by Dr Longin Pastusiak, President of Polish Senate at the 6th meeting of the Association of European Senates
Warsaw - May 24-26, 2004
The accession of ten new states - including Poland - to the European Union is a breakthrough event. We have taken a huge step on the way to a truly unified Europe, although the process is not yet completed. This accelerating and increasingly close-knit integration places before the Union and each of its members a gamut of challenges connected with almost all aspects of life. Among them are also those which relate to parliaments. There is a need for laws, rules and procedures which include national parliaments in decision-making processes at the EU level.
Today's meeting of the Association of European Senates, held less than a month after the grand enlargement of the European Union, is an excellent opportunity for an analysis of the competences of national parliaments with respect to the Community and, particularly, for a reflection on the role played therein by upper parliamentary chambers. Parliaments of all countries acceding the European Union have been actively involved in the process of adaptation of the internal legal system to Community laws.
There is a clear trend toward widening the role of national parliaments in the European Union. Indeed, until now, domination by national governments has been the binding rule. They have played a leading role in relations with European institutions, whereas national representative bodies had to contend with a lesser position. It is estimated that a member-state parliament loses some 60% of its current legislative competences as a result of their transfer to the European decision-making level. Today, the process of restricting the position and role of national parliaments is being slowly but consistently decelerated and reversed. The need to provide national parliaments with institutional possibilities of influencing the development of joint European laws has been stressed in numerous declarations, including Declaration No. 13 on the Role of National Parliaments in the European Union or in the Protocol on the Role of National Parliaments in the European Union annexed by virtue of the Amsterdam Treaty to the Treaty on European Union. They all encourage national parliaments to become more involved in EU activities and urge them to establish a closer cooperation with national governments, necessary to work out joint positions. In addition to declarations, institutional forms of engaging national parliaments in EU decision-making mechanisms, such as COSAC, are either created or expanded.
The issue whether both parliamentary chambers or only one should play an active role in the domestic decision-making process relating to the European Union depends to a large degree on the overall concept of bicameralism. A model of two equal and symmetrical chambers will require equal involvement, as is the case, for example, in Italy. In turn, an alternative model of unequal or asymmetrical bicameralism will probably lead to a situation where the leading role will be reserved for a single chamber, likely the lower one, as illustrated by the Austrian experience. The asymmetry of chambers does not at all exclude their equal involvement in matters concerning the European Union, as shown by the example of the Fifth French Republic. It may even be said that, in some cases, it is precisely the involvement in the European decision-making that compensates for the weaker position of the upper chamber. While the two chambers may be unequal when it comes to their domestic legislative or controlling functions, they become equal in the area of European policy. As a consequence, the upper parliamentary chamber may end up performing a totally new function.
Moreover, the upper chamber may play a particular role in EU affairs by representing the interests of specific regions and territorial units. Indeed, we should take into account opposite tendencies and processes which are evidently taking place on our continent. On one hand, there is advancing integration and globalization, while on the other, there is also increased regionalization. In many countries, there is a clear trend toward accentuating national differences and dissimilarities. It seems, therefore, that the upper chamber may turn out to be a very useful tool in representing these regionalisms and, at the same time, a body making possible their European institutionalization. The examples of Belgium, Netherlands, Spain and, particularly, Germany confirm that very convincingly. Suffice it to mention the German Bundesrat which seems to be at the forefront of promoting participation of the lands in European integration processes and which is slowly transforming into a chamber that represents these regions equally on the EU level and on the German federal level.
