6th MEETING OF THE ASSOCIATION OF EUROPEAN SENATES
WARSAW, MAY 24-25, 2004
Response to questionnaire
1) Legal bases (constitutional, legislative, regulatory) of the role played by the Senate in areas concerning the European Union. Competences of the committee in charge of the European Union and legal bases for its establishment.
a) Constitutional base
Article 88-4 of the Constitution was introduced by Constitutional Act of 25 June 1992 and amended by Constitutional Act of 25 January 1999. It imposes on the Government the obligation to submit to the General Assembly and to the Senate all draft or proposed legal acts of the European Community and the European Union containing legislative provisions as soon as they are transmitted to the Council of the European Union. Each of the two Assemblies may vote resolutions on texts submitted thereto.
Furthermore, the Government can submit to the Assemblies "other draft or proposed acts as well as all documents produced by an institution of the European Union". This relates to European texts which may not contain legislative provisions but may be deemed by virtue of their content as prone to give rise to a parliamentary position. Each of the two Assemblies can also vote resolutions on these texts.
b) Legislative base
For as long as national parliaments elected the European Parliament by indirect suffrage, they were in so doing institutionally attached to the European arrangement. The disappearance of this link has led the French Parliament to establish in each Assembly, by the Act of 6 July 1979, a specific parliamentary structure named "parliamentary delegation for the European Communities" - tasked with following European issues without prejudice to the competences of the standing committees.
The significant growth of legislative activities of the European Communities resulting from the signing of the Single European Act has led the Parliament to decide a reinforcement of the role of the delegations by the Act of 10 May 1999. The number of their members and their operating principles were modified to approximate those of a standing committee.
In view of the application of the Maastricht Treaty on 1 November 1993, the Act of 10 June 1994 modified the designation of the delegations - they became National Assembly and Senate delegations "for the European Union" - and specified that their competences covered all activities of the European Union, including common foreign and security policy (CFSP) as well as cooperation in the field of justice and home affairs (JHA).
c) Regulatory base
Article 73 bis of the Senate Rules tasks the Senate delegation for the European Union with a regular examination of all texts submitted to the Senate by virtue of the application of Article 88-4 of the Constitution. Consequently, the delegation tries to sort out texts that are numerous (approximately 200 per year) but of an unequal importance. After examining these texts, the delegation can:
2) How are European competences distributed between the Chamber of Deputies and the Senate? Why are they distributed so?
European competences of the two Assemblies are identical.
3) Relations between the Senate and the Government concerning European Union issues. Does the Senate follow and control Government legislative activities associated with the Community? Can it influence the selection of Government candidates to positions in European Union institutions? How does it participate in the process of transposing EU law into national law?
A/Control of Government
a) The Senate controls Government legislative activities associated with the Community on terms set out in Article 88-4 of the Constitution (see above). That article allows the Senate to speak out on draft European legislation which it considers important.
b) The Senate delegation for the European Union and relevant standing committees may question appropriate ministers and representatives of EU institutions.
In particular, the Senate delegation for the European Union regularly questions the minister responsible for European affairs. It also questions other personalities with specific European competences and exchanges opinions with representatives of the parliaments of other EU member states. It publishes Actualités de la délégation pour l'Union européenne, which presents an overview of its activities as well as information reports on subjects of its choice. All these documents are also available on the Europe page of the Senate website (http://www.senat.fr/europe).
c) Since 1990, the Senate follows a debate and information procedure reserved for European issues: oral questions and a debate on European subjects. This procedure allows the Senate to debate specific European problems with the relevant minister. Within the framework of such oral question, the right to speak is reserved to its author, to the senator representing the delegation for the European Union, to the senator representing the relevant standing committee, to the Government and to representatives of all political groups.
d) The law of 1990 imposes on the Government the obligation to provide the delegation for the European Union in each Assembly with all appropriate documentation. The delegation receives among other things all draft legislation or proposals of directives, regulations and all other EU acts as soon as they are received by the Council of the European Union. It also receives all consultative documents published by the European Commission ("green papers", "white papers", messages). The Government must also keep the delegation informed of negotiations in progress.
e) To provide for the implementation of Article 88-4 of the Constitution, a Government decision guarantees since 1993 to the National Assembly and to the Senate a delay of one month during which they can manifest their will to comment on a draft European text. When that will is clearly manifested, the Government must, whenever possible, oppose taking any definite decision at the Community level until the National Assembly and/or the Senate has the opportunity to express its opinion. This mechanism, often called "parliamentary scrutiny reserve" - a reference to the British model of "scrutiny reserve" - gives both Assemblies a very important right enabling them to effectively exercise parliamentary control.
In practical terms, the Senate delegation for the European Union plays a very important role in the application of these rules:
From that moment on, the Government relies largely on the activities of the delegation to ensure, when the case arises, the application of the parliamentary scrutiny reserve. However, it does happen in case of certain texts that the Government wishes to proceed with their adoption by the Community, even though the one-month delay guaranteed to the two Assemblies has not yet elapsed. Such texts may include:
In such cases, the Government asks the delegations for the European Union if it could agree to a Community text before the normal delay reserved for its examination is over. The delegations are then forced, particularly at the end of each presidency of the Council of the European Union, a period when traditionally there is a backlog of Community texts, to express their opinion in a hurry.
In order to better deal with such situations and to relieve the agenda of less important draft Community proposals, the Senate delegation has adopted a simplified procedure for examining Community texts which at the first glance do not necessitate Senate intervention. Under this procedure, the delegation chairman regularly sends our to delegation members those draft Community proposals which, on first analysis, do not seem to him as necessitating Senate intervention. If after expiry of a predetermined period none of the members asks to have one or several texts examined at a delegation meeting, the chairman is free to assume that the delegation has decided not to intervene with respect to those proposals. And vice-versa, any text under the simplified procedure which at least one delegation member considers as requiring examination must by law be added to the agenda of the next delegation meeting.
This way of proceeding enables the Senate delegation to cope with urgent situations and concentrate at meetings only on draft Community acts which are deemed most important.
B/Selection of candidates
The Senate must not influence the selection of candidates. That decision is reserved for the President of the Republic and the Prime Minister.
The transposition of European texts into national law is effected using the regular legislative procedure.
4) Does the Senate participate in inter-parliamentary collaboration within the European Union? To what extent?
The Senate participates in European inter-parliamentary collaboration to the same extent as the National Assembly.
5) How do you assess current arrangements allowing the Senate to participate in issues proper to the European Union? Are there plans to modify these arrangements and, if so, in which direction?
Current arrangements seem generally satisfactory. However, they are situated inside a constitutional system where the Government's role is dominant.
A modification of certain arrangements will be necessary if the draft Constitution of the European Union is adopted. Specific regulations will be indispensable to effectively apply the "subsidiarity test" and to allow a direct submission of the Court of Justice to either parliamentary assembly.