proposals

that were not previously mentioned in the CWLP. This also leads to notification of the

relevant specialised committee. Indeed, in most cases when a proposal is then

actually published and the committee in charge of the topic decides to issue a

negative advice to parliament, the resulting plenary vote seldomly turns out against

that advice.

Even the minority-based government of CDA and VVD, in place between 2010 and

2012, has shown to abide by this customary manner of process, except for the

described collective action proposal. When the issue became more salient, in part due

to the efforts of the labor unions, it turned out that the minority coalition could not

rely on the usual permissive voting support of their extra-governmental partner PVV.

From this it seems fair to conclude the importance in this context for political parties

to keep focus on the developments of committee deliberations on EU topics.

Whenever a discussion on the position on subsidiarity develops within the committee

and one or more of the governing parties is noted to have a critical stance on the

issue, the opposition parties should have the possibility of creating a divergent

balance in plenary with regard to the usual government – opposition distribution. In

the case of the proposal under study, a 'thirty-member debate' or urgent current

affairs sufficed to call in an extra plenary meeting in which the voting turned out

differently.

The aspect of salience of this case-study example should also be noted; the relative

salience of the topic and the existence of a previous national debate on a the same

subject or anything directly related, so to speak as a coat-hanger for the easy

involvement of MPs in the discussion, albeit elevated to European level, with

arguments already formed or even tested in practice. Both characteristics were

present in the cases of seasonal migration and collective action, but seem to lack in

the cases of the transplantation and food distribution proposals. Of course, the

subsidiarity-check on the transplantation proposal was carried out in the first place

due to the COSAC cooperation, whose meeting of chairpersons selected it, most

probably because of an advantageous timing of the publishing of the proposal at a

moment in which they knew most NPs could cooperate.

67

In three of the four cases both Eerste and Tweede Kamer were involved in the

subsidiarity-check. In one case the process was coordinated by the TGCS, which

meant the opinions of both chambers had to be consolidated and taken together in

the final reasoned opinion. One of the respondents descibed this back-and-forth

procedure as a cumbersome institutional process. It is noted from the complete list of

subsidiarity-checks that in most cases both Chambers came to a uniform decision

under the TGCS committee in the end, however. Only in the case of the proposal on a

Critical Infrastructure Warning Information Network, the Eerste Kamer decided

against the subsidiarity while the Tweede Kamer did not have objections. In the

other three cases in which the upper and lower chambers have had a contrary

opinion, it was the Tweede Kamer being the one rejecting the proposal. From the case

studies we have seen only the food distribution proposal being handled by the TGCS

committee, which in that case led to uniform opinion. In the other cases, that is from

2010 on, both chambers form their opinion completely separate, both having one

vote in the EWS.

68

Conclusion

Many indications have been noted over the last years that hint toward a further

politicisation of European issues, or rather EU actions. Not only the financial crisis

has resulted in a higher degree of scepticism among electorates, also the attempts to

involve national parliaments in overseeing EU law proposals seem to have induced an

increasing activity amongst national parliamentarians, at least in The Netherlands

this is quite clear. From the research conducted we can say, with a degree of

cautiousness, that the new instruments at hand in the Staten Generaal have resulted

in a more structural handling of proposals, although no clear evidence results from

this research on quantitative increases of scrutiny. Instead, what did become clear is

an increase in the percentage of parliamentary priority dossiers that have resulted in

a negative subsidiarity opinion since the Lisbon Treaty became active. In the years

preceding the introduction of the Early Warning System, the member states' national

parliaments scrutiny functions on EU issues have been stimulated through the

COSAC organisation with the pilot project on subsidiarity checks. It is not so much

that a difference in quantitative activity can be noted pre- or post-LT, but in the

Dutch Chambers, an adaptation towards a more efficient use of the subsidiarity-

check can be noted. The other instrument of oversight, the parliamentary reserve,

seems also to stabilize after increasing rapidly in quantitative use.

From the latest case under study in this thesis, we can see that the fact that an actual

'yellow card' was drawn by the sum of NPs (also called the Virtual Third Chamber,

which I find somewhat aggrandising the interparliamentary cooperation in this

respect, which is rather non-structural and even informal day-to-day through the

permanent representatives' exchange in Brussels) could at least give more credibility

to the new mechanism, a modest effort not even expected by many observers before

the introduction of the Early Warning System or during the first couple of years of its

being operational. Importantly on national level, it teaches us that the involvement of

just one opposition party can set off the discussion, possibly in combination with the

politicising efforts of a third party (in this case the quite influential trade unions)

which can lead to the involvement of the plenary. Over the last years it has become

clear that the permissiveness on EU action of national constituencies is declining. EU

69

themes are gradually becoming more politicised on national level; the share of voters

identifying EU themes as the determining factor in national elections rising from 1%

in 2004 to 10% in 2012 (Van den Berg & Van Eijk 2012). I am bound to see the effort

to involve NPs in the oversight not as an attempt to alleviate the increasing

euroscepticism so widely perceived, let alone as a solution to this problem, but rather

as an signal from the EU executive bodies that solid argumentation about the

prevalence of EU action should be present when proposing legislation and their due

consideration of the possible restraints. This comes close to the mentioned

typification by Dr. Barrett (p. 14) about the EWS: “a more dignified than efficient

measure”. It has to be said though, at least in every single dossier I have looked into

for this research, there has been a written answer by the European Commission when

questions were being asked about subsidiarity or proportionality or when opinions

(not even only official reasoned opinions) were sent in by the NPs.

