Several proposals were made to monitor observance of the division of powers, and the principle of subsidiarity. One was to involve the national Parliaments, who really have an interest in preserving room for national
9 See also B De Witte, ‘Clarifying the Delimitation of Powers. A Proposal with Comments’, paper delivered at the Conference of the Jean Monnet Group on the Future of Europe, Europe 2004, Le Grand Débat, Setting the Agenda and Outlining the Options, available on www.ecsanet.org.
10 S Weatherill, ‘Competence’, in B De Witte (ed), Ten Reflections on the Constitutional Treaty for Europe, EUI, 2003, available on www.iue.it, 45, at 49–51.
11 See the Laeken Declaration.
legislation, in the decision-making process at the European level. This involvement may assume many different appearances: participation of representatives of the national parliaments in a Second Chamber at the European level as the federal chamber, similar at least in purpose to the American Senate and the German Bundesrat; the convening of interparlia- mentary conferences; the idea of a Congress involving both national par- liaments and the European Parliament. In the framework of the Convention Working Group I on the Principle of Subsidiarity, proposed the setting up of an ‘early warning system’ allowing national Parliaments to participate directly in monitoring compliance with the principle of sub- sidiarity, which would enable them to ensure correct application of the principle. They would be informed, at the same time as the Union legis- lators (Council and European Parliament), of the Commission’s proposals of a legislative nature, and would have the possibility of issuing a rea- soned opinion regarding compliance with the principle of subsidiarity by the proposal concerned. The consequences of such opinions for the con- tinuation of the legislative process could include a duty imposed on the Commission to clarify its position with respect to subsidiarity, and, in the presence of an opinion from for instance one third of national parliaments, the Commission would re-examine its proposal, leading either to mainte- nance of the proposal, to its amendment or its withdrawal. This ‘early warning system’ would place all national Parliaments on an equal footing and have the advantage of not making the institutional architecture more cumbersome, as it would not require the establishment of a new body or institution. This system of ex anteinvolvement of the national parliaments would be completed with ex postjudicial review by the Court of Justice.
24.2.2.2. The Draft Protocol on the Application of the Principles of Subsidiarity and Proportionality: The Early Warning System
The early warning mechanism constitutes a novelty in European constitu- tional law. National Parliaments are for the first time included in the decision making process qua national organs. It is exceptional for any particular national organs to be mentioned at Treaty level12given their status as inter- national agreements the Treaties mostly refer to ‘the Member States’ without specifying the specific organ. Some comments may briefly be made. Firstly, it seems rather restrictive to limit the intervention of the national Parliaments to the principle of subsidiarity. Issues concerning the delimitation of powers do not only concern subsidiarity. Obviously, it is one of the most politically sensitive issues with respect to the delimitation, but it is submitted that the
12 The fact that the procedure figures in a Protocol rather than in the main body of the Constitution does not seem to matter. It has the same force as the Constitution. It is prob- ably only due to historic accident: the Protocol was already there.
system should be more extensive and should also encompass for instance the monitoring of the principle of attributed competences. The intervention should not be restricted to subsidiarity, but involve all types of issues con- cerning the division of competences, and be included in a more general Kompetenzmonitoring system so as to contribute also to mitigate the judicial Kompetenz Kompetenz issue. Indeed, the involvement of the national Parliaments in the general monitoring of the delimitation of powers would make the reservation of judicial Kompetenz Kompetenz in the hands of the national courts less critical, and could diminish the legitimacy of a claim of ultimate authority on the part of the national courts. There is a question, then, why the early warning system should be restricted to matters of com- petence, and why it should not relate to substantive issues also, for instance to questions of fundamental rights. Lack of competence is after all, in the current state of affairs, only one ground of invalidity of Community acts, beside other grounds as the infringement of an essential procedural require- ment, infringement of the Treaty or any rule of law relating to its application, or misuse of power.13However, it does make sense to restrict the ex antecon- trol to competence issues given the highly political nature of the issue of delimitation of competences between the Union and the Member States.