The participation of parliamentary chambers, including the upper chamber, in European decision-making mechanisms necessitates properly designed domestic legal norms. Giving a constitutional rank to laws governing the European role of national parliaments is not indispensable but seems very desirable for several reasons. Firstly, because it has a symbolic significance. A constitutional authority given to European activities of parliamentary chambers underlines the significance of these tasks. At the same time, it is a form of compensation for national legislatures losing certain prerogatives to EU bodies. Secondly, a constitutional reference to the parliament's European tasks, because of their importance, makes it possible to separate a new function of national legislature - the European function. This function consists in introducing European norms into the domestic legal order, which is undoubtedly an expression of a law-making activity, but also in cooperating with the government on European issues, which, in turn, is associated with a certain form of control. Thirdly, a constitutional reference to the parliament's European function contributes to the creation of a sense of assurance and stability, which in itself is very valuable to any legal order. However, even without appropriate constitutional provisions, there exists a guarantee for a pro-EU interpretation of the constitution, which among other things requires maximum involvement of the parliament in the European integration processes. This interpretation is done at a lower level of legislation, i.e. in legal acts and parliamentary regulations. The latter ought to assist the parliament in acquiring the necessary information from and collaborating with the government on drawing up joint positions addressed to the European Union. Such procedures consist mainly of the government's obligation to table specific documents to the parliament, consult or seek the parliament's opinion with respect to some such documents, and establish specialized internal parliamentary committee-like bodies. Today, so-called European committees are standard, but there still remains the question whether each chamber should have a separate European committee or should there be only one such committee in the parliament. It seems that the choice of a European committee model should be correlated with the overall model of the chambers' European involvement. Consequently, if we opt for a concurrent accomplishment of European tasks by both chambers, without any clear specialization, then a joint committee seems to be more appropriate - and the example of Spain confirms that. However, if we adopt a division of tasks or an unbalanced performance of European tasks by both chambers, then separate committees seem more appropriate.
If we take a closer look at constitutional foundations of the Polish Senate's European prerogatives we easily notice how scrawny they really are. The Polish constitution governs only the issue of transferring the competences of Polish state bodies to the Union and defines the supremacy of the EU law in case of collision with domestic legislation.
The Polish constitution lacks provisions detailing the role of the parliament in matters associated with our membership in the European Union. Therefore, we need to refer to the above mentioned Protocol on the Role of National Parliaments in the European Union.
As we know, the protocol obligates the European Commission to forward its consultation documents (green and white papers and communications) directly to member-states' national parliaments upon publication and to send EU legislative proposals to national governments early enough so as to ensure that they can forward them to parliaments on time. It should be stressed that the protocol unequivocally points to the government as the body tasked with forwarding European documents to the parliament upon reception. What is more important, the member-state government is also liable for the outcome of such document circulation.
The preamble to the protocol also stresses the necessity for a greater involvement of national parliaments in the activities of the European Union, but the form of that involvement is a matter for the particular constitutional system of each member-state.
With a view to implement the provisions of the protocol and fill the peculiar gap created as a result of the absence of constitutional regulations, the parliament passed on March 11th, 2004, the Act on Cooperation of the Council of Ministers with the Sejm and Senate on Issues Associated with the Membership of the Republic of Poland in the European Union.
This act commits the Council of Ministers to cooperate with the Sejm and Senate on all matters associated with Poland's membership in the European Union, and obligates it to provide both, I repeat, both chambers of parliament with reports on the participation of the Polish Republic in EU activities. These reports must be tabled at least once every six months. The act also provides the Sejm and Senate, as well as "their bodies having appropriate jurisdiction defined in parliamentary regulations", i.e. European committees of both chambers, with the right to request information on issues associated with Poland's membership in the European Union.
As a result of passing the Act, the Polish Senate adopted on April 22nd a resolution amending its regulations. This amendment provides for the establishment of a new Senate committee, named the "European Union Affairs Committee". An annex to the regulations also defines the tasks of the Committee, namely dealing with all issues associated with Poland's membership in the European Union, particularly as concerns taking positions and expressing opinions on EU draft legislation, drafts of international agreements (to which the European Union, European Communities or their member-states are to be a party), planned activities of the Council of the European Union, and annual legislative plans of the European Commission, as well as examining information and other documents tabled by the Council of Ministers.