The specifics on the position of the EWS in the European governance system are

outside of the scope of this particular research, however. What can be concluded

though from the present case studies, is that the circumstances under which the

subsidiarity check is chosen to be performed on EU proposals are not easy to clearly

indicate, but are in most cases rather a result of the political process between the

spokespersons on the specific topics from parliamentary parties within the

specialised committees. Also the European Affairs Committee of the Tweede Kamer

stands out in this research as a pivotal player in the process towards the subsidiarity-

check; it has shown to delegate information from EU-level (through the Permanent

Representative of parliament in Brussels or otherwise) to the concerned specialised

committees, in which necessarily some judgement on the likeliness of subsidiarity

concerns has to be made in the first place. Although the European Commission

directly transmits every proposal to the EU's national parliaments and the

information is readily available once it is published, the necessity of a central monitor

specialised in European affairs seems paramount in order to be aware of upcoming

proposals before they are published, since the time span for official reply proves very

tight in practice. Indeed, in most cases we see the Dutch EAC fulfilling this role in the

scrutiny process, rather than individual MPs.

70

The use of the subsidiarity-check in the Staten Generaal goes through the

involvement of the specialised committees in every case. In theory it is possible for an

individual MP to provoke a debate (for example when his/her party has at least thirty

members in favour of an urgent plenary) but is has to be seen how often this will

come to effect, if at all. From the above-mentioned broad European viewpoint, the

mechanism might be easily overestimated, as illustrated amongst other things by the

numbers shown. In this research though, the focus was constrained on the national

viewpoint, and it seems that the Staten Generaal takes the possibility of scrutinizing

EU proposals through the subsidiarity check serious enough, having developed a

systematic procedure that keeps track of the issued and upcoming EU proposals. As

said, mainly through the constant notifications to alert the specialised standing

committees, and in the committees themselves, who in most cases examine possible

subsidiarity grounds and form an advice towards the plenary. Additionally, from the

interviews became clear that plenary seldom disagrees with the committees advice

(one responded remarking never to have experienced this) which makes it even more

important for opposition parties to keep track of EU issues, as it is in their

possibilities to involve plenary debate especially when a committee chooses not to

take any action.

As for the involvement of the Eerste Kamer in the subsidiarity-checks, from the data

it seems clear that it is more critical on the handled proposals; from the twenty-six

cases in which it was involved (of which four cases were not judged by the Tweede

Kamer at all) , there were nineteen instances of a resulting negative judgement on

subsidiarity. In the remaining eight cases, handled exclusively by the Tweede Kamer,

only two proposals were considered as breaching the principle of subsidiarity. The

TGCS procedure being considered as failing in efficiency, the Eerste Kamer

independantly scrutinises its chosen proposals, but as we have seen, the subjects

chosen for subsidiarity-check do not differ drastically from those picked up by the

Tweede Kamer. Indeed, their incentive is to be complementary to the Tweede Kamer

on important issues such as those in the case study segment. Illustratively, in case of

the proposal that received the first yellow card, the Senate did not compose its own

reasoned opinion, but agreed with the contents of the letter drawn up by the House of

Representatives and co-signed it, thus delivering the crucial 17th and 18th vote in the

EWS.

71

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Interviews:

MSc W. (Wimar) Bolhuis – Policy assistant of MP Mariëtte Hamer, PvdA – October 31st 2012

Drs. J. (Jos) Kester – Senior policy advisor Ministry of Social Affairs and Employment, formerly policy advisor for the European Affairs Committee of the Tweede Kamer – October 26th 2012

Dr. M. (Mendeltje) van Keulen - Secretary for the European Affairs Committee of the Tweede Kamer – September 21st 2012

Drs. A. (Ans) Seriese – EU advisor Social Affairs and Employment for the European Affairs Committee of the Tweede Kamer – October 8th 2012

Dr. S. (Suzanne) van Tilburg - Strategic Programme Manager at Topsector Agrifood International, formerly EU advisor on Agriculture and Innovation for the European Affairs Committee of the Tweede Kamer – October 25th 2012

Drs. J. (Janneke) Timmer - European policy advisor on Education, Culture and Migration/Asylum for the European Affairs Committee of the Tweede Kamer – October 16th 2012

Ms. L. (Libby) Kurien - Permanent Member of the COSAC Secretariat (e-mail exchange)

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