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By the Amsterdam treaty Governments were strongly encouraged to ensure that national Parliaments receive the legislative proposals from the European Commission in good time to allow them to scrutinise the relative documents.
As a point of fact many Parliaments find that they do indeed receive EU draft legislation in reasonably good time, while others are less content. In some countries like Italy, Parliament has found it necessary to pass a Law obliging the Government to transmit the proposals within a particular time frame. In other countries like Denmark a different approach has been taken. Here, according to Danish Law EU documents are transmitted directly to Parliament itself and not via the Government. In this regards the Maltese Parliament has not yet taken a definite decision, though I do feel that we should follow the Danish module since this gives a stronger and more direct role to Parliament.
According to EU Law, the Council must put draft legislation on the agenda at least six weeks after it is received from the Commission. As soon as that happens the proposals themselves and/or explanatory memoranda become available for scrutiny by the National Parliaments. It is therefore more practical for the Maltese Parliament to be able to access draft legislation independently and immediately without having to wait for the Government’s consent to start the process.
Not all national Parliaments have chosen the same approach when it comes to reviewing EU legislation. Some states have selected a system empowering Parliament or their respective European Affairs Committees to mandate their Governments before Ministers can endorse legislation at the meetings of Council. On the other hand other states have chosen either a more document based approach or simply more informal channels of influence.
In northern countries such as Denmark, Sweden and Finland the former approach is adopted and the respective European Affairs Committees mandate their governments on a weekly basis before all meetings of the Council. Other countries such as the Austrian Parliament, for example, do not use their formal powers to formulate binding opinions vis-à-vis their Governments very often. In practice they rely on the more regular exchange of opinions with members of Government which is generally sufficient to encourage the Government to take into account the position of Parliament.
Except for Lithuania all new member states have recently introduced scrutiny systems based on different types of mandating arrangements and all give specialized European Affairs Committees a significant say in relation to their Government’s position in the Council. In the vast majority of new member states it is obligatory for the respective Governments to seek an opinion from the respective European Affairs Committees in advance of meetings of the Council and will be bound to vote accordingly. In Estonia, however, they have adopted a system which is slightly different. Here, it is not only the European Affairs Committee which will scrutinize European legislation, but likewise also the other relative Parliamentary Committees.
On the other hand Lithuania, though it has not finally adopted constitutional changes to set up a scrutiny system, has a draft constitutional text whereby the European Affairs Committee will be empowered to give the Government a mandate which it must take into account. The Committee however will not be empowered to do so with regards to all legislation. In fact EU legislation is to be categorized into three categories. The Committees’ decision will be binding on only two of these categories.
In Malta the position is not that clear. It is true that a few months ago Parliament increased the terms of reference of the Foreign Affairs Committee to also act as a European’s Scrutiny Committee. It is also explicitly clear that it will be the primary role of this Committee to analyze all EU draft legislation. In fact this Committee is the only Parliamentary Committee which will have an administrative back up in order to assist it in its important new role. This notwithstanding, however, the law is still not clear as to whether in actual fact the Maltese Government will have to be mandated when it comes to taking a position or a vote in Council or whether the role of the Committee will be merely consultative. It is my earnest opinion that in order to preserve true democracy here in Malta and hence the sovereignty of our Parliament we should surely adopt a system whereby the Ministers’ vote in Council will have to be conditioned by a vote in the Committee which after all is nothing less than the lunga manus of Parliament itself.
Dr Jose’ Herrera is a member of the Foreign & European Affairs Committee
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