This is especially so for the principle of subsidiarity, but the experience in federal type systems reveals that any division of competence between the central and decentralised or federated entities may fluctuate over time and that conflicts over competences often hide other political conflicts, for instance the distribution of economic resources.14As Weiler has noted, ‘the very language of law, and of legal interpretation, suggests that practically no lan- guage in a constitutional document can guarantee a truly fundamental boundary between, say, the central power and that of the constituent units. The extent to which a system will veer toward one pole or another depends much more on the political and legal ethos which animates those who exercise legislative competencies and those who control it’.15The European example is but an instance of that more gen- eral experience. A role for national Parliaments would reflect, it is submitted, not only the current concern at Member State level over the impression that the Union usurps powers that have not been transferred, but also a concern for more popular legitimacy of the decision, and for an improved balance, not only in the distribution of competences, but also in the monitoring thereof. Indeed, if the decision to adopt a particular act is made exclusively by the political organs at the central level, and controlled by a constitutional court belonging to that same level, there will at least be an impression that
13 See the text of the current Art. 230 EC.
14 See W Lehmann, ‘Attribution of Powers and Dispute Resolution in Selected Federal Systems’, European Parliament Working Paper AFCO 103 EN, at 61.
15 See European parliament DG IV Working Paper, The Division of Competences in the European Union, Working Paper W–26, www.europarl.eu.int/workingpapers/poli/
w26/default_en.htm, at 4.
the federated or decentralised units are left unprotected and that the central level will usually be favoured.16There is much to be said for restricting the involvement of national Parliaments to competence issues. However, com- petence issues may be intertwined with other issues; the competence issue may be abused to cover other grounds for opposing a particular proposal.
Secondly, there is a danger that the transmission of all legislative pro- posals to the national parliaments for competence scrutiny would sub- merge national parliaments with a vast volume of drafts and documents, to an extent that sight of the truly controversial minority of proposals may be lost. One may wonder whether members of national parliaments – or the relevant Committees in Parliament – will be prepared to or have time to study and analyse each and every proposal. Nevertheless, it could be argued that it is up to the national Parliaments to organise themselves in such a manner that the controversial cases are filtered out in a Committee or by a Secretariat, so that the assembly is not concerned with other pro- posals. One side effect of the involvement for competence issues is that national Parliaments, which are willing to be interested, will be involved in a much earlier stage in decision making at the European level than is the case in most national Parliaments today. This would encourage them to seek to influence decision making at the European level through the national representative in the Council – which is under the current system also presumed as an element of European democracy, but is not always the case in practice. It could accordingly have the effect of extending the Danish or British model of parliamentary involvement to other Member States and Parliaments, and cure the currently poor participation of national and sub- national Parliaments in the discussions about European legislative propos- als.17 Furthermore, it would supposedly also improve and facilitate implementation by national Parliaments given that they are aware of what a particular European measure requires at an earlier stage.
Thirdly, one may wonder whether the ‘red flag’ raised by one third of national Parliaments should not entail a formal veto power and imply the end for the proposal at issue. Making it binding would however implicate a new form of veto, coming not from the Member State as such, but from a group of national Parliaments. The competence issue can be misused for other purposes, and the procedure would be open to easy abuse. It is assumed that the Commission will be politically obliged to take the process of explanation and persuasion seriously. It will be aware that ex post facto review by the Court of Justice is feasible.18
Fourthly, there is a problem in certain federal Member States where the scrutiny of Union proposals would have to be divided between several
16 Ibidem, at 63.
17 See also S Weatherill, ‘Competence’, in B De Witte (ed), Ten Reflections on the Constitutional Treaty for Europe, EUI, 2003, available on www.iue.it, 45, at 63.
