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Book Review: Barbara Guastaferro on Nicola Lupo and Cristina Fasone’s “Interparliamentary Cooperation in the Composite European Constitution”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Barbara Guastaferro reviews Nicola Lupo and Cristina Fasone’s book on Interparliamentary Cooperation in the Composite European Constitution (Oxford: Hart 2016)]

Barbara Guastaferro, Research Fellow in Law, Durham Law School and Assistant Professor of Constitutional Law, University of Naples “Federico II”

This edited volume analyses the functioning of inter-parliamentary cooperation in the EU composite constitutional order, providing a bridge between scholars from both legal and political backgrounds and practitioners focused on parliamentary studies. The volume inaugurates a new series on “Parliamentary Democracy in Europe” edited by Nicola Lupo and Robert Schütze for Hart Publishing, aimed at exploring the relationship between European and national Parliaments and, more generally, the new challenges faced by representative democracy in the EU legal order.

The collection, composed of 20 essays plus an introductory and concluding chapter written by the editors, highlights the constitutional significance of inter-parliamentary cooperation as a permanent feature of EU democracy and as a new parliamentary function. The volume also investigates the practical side of this relatively new phenomenon.

Apart from some dated—and to a certain extent institutionalised—forms of interaction among parliaments, such as the Conference of parliamentary committees dealing with EU affairs (COSAC), only the 2009 Treaty of Lisbon provides explicit legal bases for inter-parliamentary cooperation. Article 12 TEU states that national arliaments contribute actively to the good functioning of the Union

by taking part in the inter-parliamentary cooperation between national Parliaments and with the European Parliament, in accordance with the Protocol on the role of national Parliaments in the European Union.

Title II of Protocol No. 1 attached to the Treaty of Lisbon, is indeed devoted to inter-parliamentary cooperation and contains two articles. Article 9 provides that

The European Parliament and national Parliaments shall together determine the organisation and promotion of effective and regular inter-parliamentary cooperation within the Union.

Article 10 states that the COSAC shall

promote the exchange of information and best practice between national Parliaments and the European Parliament, including their special committees. It may also organise inter-parliamentary conferences on specific topics, in particular to debate matters of common foreign and security policy, including common security and defence policy. Contributions from the conference shall not bind national Parliaments and shall not prejudge their positions.

The Lupo-Fasone volume is a bold and unique attempt to account for the development of inter-parliamentary cooperation both in the pre-Lisbon and post-Lisbon eras.

As to the earlier era, Cristina Fasone analyses the evolution of the EU Speakers’ Conference, created shortly before the European Parliament became a directly elected assembly. It was expected to exercise a novel role of coordination and input in the set up of new inter-parliamentary conferences as well as of their rules of procedures.  Also, the role of the COSAC in the Europeanization of national Parliaments and in the evolution of the inter-parliamentary cooperation has been debated since its very first meeting in 1989 (see the chapter by Adam Cygan). The new challenges, the “identity crisis” and the necessity to reshape COSAC as a dynamic venue for inter-parliamentary exchange are well-explained in Part VI of the volume, which collects the contributions of Davide A Capuano, Bruno A Dias Pinheiro, Christiana Fryda, Francisco Gómez Martos, Antonio Esposito, and Mendeltje van Keulen.

As for the present era, part V of the book explores the very recent “experiments” in parliamentary cooperation. The first is the Inter-Parliamentary Conference on Common Foreign and Security Policy, set up in 2012, which stemmed from the new legal basis provided by the Treaty of Lisbon. The chapter by Jan Wouters and Kolja Raube examines the peculiar status of this parliamentary conference in a decidedly inter-governmental domain such as foreign and security policy, assessing if and to what extent cooperation helps the exchange of information among national Parliaments, fosters parliamentary networks to enhance multi-lateral security governance, and increases democratic accountability. The second is the Inter-Parliamentary Conference on Stability, Economic Coordination and Governance in the European Union, established in 2013, which stemmed from Article 13 of the so-called Fiscal Compact (Treaty on Stability, Coordination and Governance in the EMU). This article foresaw that the representatives of the relevant committees of the European parliament and national Parliaments would gather in a conference “to discuss budgetary policies and other issues covered by this Treaty”. The chapter by Ian Cooper criticizes the uncertainty of such a “mandate”, which does not clarify whether the Conference should be a discussion forum or a body exercising a more stringent oversight function upon the executives in a sensitive issue such as economic governance.

