C. MEETING THE CHALLENGE OF A MORE DEMOCRATIC AND MORE TRANSPARENT EUROPE
A more democratic Europe implies a strengthening of the role of national parliaments. More transparency must be assured in the decision-making process. Furthermore, more than ever, the Union must declare itself as a community based on values and the rule of law.
1. Declaring the European Union as a community of values
Human rights and core values today appear to be tempered even threatened in the discourse of leaders of certain major world powers. It is necessary in this context, to reaffirm the European Union, for a long time identified as merely an economic area, as a community of rights and values. Adopted in 1992, the Preamble to the European Union Treaty stressed the commitment of all Member States to the principals of liberty, democracy, respect for human rights, fundamental freedoms and to the rule of law and also fundamental social rights. According to Article 2 of the Treaty on the European Union, the Union is founded on the values for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to Member States. The Treaty emphasises a European society characterised by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
The Charter of Fundamental Rights of the European Union, drawn up in 2000, reinforces the personal, civil, political, economic and social rights of European citizens and residents, established in the Treaties, the legislature and the Court of Justice of the European Union, to strengthen their visibility. It became legally binding in 2009. It reflects the principals of the European Convention on Human Rights, ratified by all Member States. The inclusion in the Treaties of a reference to the European Convention on Human Rights (Article 6 of the Treaty on the European Union) and to the Charter of Fundamental Rights is a reminder of the European Union's related ambitions. These texts are the foundation from which legislators can add clarification. As part of his role, the judge is charged with applying and interpreting these principals and not with creating new ones.
Moreover, the European Union has provided itself with a system which allows it to penalise a Member State in the event of a serious and persistent breach of fundamental rights. Furthermore, this requirement is, at the core of the Union's foreign policy. A special representative for human rights has been appointed, furthermore the European Union has a dedicated financial instrument, the European Instrument for Democracy and Human Rights, with a budget of 1.3 billion euros for the 2014-2020 period.
2. Strengthening the role of national parliaments: the Permanent Meeting of the National Parliaments
The election of Members of the European Parliament by universal suffrage, since 1979, has not helped to strengthen the link between citizens and the European Union. The idea of establishing a European Senate allowing national parliaments to be more involved in European debates has already been regularly put forward over the last twenty years. It seeks to better take into account the views of citizens via their representatives in the drafting of European texts.
Since its creation in 1989, the COSAC has played a significant role in the networking of national parliaments and in the exchange of good practise, in particular through its half-yearly reports. Parliamentary cooperation is now more diversified: conference provided for in Article 13 of the Treaty on Stability, Coordination and Governance, specialised defence conference, joint parliamentary review group on the activities of Europol. A text providing for the closer involvement of national parliaments in the evaluation of Eurojust is currently being debated.
There is a need to take this further and to introduce a framework and visibility to these forms of interparliamentary cooperation. Without creating a new institution, the aggregation of these different forms of cooperation could be envisaged within a Meeting of the National Parliaments, on the basis of the achievement of the COSAC. There is a need, based on the Treaties, to have a body which is identifiable by citizens where, without prejudice to the powers of the Parliament and Council, concerns which are often insufficiently addressed can be raised. This would undeniably help to increase the democratic basis of the Union.
As with the German Bundesrat, this assembly would be made up of delegates designated by their chambers and would meet in Strasbourg at least twice every six months and as necessary . It would be an appropriate venue to exercise the right of initiative. The plenary sessions, preceded by thematic committees (economy, social affairs, defence, migration, justice and internal affairs, budget), would adopt resolutions on key European issues. This representation would be systematically consulted on subjects relating to the sovereignty of Member States, including defence, migration and Europol and Eurojust monitoring.
Within this framework, national parliaments could also have a debate with the European Commission in regard to their annual work programme. The reformed COSAC would bring together the opinions of national parliaments and would enable them to weigh collectively on the activity of European institutions by addressing their own priorities.
To better implement their missions, the Permanent Meeting of the National Parliaments should be granted a regular exchange with each of these plenary sessions with the President of the European Council, that of the European Commission and its members. It should seek to promote a real political debate, systematically introduced by a national parliament and which includes sufficient expression time for the parliamentarians present, in an interactive way. Informal sessions running parallel to the official session could make it possible to develop contacts between parliaments on specific topics. The reports which it adopts should be widely disseminated, in particular through the specialist European press and through academics invested in European questions.
