An Illustration of Inter-Parliamentary Decision-Making under Conditions of Heterogeneous Constitutional Preferences

The mid-1990s and the early years of the 21st century were a window of opportunity for reforms of the direct role of national parliaments in the EU. At that time, the EU's institutional architecture was under discussion, the democratic deficit was an important theme, an intergovernmental conference focusing on institutional reform took place in Amsterdam in the late 1990s, a second one from 2000 to 2001 in Nice and, finally, parliaments themselves had the chance to participate in constitutional politics at the Convention on the Future of the European Union. Nevertheless, at the end of this period parliaments did not have a strong direct role in the EU.

The basic reason for why parliaments could not find agreement lies in the divergence of their preferences. They could not agree on what kind of collective rights and capacities to participate directly in EU affairs they would want to establish. Before going into this argument in more detail, one should also acknowledge, however, that another factor played a role as well: widespread worries as to the impact that empowering national parliaments at the EU level could have on the efficiency of EU decision-making (Rittberger 2005:177-96). In 1996, in anticipation of the Amsterdam intergovernmental conference, the EP produced a survey of the positions of the member state parliaments on a 'third chamber' and found opposition everywhere, with the partial exception of France (European Parliament 1996). It is not very surprising to find such widespread opposition. The dominant issue on the European agenda of the late 1990s was the institutional preparation for Eastern Enlargement and deeper political, economic, and monetary union. Securing the smooth functioning of decision-making was key and there already was a potential threat to efficiency in the form of empowerment of the EP at the European level (Golub 1999; Schulz and Konig 2000). The idea to create a new European institution of national parliaments, in turn, threatened to throw another spanner into the EU's policy process.

Moreover, far-reaching reforms of parliamentary direct participation necessarily come with considerable uncertainty as to their operation in practice. Examples of this line of thinking are not hard to find. The Dutch parliament, for instance, held a debate in 2000 on, amongst others, the idea of a 'Senate of national parliaments' and adopted a resolution asking the government not to support such an idea (Tweede Kamer 2000: 644-706). The Christian Democratic deputy Maij-Weggen's contribution reflects many of the concerns raised in the discussion:

[A Senate of national parliaments] makes European decision-making even more complex and incomprehensible for the citizen. And what about the power question? May the Senate dismiss the European Council of ministers, as the European Parliament now can with the European Commission? Moreover, how does a community Europe with a European Parliament and an intergovernmental Europe with a Senate go together with a system of enhanced cooperation? Is this possible in both domains? Actually yes, and so it will also happen. Do you then not get four variants of European cooperation? How can the citizen still understand this at all?

(Tweede Kamer 2000: 651, my translation)

However, parliaments were not only sceptical of a new European institution. They also opposed other reform proposals, albeit less unanimously. Thus, there were discussions about strengthening inter-parliamentary cooperation in COSAC, possibly in conjunction with specifying and including certain parliamentary rights in the EU treaties in the Protocol on National Parliaments. COSAC could have been developed into a more powerful collective parliamentary institution with decision-making powers. Or, it could have been broadened to include more regular and focused inter-parliamentary committee meetings beyond the group of domestic European affairs specialists (Bengtson 2007). Representatives of national parliaments discussed strengthening inter-parliamentary cooperation, as well as specifying parliamentary rights in the EU treaties, at a COSAC meeting in 1997 (COSAC 1997b). While some parliaments were at least tentatively supportive of strengthening COSAC, the meeting in the end only agreed on an unambitious resolution (see COSAC 1997a; this outcome repeated itself at the Convention on the Future of Europe, as described in Raunio 2009: 323). Thus, the British delegate was right thinking that he represented a majority with the following statement:

As one of those original representatives [that participate in the first COSAC meetings] I am not too disappointed by the path which the evolution of COSAC has taken. I use the word "evolution" advisedly and deliberately. After any period—in our case, seven years—any group which was established initially on an ad hoc basis has an inevitable temptation to formalize and institutionalize both the structure and workings of its organization. I believe we should resist that temptation for practical and legal reasons. Many national delegations at numerous COSAC meetings over the years have consistently reminded us that the fundamental relationship of any national parliament's European affairs committee is with that parliament and it is for that committee, through its national parliament, to establish its working relationship with its national Government. I recognise that not all delegations would use the words that I have but I believe I represent a majority view. (COSAC 1997b: 61)

In a similar vein, the German European Affairs committee (Deutscher Bundestag 1997: paragraph B) later adopted a call for

a vote that [... ] supports maintaining COSAC's status quo as a flexible form of open information and opinion exchange between the members of the national parliaments and [... ] formally informs the government of the Bundestags opposition to further-reaching proposals regarding a possible institutionalization of COSAC.

We can readily find statements of opposition against strengthening COSAC from other parliaments such as the Austrian, Danish, Finnish or Swedish ones (COSAC 1997b: 67, 9, 75-6). As Rittberger (2005: 189) notes, there was 'relatively widespread support for improving the informal role of COSAC and... equally widespread opposition to formalize COSAC'. Such opposition was enough to burry far-reaching proposals for developing COSAC into a more powerful arena of inter-parliamentary cooperation for the simple reason that there had to be unanimous agreement. While one or two dissenting actors may have been bought off, strong opposition from numerous places made an ambitious agreement on a direct role for national parliaments illusory. One of the Danish participants at the 1997 COSAC meeting made this particularly clear (COSAC 1997b: 76):

We are discussing what should be included in the treaty. I remind the committee that we are all in close contact with governments and if just one of the delegations says no we can block it in the Intergovernmental Conference. To try to arrive at an agreement here will not have a big impact on the Intergovernmental Conference if just one delegation says no later. We should leave it at this point.