18 See also S Weatherill, ‘Competence’, in B De Witte (ed), Ten Reflections on the Constitutional Treaty for Europe, EUI, 2003, available on www.iue.it, 45, at 64–65.
parliaments. Indeed, for instance for Belgium it would not be coherent to endow the competence scrutiny at the European level to the national Parliament also in areas which belong exclusively to the parliaments of the federated entities, and where, accordingly, the national Parliament does not have jurisdiction. It could be argued that no account should be taken of that problem at the European level under the assumption that it is essen- tially a national constitutional issue which must be solved at that level. The national constitutional system must find a method to ensure that the con- cerns of the federated Parliaments are transmitted through the national parliament, which must waive the red flag for a Parliament (or all, or a majority thereof, that would be a matter of national constitutional law) of a federated entity having competence concerns. Such a substitution mech- anism would be a matter entirely of the constitutional law of the Member State. Consequently, should the national Parliament fail to act for a feder- ated Parliament within the prescribed period, this would carry no conse- quences at the European level. It would have to be resolved at the national level. It would also be a matter for national constitutional law to find a method to force the national Parliament to act on behalf of a parliament of a federated entity. These arguments will mostly be based on the presump- tion that it would not be reasonable for one Member State to hold several
‘red flags’, while most States would only have one (or two, should it be decided that each Chamber would be given a flag). Nevertheless, these Member States would not have more flags in a particular case, depending on the topic, at least assuming that the early warning can be given only if the majority (or..) of the sub-national Parliament competent in the relevant area want to use it (which is difficult where there would be only two..).
Fifthly, there is the issue of linking the early warning mechanism to the ex post scrutiny by the Court of Justice. This will be considered under the following heading.
24.2.3. Solving the Issue of Judicial Kompetenz Kompetenz
Whichever system is chosen to clarify the division of competences between the Union and the Member States, and even encompassing an early warning system, it will continue to raise problems of patrolling the division of powers ex post. Despite the ‘clarified’ division of competences, and even in the presence of procedural safeguards discussed above, deci- sions may still be adopted whose validity is challenged on the basis of the competence question. ‘Since, from a material point of view, the question of boundaries has a built-in indeterminacy, the critical issue is not what the bound- aries are, but who gets to decide’.19And this is where the problem lies: both
19 JHH Weiler, ‘Conclusions’ of the Conference of the Jean Monnet Group on the Future of Europe, Europe 2004, Le Grand Débat, Setting the Agenda and Outlining the Options, avail- able on www.ecsanet.org, at 13, my emphasis.
the Court of Justice and some of the constitutional courts now claim ulti- mate authority, each from their own perspective. And at the moment, it can be argued that both the European and the national position on judicial Kompetenz Kompetenz are coherent and cogent, each from their own per- spective. Can this dissonance be solved legally?
24.2.3.1. Weiler’s European Constitutional Council
Several authors and groups have suggested the setting up of a separate competence court, which in most cases would decide cases ex postfacto.
An overview of these proposals can be found elsewhere.20Most of them have in common that the European Constitutional Court, Union Court of Review, European Conflicts Tribunal etc., would consist both of members of the Court of Justice and of the national constitutional courts, possibly on an equal basis (paritaire). One of the most noted suggestions is the one made by Weiler, for a Constitutional Council for the Community, mod- elled in some ways after the French Conseil constitutionnel.21It would con- sist of sitting members of the constitutional courts or their equivalents in the Member States, and be presided over by the President of the Court of Justice. Within the Constitutional Council, no single member would have a veto power. The Council would have jurisdiction only over issues of competences (including subsidiarity) and would decide cases submitted to it after a law had been adopted but before its coming into force. It could be seized by any Member State or the European Parliament acting on a majority of its members. In Weiler and Haltern’s view, the principal merit of the proposal would be that it addresses the concern for fundamental
20 See F C Mayer, ‘Die drei Dimensionen der Europọischen Kompetenzdebatte’, ZaửRV, 2001, 577, at 602 et seq., and see for instance the debate in EuZW, 2002: U Goll and M Kenntner, ‘Brauchen wir ein Europọisches Kompetenzgericht? Vorschlage zur Sicherung der mitgliedstaatlichen Zustọndigkeiten’, EuZW, 2002, 101; N Reich, ‘Brauchen wir eine Diskussion um eine Europọische Kompetenzgericht?’, EuZW, 2002, 257; U Everling,
‘Quis custodiet custodies ipsos? Zur Diskussion über die Kompetenzordnung der Europọischen Union und ein europọisches Kompetenzgericht’, EuZW, 2002, 357.