The permanent secretariat of the COSAC should, under these conditions, be strengthened and support the work of sectoral conferences. The organisation of debates could be facilitated by preparatory work conducted by a small group of interested chambers.
There will also be a need to systematically integrate with national parliaments with the various phases of major European issues: the future of the Economic and Monetary Union, commercial policy, Energy Union, response to environmental issues, with preliminary debates on the adoption of new instruments and regular hearings with the Commissioners involved. European Parliament rapporteurs should also be able to be heard by national parliaments, at their request.
3. Ensuring transparency in the decision-making process
The Interinstitutional Agreement of 13 April 2016 has helped to encourage greater transparency concerning the elaboration of the European standard 17 ( * ) . The new institutional architecture presented above should contribute to a better definition, for the European citizen, of the role of each one and at the same time limit regulatory inflation. This would contribute towards improving the quality of the European standard and further respect the principal of subsidiarity.
Two complimentary actions could be carried out in order to add some clarity to the European decision-making process.
a) The trialogues
The first concerns trialogues, which bring together representatives from the Council, the European Commission and the European Parliament and which have, in recent years, come to symbolise a form of transparency. As with joint committees, trialogues bring together co-legislators to reach a compromise as early as the first reading. 1,500 trialogue meetings were held in the 2009-2014 parliamentary term. 85% of texts were adopted during this period as a result of a trialogue, as opposed to 29% during the two previous parliamentary terms. The Treaties allow for three readings in the ordinary legislative procedure, the interest in this measure is assured since it speeds up the legislative procedure.
However, trialogues are not specifically defined by the Treaties. This procedure remains non-transparent as manifested in the absence of the publication of trialogue agendas or public reports of the negotiations. It is also appropriate to question the composition of these trialogues, when the presence of Commission or Council experts may weaken the position of the European Parliament. It is not surprising, under these conditions, that the European Ombudsman initiated an investigation into this question on 28 May 2015. Its findings were released on 12 July 2016. It identified several avenues to be explored for enhancing the transparency of the measure:
- Set a timetable for the trialogues;
- Present a summary of proposals of each of the co-legislators prior to the meetings;
- Publish a document making public successive versions of the text once adopted;
- Give the public access to the documents used in the trialogues;
- Create a publicly accessible database, gathering together all the available documents;
The institutions involved had to submit their reform proposals before the 15 December last year. The improvement to publicity surrounding the activity of trialogues is undoubtedly moving in the right direction, allowing more clarification on the procedure. It has already been called for by the Senate in a resolution adopted on 20 November 2016 on the proposal for interinstitutional agreement relating to improving regulation. This question is not, however, without implications for national parliaments who do not have any insights on the observations on texts which they were able to submit via their governments or within the framework of political dialogue with the European Commission.
At the same time, genuine legal status must be given to trialogue, in order to clarify the use of this type of procedure and the composition of its fora. An emergency procedure for European texts should also be established, which could be implemented at the request of the President of the European Union.
b) Comitology and delegated acts
The second action to be undertaken relates to comitology, which covers the question of delegated and implementing acts of the European Union, the equivalent of French implementing decrees . The legislator can in fact delegate the power to the European Commission to adopt non-legislative acts of general application that amend or supplement non-essential elements of the legislative act. The Senate identified improper use of this type of action in 2014, which in some cases depart from the original intentions of the legislator.
As part of its 2017 work programme, the European Commission announced that it wanted to engage in debate on the evaluation of the democratic legitimacy of adoption procedures for implementing or delegated acts. A process of political monitoring on the type of act has already been in place since May 2016, implemented by the Commission.
Beyond the action of the Commission in this area, at the time the text is reviewed by legislators, a limited use of this type of act must be achieved, and it must have exact and reduced scope. Legislators must be allowed the leeway to revisit these acts one they have been adopted by the Commission. The usual time period of two months is too short in this regard and should be extended to three months. The comitology is also based on an exchange between the European Commission and self-appointed committees of experts, with no guarantee of representation for Member States. A transparent expert designation process must be implemented, which involves legislators. In view of their impact on national legislation, implementing or delegated acts should also be subject to the subsidiarity monitoring of national parliaments.
