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February 2011

File n°57 

The National Assembly and the Formulation of European Instruments

 

 

 

 

 

 

    Key Points

    The role of the National Assembly in the formulation of Community instruments is mainly carried out through the application of article 88-4 of the Constitution.

    This article in the wording resulting from the Constitutional Act of July 23, 2009, provides that the Government submits to Parliament every draft of or proposal for a European Union instrument.

    It also provides that the assemblies may pass European resolutions on these instruments, as well as on any document issuing from a European Union institution. These resolutions, even if they are not legally binding, nonetheless can have quite a political impact.

    The European Affairs Committee of the National Assembly plays a central role in the implementation of this procedure.

    In addition, the Treaty of Lisbon provides Parliaments with the mission of overseeing the respect of the principle of subsidiarity. To this end, as of the entry into force of the said treaty, article 88-6 of the Constitution provides that the National Assembly may issue reasoned opinions as to the conformity of draft proposals for European Acts with the principle of subsidiarity. This procedure had already been put into practice in an informal way as of the second semestre of 2006.

    After the European decision-making process, the National Assembly may, as of the entry into force of the Lisbon Treaty, institute proceedings before the Court of Justice of the European Union against a European Act concerning the violation of the principle of subsidiarity.

    The French Parliament also implements the transposition of European directives which require the adoption of national legislative measures.

See also file 58

 

    I. – PARLIAMENTARY INTERVENTION AT THE STAGE OF THE FORMULATION OF EUROPEAN INSTRUMENTS

    1. – The procedure of article 88-4 of the Constitution

    The field of European instruments monitored by the French Parliament has been progressively and continuously broadened. Introduced into the Constitution in 1992, on the occasion of the constitutional revision prior to ratification of the Maastricht Treaty, Article 88-4 first of all required the Government to lay before the National Assembly and the Senate any drafts of or proposals for instruments of the European Communities or the European Union containing provisions which are matters for statute, as soon as they had been transmitted to the Council of the European Union. On top of this obligation, as part of the ratification process of the Amsterdam Treaty in 1999, the Government was provided with the possibility of laying before the assemblies, European texts which, though not statutory in character, can be considered as likely to give rise to Parliament taking a position.

    To complete this process, the constitutional revision of 2008 extended the spectrum of instruments which must be submitted to the assemblies by the Government, to all drafts of or proposals for acts of the Communities or of the European Union transmitted to the Council of the European Union.

    a) The Examination and Monitoring Role of the European Affairs Committee

    The European Affairs Committee examines all drafts of or proposals for European instruments which the Government submits to Parliament in application of article 88-4 of the Constitution (see articles 151-2 of the Rules of Procedure of the National Assembly). Approximately 500 European texts are thus submitted annually to the Committee.

    Texts deemed of minor importance or that do not involve any specific difficulty are placed under point A of the Committee's agenda, which means that they are approved without debate. Certain instruments dealing purely with technical issues may be tacitly approved.

    The other texts, placed under point B of the agenda, are presented orally by the Chairman of the Committee or a specially appointed rapporteur who reports on the content and the explanatory memorandum of the draft European instrument, any feedback, compliance with the subsidiarity principle, the legal basis adopted as well as the probable schedule for its examination. The examination sheets of all the E documents are regularly published as part of the Committee's ‘balai’ reports (information reports on texts laid before the National Assembly in application of Article 88-4 of the Constitution).