Although opposition to a Second Chamber of national parliaments may be intuitively understandable, the question remains why there was no agreement on more modest reforms such as strengthening inter-parliamentary cooperation? Let us take a closer look at the inter-parliamentary reform discussion in COSAC in 1997. Doing so lends plausibility to the idea that divergent constitutional preferences, based first and foremost in domestic institutions, shape parliamentary demand for a European role. Two issues were on the agenda of the 1997 meeting. First, parliaments discussed whether COSAC should be institutionalized in some way. Here the main point was not so much how that might look precisely but rather whether to think about it at all. Nevertheless, a number of specific proposals came from the French and Portuguese delegations (COSAC 1997b: 64, 6, 75): allowing for votes on resolutions, possibly using majority voting; focusing on the discussion of major questions of European integration; and having more frequent meetings. Second, the participants debated in what way, if at all, a declaration on national parliaments that was supposed to be included in the EU treaties should specify national parliamentary information rights and say something about the extent of oversight of national governments.

In line with the above quote from the British delegation, numerous parliaments expressed almost reflexive opposition towards any measure of specificity on what COSAC should do or on a declaration on national parliaments. The Swedish delegation (COSAC 1997b: 75), for instance, held:

Far be it from me to suggest that we should remove the references in the text which some of our colleagues have suggested be introduced, but we need not go into so much detail. I can live with most of the conclusions that have emerged from this discussion. The main thing is that we should not go into excessive detail.

Some of the opponents of institutionalization also explain their positions. These statements do not show that opposition to some form of interparliamentary cooperation or rules at the EU level stems from strong domestic rights and oversight institutions. Yet, they show that domestically strong parliaments had little understanding for why any action would be needed and even feared that some of the other delegations' proposals could compromise their focus on domestic oversight. For instance, the Austrian delegation (COSAC 1997b: 67) opposed the idea that the Commission should be coresponsible with governments to provide information to parliaments:

In fact, it lets the national governments of the hook. The national parliaments ought to be informed, but governments do not inform parliaments properly. However, various things can be done. There can be votes of no confidence in Ministers and governments and appeals can be launched. There are various ways in which one can force a government or Minister, constitutionally, to comply with the obligations incumbent upon them.

The Commission is supposed to inform national parliaments, but at the same time national governments are supposed to inform us. I am not sure this will work.

It will simply give an excuse to the offending party to lay blame at the door of the other one. It is right that national governments ought to produce information for parliaments and it is on this that we should focus. We should ensure that we force our governments to behave more responsibly and to disseminate information properly to the members of parliament on all these issues.

In a similar manner, the Finnish delegation (COSAC 1997b: 70) raised concerns that a proposal could interfere with their domestic oversight practices. [1]

national parliaments be improved and that national parliaments should have some control over the decisions of their respective Governments". I cannot accept that we say we should have some control. It is totally unacceptable, for us anyway. Therefore I propose that this should read "and that national parliament should have control over the decisions of their respective Governments as set out in the constitutions of the member states".

The Danish delegation took a less categorical stance but found that 'we are discussing issues which are not the real problems' (COSAC 1997b: 75).

In turn, it is telling to consider the reaction of the delegation from Luxembourg (COSAC 1997b: 73-4) which, first, points out the misperceptions of the domestically powerful parliaments quoted so far and, second, questions their claims as to the domestic incompatibility of some of the proposals.

I do not understand why, if there are delegations that receive information from their Governments, those delegations would be against the idea of having information coming from European institutions? It would make no difference to them.

[... ] For this reason, whatever the time limit, the Commission would have to send information so that even those who are lucky and get information through their own Government will make an effort to help those in a more difficult situation.

Yet, as noted earlier, the necessity to reach unanimous agreement made it unlikely that such concerns would be heard. Hence, the COSAC (1997a) conclusions that were communicated to the Amsterdam intergovernmental conference make no mention of the demand that the European Commission should be responsible for sending documents to parliaments. It fully adopts the Finnish amendment above. Moreover, the utility of COSAC as a loose framework to promote interaction is underlined and a number of organizational proposals for its meetings are made (such as, announcing the date for the next meeting at the end of the previous one). The conclusions also note that COSAC might seek to adopt conclusions in the future, 'however, its conclusions will be offered as suggestions and would not seek to bind any delegate or delegations'.

The 1997 debate on strengthening COSAC indicates opposition from delegations with established practices of domestic oversight. In part, parliaments saw no benefit in new rules and procedures and in part they feared that some reform proposals would compromise their domestic practices. Thus, the debates provide an intuition of the impact of disagreement between parliaments that prefer to focus on domestic oversight and their counterparts elsewhere on the lack of a strong direct parliamentary role in EU affairs. Note that this illustration is not meant as an exhaustive treatment of the interaction of national parliaments in negotiations over what kind of EU level rights they might or might not agree on. More exhaustive treatment exist in the literature (Rittberger 2005: 177-96; Herranz-Surralles 2014;

Cooper 2014). The main point of this chapter has been to investigate the factors underlying divergent parliamentary positions, notably existing EU- related and domestic parliamentary institutions and variation in parliamentarians' constitutional preferences.

  • [1] have two amendments to conclusion number three. The first sentence says that"It is appropriate that the flow of information from union institutions of the
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