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Recommendation for a clearer Union, closer to its people 1. Refocusing the Union on the essentials - Refocusing Europe on its essential tasks: striving for European added value: striving for European added value by prioritising the most appropriate level of intervention; subsidiarity must be the founding principal of all European actions; remember that nothing will be achieved in Europe without the impetus from the States to regain the people's support; limit delegating sovereignty to specific needs with the agreement of the States. - Reinforcing the monitoring mandate of national parliaments: On monitoring compliance of the principal of subsidiarity Without revision of the Treaties (Protocol n°2 on the application of subsidiarity and proportionality principals): better justification by the European Commission of the use of a legislative proposal: reversing the burden of proof in order to put an end to the regulatory spiral; The revision of Treaties is not a current priority. However, in time, a revision of the Treaties (Protocol n°2 on the application of subsidiarity and proportionality principals) could be envisaged: increasing the time allocated for reviewing texts on the basis of subsidiarity from 8 to 10 weeks; introducing a 12-week response time for the European Commission to deliver a reasoned opinion; review of delegated or implementing acts by the national parliaments for the purpose of monitoring compliance of the principal of subsidiarity. On political dialogue with the European Commission improvement of European Commission response times; obtaining more reasoned responses. - Making simplification a permanent priority: making the European standard clearer, more readable and more accessible; broaden impact assessments, in particular aimed at small and medium sized enterprises and local authorities; strengthening the political monitoring of standardisation mandates agreed by CEN, the European Committee on Standardization. 2. Renewing the institutional system: responding to the democratic challenge Strengthening the role of promotion and coordination of the European Council: Without the revision of Treaties: ensuring a better balance intergovernmental logic and the Community method; reaffirming the role of impulsion of the European Council, who each year adopts a reduced number of priorities which should guide the action of the European Union. The revision of Treaties is not a current priority. However, in time, a revision of the Treaties could be envisaged: the election of the president of the European Council by the European Parliament and the Permanent Meeting of the National Parliaments abolishing the revolving presidency of the European Union; Reviewing the function of the institutional triangle: On the European Commission: the right of initiative of the European Commission must focus on the implementation of common priorities adopted by the European Council, while respecting the principal of subsidiarity; The number of commissioners shall be reduced and their portfolios adapted in line with the priorities defined in the work programme returning to the original spirit of the founding fathers, with an extranational, focused and political Commission made up of high-level experts, promoting general interest; the categories of directorates general and European Union agencies should, at the same time, be redefined and the human resources required be adapted to this re-focus; On the Council: qualified majority voting would become the norm, except in the area of defence. On the European Parliament: the number of its members is limited to 700, and will be reduced to 630 once the United Kingdom leaves the European Union; its system of election is harmonised, the lists must respect the principals of fair demographic representation and gender equality. 3. Meeting the challenge of a more transparent and more democratic Europe - Strengthening the role of national parliaments: the Permanent Meeting of the National Parliaments: The Permanent Meeting of the National Parliaments would incorporate all the existing forms of cooperation: COSAC, conference under Article 13, joint parliamentary review group on the activities of Europol...; it would be made up of delegates designated by their chambers; it would meet in Strasbourg at least twice every six months and as necessary; it would consist of thematic committees (economy, social affairs, defence, migration, justice and internal affairs, budget); it would have a right of initiative or «green card», giving it the opportunity to propose actions to be pursued by the European Union or to amend existing legislation, on the own-initiative report model of the European Parliament; it would have regular exchanges with the president of the European Union and the European Commission, including during plenary sessions. - Ensuring transparency in the European decision-making process: giving genuine legal status to trialogues, associating after the first reading of a text from the European Parliament, Council and European Commission, improving the publicity surrounding their work and clarifying their composition; establishing an emergency procedure for European texts, which could be implemented at the request of the President of the European Union; imposing a limit on the use of delegated and implementing acts and subjecting them to monitoring compliance of the principal of subsidiarity, as implemented by protocol n°2 annexed to the Treaty of Lisbon; supporting the comitology by implementing a transparent expert designation process within committees, involving legislators. |
* 17 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission «Better Law-Making», 13 April 2016.