    As regards each of the texts which it so examines, the European Affairs Committee can decide:

    - To approve the draft of or the proposal for a Community instrument;

    - To defer taking a decision when it feels it lacks information to assess the scope of the text and it may possibly appoint an information rapporteur tasked with addressing in greater depth the examination of the document;

    - To oppose the adoption of the draft of or the proposal for a Community instrument;

    Its decision may be accompanied by:

    - The adoption of conclusions (text of a political character expressing the Committee’s point of view);

    - The adoption of a motion for resolution which, as it expresses a position of the National Assembly, in application of article 88-4 of the Constitution, will be communicated to one of the eight standing committees.

    b) The “Parliamentary Scrutiny Reserve” Mechanism

    The idea of parliamentary scrutiny reserve was introduced in 1994 and was defined by the Prime Minister's circular of November 22, 2005 concerning the application of article 88-4 of the Constitution. It means that the National Assembly and the Senate are entitled to vote - for or against - a proposal for an instrument before its adoption by the Council of Ministers of the European Union. It lays down that the Government must allow a minimum one-month period from the transmission to Parliament of a draft of or a proposal for a Community instrument. This one-month period is part of the six-week interval, laid down by the protocol on the role of national parliaments, appended to the Amsterdam Treaty, during which the Council of the Union cannot adopt a common position or a decision with respect to a legislative proposal received from the Commission.

    There is however an emergency examination procedure which allows the Government to ask the Chairman of the European Affairs Committee to reach a decision on a draft European instrument, without convening the Committee, when the Community schedule requires the urgent adoption of a text.

    c) The Adoption of Motions Concerning Drafts of or Proposals for European Instruments.

    Whilst the adoption of conclusions only expresses the position of the European Affairs Committee, motions for resolution express that of the National Assembly as a whole.

    Any M.P. may table a draft European resolution which may deal, since 2008, not only with documents transmitted by the Government but also with any document issuing from an institution of the European Union.

    These drafts are sent for prior examination to the European Affairs Committee, which must, upon the request of the Government, a group chairman or a chairman of a standing committee, file its report within a month of the request. The European Affairs Committee may also, as has been seen, itself take the initiative of tabling a draft resolution.

    One of the eight standing committees of the National Assembly then examines the text adopted by the European Affairs Committee or, when it has been rejected, the original motion for resolution. If it does not reach a decision within one month of the report being tabled by the European Affairs Committee, the text is considered as having been tacitly approved.

    Within fifteen days of the publication by electronic means by the standing committee of the adopted or taken-as-adopted text, the motion for resolution can be included on the agenda of the National Assembly, upon the request of a group chairman, a committee chairman, the chairman of a committee or the Government. If no request for inclusion on the agenda is made or if the Conference of Presidents rejects this request or makes no decision on it, the text adopted or taken-as-adopted by the lead committee is considered final. It is transmitted to the Government and published in the Journal Officiel (‘Laws and Decrees’ edition).

    The use of article 88-4 of the Constitution represents the contribution of Parliament to the drawing-up of the French position during negotiations within the Council. It can also be the way for the National Assembly to enter into direct dialogue with the institutions of the European Union.

    In any case, the parliamentary resolutions of article 88-4 are not legally binding and their impact is exclusively political. France does not recognize the notion of “negotiation mandate” used in Scandinavian countries where the Government is tied to the position of the Parliament.

    d) Gradual Implementation Due to Gain Momentum

    Between June 25, 1992 and July 1, 2009, the National Assembly adopted 183 European resolutions. Most of them were adopted during the first years of the implementation of article 88-4 of the Constitution: 74 during the Xth term of Parliament, 51 during the XIth term, 41 during the XIIth term and 17 since the beginning of the XIIIth term of office in June 2007.

    As regards the number of conclusions adopted by the European Affairs Committee on documents submitted by Government in application of article 88-7, the movement is in the other direction: they increased from 18 during the XIth term of Parliament (1997-2002) to 41 during the XIIth term (2002-2007).

    However, the examination of resolutions in plenary sitting has become more and more unusual: 33 resolutions were passed in plenary sitting during the Xth term of Parliament, 8 during the XIth term, 6 during the XIIth term and none since June 2007.

    It should however be noted that the new version of article 48 of the Rules of Procedure of the National Assembly provides that for one sitting during the one week out of four which is given over to monitoring Government action and the assessment of public policies, priority is given to European questions. This monthly sitting should encourage the discussion of European resolutions in plenary sitting.