We are now coming to an issue which is likely to be the most important. It deals, of course, with the division of European competences between the two chambers of parliament. In other words, should both chambers be involved in performing European tasks and, if so, to what extent, or maybe these tasks should be assigned to only one chamber and, if so, which one.
The debate on the shape of the entitlements of both chambers of the Polish parliament with respect to European issues has been very tempestuous. While it was in progress, traditional parliamentary competences were thoroughly examined and the outcome of that examination served as a background for the scrutiny of the issue of participation in the creation of Community laws. Indeed, the division of European competences between the Sejm and Senate depended on a definition of that "participation". During the development of pertinent legislation and despite initial misgivings, it was decided that the work of the representatives of the legislative branch on government proposals relating to the European legislative process did not fit in the traditional functions of the parliament. They remained at the junction of legislative and controlling functions, and in practical terms would constitute a compensation for the parliament losing its legislative competences to EU bodies.
However, one cannot compensate a real loss of legislative competences only with new controlling competences (which by virtue of the Polish constitution are vested mainly in the Sejm). Consequently, it was decided in the Act of March 11, 2004, that both chambers need to be included in the creation of the principles of parliamentary participation in the development of the Polish position relative to new European laws.
Despite Senate efforts, the Act did not provide for a full "symmetry" between the entitlements of both chambers. That inequality is expressed not only in the Sejm European Affairs Committee having the exclusive right to pass judgment on candidates to certain EU positions but, before all else, in different legislative roles reserved in the constitution for both chambers. The Act on Cooperation of the Council of Ministers with the Sejm and Senate on Issues Associated with the Membership of the Republic of Poland in the European Union weakens the Senate in a particularly strong way. Pursuant to its provisions, only the Sejm European Affairs Committee is entitled to issue an opinion prior to the final examination of a draft law by the Council of the European Union and - most importantly - in practical terms it is the only opinion that the Council of Ministers must take into consideration. Indeed, it was decided that whenever the Council of Ministers fails to consider an opinion of the Sejm European Affairs Committee in its final position, it will have to immediately clarify thereto the reasons behind the resulting discrepancy. On the other hand, the Senate European Affairs Committee does not participate in that procedure; its role, therefore, is limited to providing an opinion to the Council of Ministers, which the government is not obligated to consider.
This is precisely why 75 senators belonging to various political options, in other words three fourths of the entire Senate, filed a motion with the Constitutional Tribunal to examine the constitutionality of premises leading to the restriction of Senate competences. Concurrently, the Senate prepared a legislative initiative aimed at amending those provisions of the discussed Act on Cooperation of the Council of Ministers with the Sejm and Senate on Issues Associated with the Membership of the Republic of Poland in the European Union which were adverse to the upper chamber.
I think, however, that the Polish constitution will need to be supplemented in the near future by a chapter reserved for the terms of Poland's functioning in the European Union. It is only then that we will deal with the most desired situation where the constitutional norm will compel the government to listen to the parliament's opinion and define the forum where that will take place. In turn, norms included in the regulations of both chambers will define the manner of submitting candidatures and selecting parliamentarians - committee members, procedural principles of committee functioning and methods of committee communication with relevant chamber organs and other parliamentary bodies in Poland and abroad.
Independently of these reflections on the functions of the upper chamber, one should particularly stress the importance of the very phenomenon of "europeization" of national parliaments, and, looking at the issue from the opposite side, of "parliamentarization" of European institutions. National parliaments, increasingly engaged in integration processes, and the European Parliament, increasingly involved in making EU-level decisions, constitute a guarantee of the Union not being perceived as an organization governed by bureaucracy in Brussels, but as an authentic community of all citizens of the constituent states. Only when citizens themselves feel that they influence the course of EU affairs - through their representatives in national parliaments and through parliamentarians in Strasbourg - will we be justified to speak of a full success of integration.