7 December 2015

Why is a red card for national parliaments necessary?

The EU is suffering from a sustained crisis of legitimacy; in the most recent Eurobarometer survey, only 40% of EU citizens said they trust the EU compared to 46% who said they did not trust it.

This in turn has boosted support for populist parties across Europe. There are countless examples of anti-EU, anti-Euro or anti-establishment parties gaining support, rocking the political system to its core. Meanwhile, the traditional recipe of giving ever greater powers to the European Parliament has proved counterproductive; turnout in European elections has declined from 62% in 1979 to 42.6% in 2014. In contrast, turnout in national elections is on average 25 percentage points higher than in European elections. The way to address the EU’s legitimacy crisis is therefore to boost the powers available to national parliaments to shape EU laws as part of a wider rebalancing away from the EU institutions back towards nation states.

The powers currently available to national parliaments via the so-called yellow and orange cards fall woefully short – neither card is binding, and the European Commission completely disregarded the yellow card issued against the plans to establish the European Public Prosecutor’s Office. In addition, the period in which objections can be registered is very short, they can only be raised on the grounds of subsidiarity – when the relevant issue could be better handled nationally than at the EU level – and they only apply to proposals for new EU laws, not existing ones.

What must a genuine red card include?

1) A threshold low enough that it can realistically be attained
The threshold at which the red card can be issued will be crucial in determining its credibility. It simply makes no sense to have a threshold higher than the minimum blocking minority already available to national governments within the Council of Ministers. As such, it should be set at least at the current yellow card threshold of one third of national parliaments, and ideally even lower.

2) Binding on the Commission
By definition the red card must bring a halt to the proposal in question. The Commission should be required to drop any proposal where national parliaments have triggered the red card.

3) More time to scrutinise proposals
Currently national parliaments have 8 weeks in which to scrutinise proposals, decide if they wish to object and then garner support of 8 other parliaments to issue a formal objection. This period should be doubled to 16 weeks.

4) Broaden scope for objections
Ideally, national parliaments should be able to issue objections to EU laws on any grounds they see fit, matching national governments’ ability to do likewise within the Council of Ministers. At the very least, they should also be able to object on proportionality grounds

5) Apply to existing legislation
Given that a significant amount of legislation was passed before any form of national parliament objection existed in EU law, the new red card should be able to apply to any existing legislation.

The red card could also be supplemented by domestic changes such as introducing a Nordic-style mandate system that requires government ministers to agree a position with the relevant UK parliamentary scrutiny committee before agreeing to anything at EU level. However, such changes are no replacement for reform at the EU level.

How could this be achieved?

Ideally, these reforms would be achieved by changing the EU Treaties. However, with full treaty change highly unlikely before the UK referendum, the changes outlined above could be agreed by EU leaders and codified in the form of a European Council Decision supplementing the existing Treaty-based mechanisms. This would be incorporated into the Treaties at the first opportunity. By doing this, the red card could come into force immediately, and it could only be reversed by unanimous consent among member states.

In addition, the European Commission, Council of Ministers and European Parliament could ratify an Inter-Institutional Agreement in which they agree to abide by the new rules.

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