    2. – the monitoring of subsidiarity

    Article 88-6 of the Constitution lays down the mechanisms for the implementation in France of the monitoring of subsidiarity which has been provided to national Parliaments by the Lisbon Treaty.

    The adoption mechanism for resolutions concerning the conformity of a European Act with the principle of subsidiarity (see articles 151-9 and 151-10 of the Rules of Procedure of the National Assembly) is identical to that for European resolutions laid down in article 88-4 of the Constitution. The time limits for examination set for the European Affairs Committee and for the standing committees are however reduced from one month to fifteen full days so as to allow the National Assembly to express an opinion within the eight weeks provided by the Treaty of Lisbon to national Parliaments in order to give their view. It must be noted that this procedure has a real legal impact: draft acts which are rejected by half of national Parliaments could themselves be rejected, as of first reading and by simple majority, by the Council of the European Union or by the European Parliament.

    Upon an initiative of the President of the European Commission, national Parliaments have been putting this new procedure to the test informally since September 1, 2006. In this framework, the National Assembly has issued two reasoned opinions.

    The same procedure applies to the adoption of resolutions concerning the institution of proceedings, within the two months following the publication of the relevant acts, before the Court of Justice of the European Union for the violation of the principle of subsidiarity. Nonetheless, in accordance with the last paragraph of article 88-6 of the Constitution, the institution of such proceedings is automatic when it is supported by, at least, sixty M.P.s.

    II. – THE OPENING-UP OF THE NATIONAL ASSEMBLY TO EUROPE

    1. – Europe at the Palais Bourbon

    During recent years several initiatives have been taken to open up the National Assembly more to Europe.

    Since January 2003, a debate has been held systematically in plenary sitting before every meeting of the European Council.

    The new version of article 48 of the Rules of Procedure of the National Assembly provides that during one sitting of the week of sittings out of four given over to the monitoring of Government action and the assessment of public policies, priority should be given to European questions.

    Article 151-1-1 of the Rules of Procedure of the National Assembly, in the wording resulting from the text passed on May 27, 2009, provides that the European Affairs Committee may give a European perspective during the examination of national Government or Members’ bills dealing with an area covered by the activity of the European Union. It can do this by presenting observations, on the one hand, to the lead committee for the Government or Member’s bill and on the other hand, in plenary sitting when the Conference of Presidents invites it to do so.

    Since 2003, the National Assembly has had an office and a permanent representation to the European Union in Brussels. The main aim of this representation is to strengthen the information provided to parliamentarians on the activities of the Union’s institutions, to keep them informed of the realities of Europe, in particular by organizing working visits to Brussels and to Strasbourg and to encourage inter-parliamentary co-operation. This office is at the disposal of the various bodies of the National Assembly and of all M.P.s.

    In a similar vein, the President of the National Assembly took the initiative of setting up a new multimedia space given over to Europe, right beside the Chamber. The multimedia space enables M.P.s to consult the international media daily. Large television screens transmit the main current European events (permanent information via Euronews, press conferences by the institutions on Europe by Satellite, live sittings from the European Parliament, AFP feed, etc.). Computers also provide permanent access to internet through a choice of sites dedicated to Europe: current news from the institutions, a range of think-tanks, analytical sites, web TV, work of the Assembly on Europe, inter-active sites with local representatives. This portal is also accessible for all M.P.s through the intranet of the National Assembly.

    2. – Interparliamentary cooperation

    The various bodies of the National Assembly also play an active and growing part in the development of inter-parliamentary co-operation. During the French presidency of the Council of the European Union in the second half of 2008, twelve meetings brought together the representatives of the 27 Parliaments and of the European Parliament on major issues on the agenda of the European Union (meetings of the chairmen of the standing committees of the 27, Conference of Community and European Affairs Committees of Parliaments of the European Union –COSAC-, joint parliamentary meetings on the initiative of the European Parliament, meeting of the « trio » of Presidents of Parliaments and the Conference of the Presidents of Parliaments of the European Union which took place at the Palais Bourbon on February 27-28, 2009).