Scrutiny of European Legislative Process in the Czech Senate
European Union Unit
OF EUROPEAN LEGISLATIVE PROCESS
Foreign Relations Department
European Union Unit
Valdštejnský palác, budova A, kancelář č. C319
Jan Grinc, Head of European Union Unit
Tel.: 257 07 2664
PARLIAMENTARY SCRUTINY OF EUROPEAN LEGISLATIVE PROCESS
In the 1990’s the debate on the so-called democratic deficit came forth in the EU. The exigency of broader engagement of national Parliaments in European matters appeared to be an essential contribution to bringing the EU, its institutions and procedures closer to citizens. The negotiations resulted in the adoption of the Protocol on the Role of National Parliaments in the European Union annexed to the Treaty of Amsterdam. The adjustment of the extent and character of parliamentary scrutiny and interparliamentary cooperation have been elaborated in the eponymous Protocol of the Treaty of Lisbon:
Commission consultation documents (green and white papers and communications) shall be forwarded directly by the Commission to national Parliaments upon publication. The Commission shall also forward the annual legislative programme as well as any other instrument of legislative planning or policy to national Parliaments, at the same time as to the European Parliament and the Council.
Draft legislative acts sent to the European Parliament and to the Council shall be forwarded to national Parliaments.
For the purposes of this Protocol, ‘draft legislative acts’ shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank, for the adoption of a legislative act.
Draft legislative acts originating from the Commission shall be forwarded to national Parliaments directly by the Commission, at the same time as to the European Parliament and the Council.
Draft legislative acts originating from the European Parliament shall be forwarded to national Parliaments directly by the European Parliament.
Draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank shall be forwarded to national Parliaments by the Council.
An eight-week period shall elapse between a draft legislative act being made available to national Parliaments in the official languages of the Union and the date when it is placed on a provisional agenda for the Council for its adoption or for adoption of a position under a legislative procedure. Exceptions shall be possible in cases of urgency, the reasons for which shall be stated in the act or position of the Council. Save in urgent cases for which due reasons have been given, no agreement may be reached on a draft legislative act during those eight weeks. Save in urgent cases for which due reasons have been given, a ten-day period shall elapse between the placing of a draft legislative act on the provisional agenda for the Council and the adoption of a position.
The Treaty of Lisbon thus introduces Commission’s commitment to send proposals of legislative acts and communications directly to national Parliaments. The Commission had started the practice of direct communication with national Parliaments even before the adoption of the Treaty of Lisbon, on the basis of the “Barroso initiative”, since September 1st 2006. The number of options the national Parliaments have to express their opinions on legislative proposals prior to their final adoption by the Council of the EU has therefore been expanded.
Other major assets of the Treaty of Lisbon for national Parliaments include an explicit assignment of the role in the supervision over compliance with the principle of subsidiarity (Protocol on the Application of the Principle of Subsidiarity and Proportionality), incorporation of the principle of accountability of national Governments towards their respective Parliaments (or citizens) into the Treaties (Article 10 Paragraph 2 of the Treaty on EU), involvement in the Convention method of Treaty revision (Article 48 Paragraph 3 of the Treaty on EU) and conferment of the veto right in certain cases of simplified treaty revision (Article 48 Paragraph 7 of the Treaty on EU and Article 83 Paragraph 3 of the Treaty on the Functioning of the EU).
New powers of national Parliaments introduced by the Treaty of Lisbon have been implemented and further elaborated by the amendments of rules of procedure of both chambers of the Czech Parliament (Act No. 162/2009 Coll.). The amendments in particular oblige the Government to wait for the approval of both chambers before the consent on behalf of the Czech Republic is given in the European Council/Council of the EU to decisions enabling expansion of the decision-making powers of the EU, or changing the rules authorising the Council to move from unanimity to qualified majority voting, without changing the Treaties according to internal procedures laid down in Article 10a of the Constitution.