21 JHH Weiler and U Haltern, ‘The Autonomy of the Community Legal Order – Through the Looking Glass’, 37 Harvard Int LJ, 1996, 411; also published in JHH Weiler, The Constitution of Europe. ‘Do the new clothes have an emperor?’and other essays on European integration (Cambridge, CUP, 1999) at 322–323; see also JHH Weiler and U Haltern, ‘Constitutional or International? The Foundations of the Community Legal Order and the Question of Judicial Kompetenz Kompetenz’, in A-M Slaughter, A Stone Sweet and JHH Weiler (eds), The European Court and National Courts – Doctrine and Jurisprudence. Legal Change in Its Social Context (Oxford, Hart Publishing, 1998) 331; JHH Weiler, ‘The European Union Belongs to its Citizens: Three Immodest Proposals’, 22 ELR, 1997, 150; The proposal for a Constitutional Council was originally made in a study commissioned by the European Parliament, JHH Weiler, A Ballbaum, U Haltern, H Hofmann, F Mayer and S Schreiner-Linford, Certain Rectangular Problems of European Integration, (Luxembourg, European Parliament, Political Series W–24, 1996). See also, available on the internet, The Division of Competences in the European Union, Working Paper W–26, www.europarl.eu.int/working papers/poli/w26/default_en.htm. See more recently JHH Weiler, ‘A Constitution for Europe? Some Hard Choices’, 40 JCMS, 2002, 563, at 573–574.
jurisdictional boundaries without compromising the constitutional integrity of the Community, as do the national constitutional courts claim- ing Kompetenz Kompetenz. The composition of the body would underscore that the question of competences is fundamentally also one of national constitutional norms, and it would enjoy far greater measure of public confidence than the Court of Justice, which after all, is part of the Communities.
While the authors agree that the proposal is not fully worked out, some critical observations can be made. First, it may be asked why a new insti- tution should be set up, when the Union already has an institution which has been endowed with jurisdiction to rule on competence issues, the Court of Justice. Certainly, this position is not accepted by all constitu- tional courts, but should – and would – they be convinced by simply set- ting up another institution? Why would they abide by the decisions of this Constitutional Council if they do not follow the decisions of the Court of Justice? The obvious answer would be: because the Court of Justice cannot act as a neutral arbiter as it belongs to the Union, and given its track record. It is agreed that the Court has not, in the past, given proof of strict scrutiny of the Union institutions, and has not always been strict on competences. Yet, why would the constitutional courts comply with the decisions of this Constitutional Council – irrespective of their content?
Why would it have more legitimacy than the Court of Justice? Weiler claims that the ‘composition of the Council is the key to its legitimacy’: it would help restore confidence in the ability to have effective policing of the boundaries as well as underscore that the question of competencies is fun- damentally also one of national constitutional norms, but still subject to a binding and uniform solution by a Union institution. For each Member State, one member of the constitutional court (or its equivalent) has taken part in the decision and in the deliberations within the Constitutional Council. However, he has had no veto power, and may not have been able to convince his colleagues on the Council. Would, in such a situation, the decision of the Constitutional Council be more convincing than the decision of the Court of Justice?22Even where the own member of the Constitutional Council ruled in favour of competence of the Union or Communities, the national constitutional courts as a whole (or a different composition thereof) could arrive at a different conclusion. ‘Letztentscheidungsansprüche nationaler Gerichte lassen sich nicht ausschliessen’.23
22 See the reluctant reaction of Paul Kirchhof in the dicussion on a European Constitutional Court consisting of an equal number of judges from the ECJ and the national constitu- tional courts. He argued, typically, that such an institution could not guarantee the German constitutional legal order, see D Merten (ed), Fửderalismus und Europọische Gemeinschaften unter besondere Berücksichtigung von Umwelt und Gesundheit Kultur und Bindung (Berlin, Duncker & Humblot, 1990) at 127.
23 FC Mayer, ‘Die drei Dimensionen der Europọischen Kompetenzdebatte’, ZaửRV, 2001, 577, at 609.