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Open Europe's Pawel Swidlicki explains why a 'red card' for national parliaments is necessary, and sets out the five criteria required to make it effective in practice.
7 December 2015
In a new report published today, Open Europe sets out how a collective veto right for national parliaments over EU laws – a red card – could work in practice. This demand is already part of Prime Minister David Cameron’s formal EU renegotiation objectives, but there is a risk that under pressure to strike a deal, particularly in view of the ongoing difficulties around reforming rules on EU migrants’ access to benefits, the effectiveness of any red card could be compromised. Open Europe’s Pawel Swidlicki explains why out the red card is necessary, and sets out the criteria required to make it effective in practice.
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 – the strong performance of Front National in the French local elections is only the most recent example.
The traditional EU response 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 best way of addressing the EU’s legitimacy crisis is therefore to boost the powers available to national parliaments to shape EU laws as part of a wider re-balancing 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.
In order to be effective, the red card needs to include the five following criteria:
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.
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.
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.
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
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.
As noted above, the threshold at which the red card can be triggered is crucial. A high threshold will be easier to negotiate but very difficult to reach, rending the mechanism useless in practice. The obvious temptation would be to set the threshold at the level of the orange card – which would require half of national parliaments across the EU to object, an almost impossible threshold to meet in practice. David Cameron should therefore resist this temptation and push for a red card which could genuinely put national parliaments back in control.