ROLE OF THE SENATE IN THE SCRUTINY OF EUROPEAN LEGISLATIVE PROCESS
Implementation of the Protocol and mechanisms defining co-operation between the government and parliament vary from Member State to Member State. In the Czech Republic, co-operation is defined by the Constitution of the Czech Republic and the Rules of Procedure of both parliamentary chambers.
The process of submitting the documents to both chambers by the Government is set forth in the Directive of the Government on the procedure for transmitting EC/EU draft legislative acts and European Commission documents to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic.
THE CZECH SENATE AND THE EUROPEAN LEGISLATIVE PROCESS
In case the Senate (or the Chamber of Deputies) decides to scrutinise a draft legislative act, the Government is, according to the Directive, obliged to maintain a so-called parliamentary scrutiny reservation at proceedings in the EU institutions. This reservation, until lifted, precludes a member of the Government from participating in final voting on the scrutinised proposal. The Government has to reflect the Senate’s opinion in all its ensuing documentation.
The existence of a bicameral Parliament raises a question of coordination between both chambers and their bodies in the EU legislative scrutiny, in order to present their stances both within the Czech Republic, i.e. towards the Government, and abroad, i.e. towards the European Commission. The Constitution of the Czech Republic allows in its Article 10b Paragraph 3 for establishing a joint body for the purpose of executing parliamentary scrutiny in EU matters. However, such a “joint” or “great” committee has not been established so far. Therefore, both chambers of the Parliament of the Czech Republic exercise the scrutiny separately and independently of each other.
The interest not to discuss the same European proposals in both chambers of the Parliament of the Czech Republic leads the Senate toward incrementally defining its specific role in EU scrutiny as the upper chamber of the Czech Parliament.
The Senate is a permanent chamber composed of representatives elected for six years, its committees are less numerous and the position towards the Government is weaker. Consequently, it seeks to concentrate on documents of strategic and longer-term character. This corresponds to its role of a less political body with longer-term vision which is neither related to the term of office of the Chamber of Deputies nor to the one of the Government. Besides draft legislative acts, documents analysing a need for legislative action in a certain area (Green Papers) or defining a strategy of activities of EU institutions aiming at achievement of objectives of the founding Treaties are commonly scrutinised as well.
EUROPEAN UNION UNIT
The European Union Unit (OEU) is a part of the Foreign Relations Department of the Senate and it monitors all European agenda. Its concrete everyday activities include:
- classifying EU documents and administrating electronic evidence of European proposals under scrutiny of the Senate with description of results of proceedings
- compiling weekly overviews with summaries of draft legislative acts and EU communications
- cooperation with the Government in matters related to the parliamentary scrutiny of the European legislative process
- elaborating the so-called OEU Information, i.e. analysis of scrutinised EU documents and positions of the Government
- preparing background papers for conferences, public hearings and sessions of the Conference of Parliamentary Committees for Union Affairs (COSAC)
- informing about current course of events in the EU institutions with special importance to the Senate
- disseminating information to other institutions about results of Senate’s scrutiny of the European legislative process
- accompanying Senators who participate at meetings related to European affairs
REPRESENTATIVE IN BRUSSELS
The position was created within the frame of the European Union Unit on November 1st 2004. The purpose of the representative’s activity in Brussels is sufficient and timely transmission of relevant information necessary for executing efficient scrutiny of the EU decision-making process by the Senate. This task includes namely:
- providing information about European documents under scrutiny of the Senate and informing regularly on current affairs in the EU institutions
- drawing attention to politically relevant issues related to the process of scrutiny in the Senate or that are of special interest to the Czech Republic
- maintaining contacts with other institutions important for the Senate’s scrutiny (Czech Permanent Representation to the EU in Brussels, Czech MEPs, European Parliament, European Commission, representatives of other national Parliaments) and informing them about the activities of the Senate in the EU matters
- informing about interparliamentary sessions and meetings organised by the European Parliament or Parliaments of EU Member States
Information is transmitted to Senators, colleagues from the EU Unit and other employees of the Chancellery of the Senate via reports of the representative.
