February 14th, 2016

EU Reform - So How Might A "Red Card" Work?

Since my election to Parliament in 2010, I've been Chairman of the European Research Group - a small group of like-minded MPs looking at how a reformed European Union might work. We all club together and commission high quality research, like the piece below on how a "red card" might work.

Given the ongoing debate about these matters, I thought it would be useful to share some of this research. You'll find it below:


A “Bigger” EU role for National Parliaments - How A "Red Card" might work?

  • “Upgrading” the current little used yellow card, is likely to form the basis for his proposal.

  • There are many ways to strengthen the yellow card ranging from modest improvements through to changes that could give individual or groups of parliaments real power.

  • A simple political agreement to respect the current yellow card system is unlikely to make any meaningful difference.

  • This will not overcome QMV and be unlikely to give individual Parliaments the final say.

David Cameron’s Bloomberg Speech commitment:

“My fourth principle is democratic accountability: we need to have a bigger and more significant role for national parliaments… We need to recognise that in the way the EU does business.”

Conservative Party Manifesto:

“We want national parliaments to be able to work together to block unwanted European legislation.”


What the EU Treaties say at the moment: The ‘Yellow Card Procedure’

The EU Treaties include a procedure whereby if a third of national Parliaments object to a proposal on subsidiarity grounds the originator or the proposal (usually the Commission) has to reconsider their proposal and “may decide to maintain, amend or withdraw the draft.”

This procedure has been used twice, once on the Monti II right to strike, where the Commission withdrew the proposal, (arguable it would have done anyway) and secondly on the formation of the European Public Prosecutor’s Office – where the Commission decided to ignore it.


Current EU legal texts:

Article 5 TEU:

“National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.”

Article 7 of the Protocol on the Application of the principles of subsidiarity and proportionality:

“Where reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed.

“After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.”


What might David Cameron achieve agreement for:

          “Upgrade” the “Yellow Card” to a “Red Card”

One suggestion that has been doing the rounds in EU policy circles is that of a “Red Card”. This could mean a variety of things:

          Weak red card: A political agreement by member states and the EU institutions that the Commission would drop any proposal if the requisite number of national
Parliaments object on subsidiarity grounds.

Weakness 1) The yellow card can only be used if there is a question of subsidiarity, ruling out objections to proposals, however bad, if the Commission has the competence in the area.

Weakness 2) A yellow card can only be used on proposals, not on existing EU law.

Weakness 3) It requires a large number of national parliaments to be able to coordinate action, this is administratively difficult to arrange and does not allow an individual parliament to act.

Weakness 4) A political agreement, would be temporary and would not be enforceable in the ECJ if a future Commission had a different idea.

Weakness 5) The current yellow card only allows for objections to a proposal, not the (often very different) outcome of negotiations between the EU institutions and member states.

  A stronger red card: This would involve Treaty change to allow national Parliaments to block proposals and repeal existing EU laws whether on grounds of subsidiarity or not.

  A strong red card: This would involve Treaty change and give small groups or individual Parliaments the right to block proposals and/or repeal existing legislation.


  1. A new Right of initiation: A  “Green Card: The Dutch parliament has proposed giving groups of National Parliaments the power to propose new policies to the European Commission, as well as propose amendments or repeal of existing EU laws.

  2. A “late Card”: Give national parliaments the right to object to proposals at the end of negotiations between the European Commission, the Council of Ministers and MEPs.

Domestic reforms?

One way to claim the UK Parliament has been given more of a say over EU policy, without having to gain an EU agreement, would be to enact more domestic reforms to the Westminster scrutiny process. A number of them can be seen in this collection of essays including:


  • More Parliamentary oversight of Opt-ins and areas where the UK has a veto

  • More scrutiny of the UK Government’s negotiating positions prior to votes.

  • Placing the scrutiny reserve on a statutory basis.

National Parliaments v European Parliament?

Giving more powers to the national parliaments will not tackle the increased powers of the European Parliament:

Reform Commitment: To review rules on the appointment of the President of the European Commission in 2019.

Following the appointment of Jean-Claude Juncker as President of the European Commission in 2014 David Cameron stated that:

It is therefore important that the European Council has agreed today to review what has happened and to consider how we handle the appointment of the next Commission president next time around.”

Key points:


  • The President of the European Commission is one of the five Presidents of the EU. The European Commission has a near monopoly over proposals for most EU legislation and its repeal.

  • The President is decided by Qualified Majority Voting in the European Council, with the European Parliament having a veto.

  • Post Lisbon the European Parliament has attempted to use its veto to turn the selection into a Presidential Election, with ‘Spitzenkandiates’ (lead candidates) from each group standing on political programmes.

  • Under the Spitzenkandidate process the UK’s influence over the system and ability to produce its own candidate is limited.

  • The European Commission has a dual role overseeing the EU28 as well as policy areas the UK is not a part of such as Schengen and the Euro. This effectively bars the UK from holding the post.

What powers does the President of the European Commission have?

The President of the European Commission is the most powerful EU figure holding a veto over the appointment of the remaining commissioners, deciding their portfolios as well as being in overall control of the EU’s legislative work programme.

The vague wording of the Treaties mean that the power of President of the Commission depends on a number of factors, the personality of the candidate, the level of political support the candidate has in the European Council and the relative strength of the President of the European Council, who chairs the EU28 heads of government meetings.

Giving the President a “democratic” mandate could over time increase its power vis a vi the member states represented in the European Council.

What do the Treaties say?

The appointment of the President of the European Commission is set out in Art 17 TFEU (emphasis added)

“Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.”


What happened in 2014

2014 was the first real test case for these new powers and the political blocks in the European Parliament (with the exception of the ECR group) set out to maximise their influence.

The political blocks appointed their own candidates internally, held ‘Presidential’ hustings and then presented the “winner” of the European Elections to the European Council in a way that made it difficult for the member states to object.

What will happen in 2019 in absence of reform?

If the process is left as it is or is allowed to embed itself the power shift from the member states to the parliament will continue. Within the Parliament the power resides with the main blocks and it is highly unlikely that the main blocks (EPP and S&D) will allow a non “spitzencandidate” through.

The EU’s unanswerable West Lothian Question: Can a non-Euro state candidate become President of the European Commission?

In addition to the process of spitzencandidates disadvantaging the UK there is, with the growth of Eurozone centric legislation and policies, a growing certainty that the President of the European Commission will have to come from a Eurozone state. The European Commission President has the following areas of responsibility over the Eurozone.


  • The appointment of the Economic and Monetary affairs Commissioner (itself a mixed job effectively barred to UK holders).

  • Initiation of financial regulations.

  • Role in bail out Troikas

  • EU budget measures aimed at Eurozone states.

  • The stability and Growth pact.

How might reform be effected?


  1. A political agreement. This would have to bind the main European Council members to not back spitzencandidates or their programmes instead backing their own priorities. This would lead to a struggle with the MEP blocks who would probably go ahead anyway.

  2. Treaty Change. The UK could gain agreement to remove the EP veto from the treaties.

  3. Reduce the role of the President. Remove the President’s role in Commission formation and its monopoly over the initiation of legislation and repeals. This would require treaty change.

Conclusion:

The appointment of the President of the European Commission encapsulates a number of wider issues that could be a problem to the UK in the future as the EU’s post Lisbon architecture puts down roots. The diverging interests of the Euro ins and outs, how to create an EU where there are differing levels of integration but where all members are treated equally and the growing power of the European Parliament, an institution with a weak democratic mandate and which is by its nature supranational rather than inter-governmental.

Trivia: Only British President of the European Commission Roy Jenkins 1977-1981