LEGAL BASIS OF THE PARLIAMENTARY SCRUTINY OF THE EU LEGISLATIVE PROCESS
Constitutional Act No. 1/1993 Coll.,
Constitution of the Czech Republic, as amended
(1) The Government shall inform the Parliament regularly and in advance on issues related to obligations arising for the Czech Republic from its membership in an international organization or institution stipulated in Section 10a.
Act No. 107/1999, Coll., Standing Rules of the Senate
Consideration of Affairs of the European Union
(1) The Senate shall consider issues relating to obligations resulting from the membership of the Czech Republic in the European Union; the Senate shall be informed of such issues regularly and in advance by the Government pursuant to Art. 10b (1) of the Constitution. The Senate shall consider, in particular:
a) the report on the development of the European Union during the preceding year and its further development, which shall be submitted by the Government at least once a year;
b) the report on incorporating obligations resulting from membership in the European Union into the legal order, particularly on the implementation of legislative acts requiring transposition, which shall be submitted by the Government at least once a year;
c) preliminary Government information on the agenda of any meeting of the European Council, and subsequent information on the results thereof;
d) Government information on the commencement and course of negotiations on altering the treaties upon which the European Union is established;
e) proposals of legislative acts of the EU which shall be submitted by the Government without undue delay after they have been referred by the European Commission or by any other EU body; and
f) preliminary opinions submitted by the Government on proposals of legislative acts of the EU.
(2) The Senate shall further consider proposals of binding measures of EU bodies, and up-to-date information and opinions of the Government on legislative acts or other EU documents, including information on the stage of their consideration, which are submitted by the Government upon its own motion or upon the request of the Senate or its committee designated to consider legislative acts and binding measures of EU bodies (hereinafter referred to as “Designated Committee”).
(3) Senát jedná též o dokumentech postoupených Senátu přímo orgány Evropské unie341) a o dalších věcech týkajících se Evropské unie, pokud tak stanoví tento zákon.
Procedure before the Senate
(1) The Senate shall consider the proposal of a legislative act or a draft decision where such motion has been submitted by the Designated Committee, or where a minimum of 17 Senators have so expressed in writing before the adoption of the closing resolution by the Designated Committee; the President of the Senate shall immediately inform the Chair of the Designated Committee of such motion. In order to commence the meeting called upon by the motion of a minimum of 17 Senators, the third sentence of Section 119 (3) shall apply accordingly.
(2) The Senate may decide to take the note of the proposal of a legislative act or a draft decision or may express its opinion on the proposal. The President of the Senate shall immediately inform the Government of the result of such consideration.
Without the prior approval of the Senate, consent on behalf of the Czech Republic may not be granted
a) in the European Council when deciding under Article 31 (3) of the Treaty on European Union;
b) in the European Council when deciding on the amendment of the provisions of Part Three of the Treaty on the Functioning of the European Union under Article 48 (6) of the Treaty on European Union;
c) in the Council or, as the case may be, the European Council, when deciding in other cases on the application of the ordinary legislative procedure or on acting by a qualified majority under Article 153 (2), Article 192 (2), Article 312 (2) and Article 333 (1) and (2) of the Treaty on the Functioning of the European Union;
d) in the Council when deciding on appropriate measures to attain the objectives laid down in the founding treaties of the European Union under Article 352 of the Treaty on the Functioning of the European Union, save for measures necessary for the functioning of the internal market.
Moreover, without the prior approval of the Senate, consent on behalf of the Czech Republic may not be granted
a) in the European Council when deciding on the application of the ordinary legislative procedure or on acting by a qualified majority under Article 48 (7) of the Treaty on European Union;
b) in the Council when deciding on determination of the aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure under Article 81 (3) of the Treaty on the Functioning of the European Union.