The procedural dimension of inter-parliamentary cooperation and its concrete functioning are also explored by analysing the role of national Parliaments in the procedures surrounding the Economic and Monetary Union (see the chapter by Davor Jančić) and in the Early Warning System (EWS) related to subsidiarity scrutiny of EU acts (see the chapter by Marco Goldoni). In the first area, it is argued that national Parliaments have exploited inter-parliamentary cooperation to counter the restriction on their autonomy during the Euro crisis. In the second area, particular emphasis is put on horizontal cooperation among national Parliaments, which becomes necessary to ensure the effectiveness of the EWS—in reaching, for example, the “yellow card” thresholds—but which experiences a tension between individual and collective exercise of a national Parliament’s power in subsidiarity scrutiny.

Besides these chapters focusing on specific policy areas, the core of the book (its third part) is devoted to inter-parliamentary cooperation in the ordinary life of the EU, namely within the EU legislative process. More specifically, this part studies the impact of the inter-parliamentary cooperation on the internal organization of parliaments and of some its constitutive features such as bicameralism (Antonia Barraggia’s chapter), the functioning of Standing Committees (Diane Fromage’s chapter), the role of political groups (Nathalie Brack and Thibaud Deruelle’s chapter), and the role of administrative and bureaucratic offices in supporting cooperation among MPs and MEPs (Andreja Pegan and Anna-Lena Högenauer’s chapter).

Inter-parliamentary cooperation is also tested in the context of the Treaty amendment procedure, both with reference to the recent amendment of Article 136 TFEU, creating a new legal basis to establish a stability mechanism to solve the Greek crisis (Katarzyna Granat’s chapter), and with reference to the Convention method—used for the adoption of the Charter of Fundamental Rights of the EU and of the Treaty establishing a Constitution for Europe—where for the very first time representatives of both national and European parliaments gathered together with representatives of the European executive to revise the Treaties (Cesare Pinelli’s chapter).

The descriptive account of inter-parliamentary cooperation is coupled with two opening chapters which address more theoretical issues such as the role and legitimacy of national and European parliaments within the composite European constitutional order (Leonard Besselink’s chapter) and the comparison between the dialogue and cooperation among national and supranational legislatures and the inter-judicial dialogue (Giuseppe Martinico’s chapter).

The greatest merit of the book is to shed light on a topic which has been significantly underexplored in the scholarly literature for several reasons. First, the proliferation of inter-parliamentary forums and conferences followed lopsided and asymmetrical arrangements without a clear institutional design. Second, these conferences and meetings often lacked transparency and received no media coverage, preventing scholars’ access to accurate information. Third, the outputs of inter-parliamentary cooperation did not have a clear legal or binding effect—neither on the legislature involved nor on external bodies such as executives—thus escaping the attention of lawyers for a long time. Thanks to the efforts of both the editors and the authors involved, many of them practitioners, this book definitely discloses the world of inter-parliamentary cooperation.

Moreover, the choice of the editors to approach the study of inter-parliamentary cooperation in the framework of the “Euro-national parliamentary system” is to be welcomed. Rather than giving a partial picture of how the national and supranational legislatures behave, the interplay with the EU fragmented executive is deemed a pivotal feature for understanding the role of parliaments in the European composite Constitution. For this reason, in the words of the editors, the chosen framework of the “Euro-national parliamentary system” addresses a multiplicity of interactions:

the relationship between each national Parliament and its government; the relationship between national Parliaments that parallels the relationship between national executives; the relationship between the European Parliament and the EU executive; the relationship between the European Parliament and the national Parliaments.

The ambitious intent of the editors is sometimes challenged, due to the inherent difficulties in creating a consistent theoretical framework to address the puzzling issue of parliamentary democracy in Europe. The underlying question of the legitimacy of national Parliaments and its interaction/conflict with the (different) kind of legitimacy of the European parliament and fragmented executive remains unanswered, although deeply problematized in the conclusion to the volume. In this respect, I found this edited book more useful in illuminating the developments in inter-parliamentary cooperation and its implications for the organisation and procedures of national and European parliaments than understanding what would be—also from a normative point of view—the contribution of inter-parliamentary cooperation on the democratic legitimacy of the overall EU composite Constitution.

Suggested Citation: Barbara Guastaferro, Review of Nicola Lupo and Cristina Fasone’s Interparliamentary Cooperation in the Composite European Constitution, Int’l J. Const. L. Blog, Jan. 5, 2017, at http://www.iconnectblog.com/2017/01/guastaferro-on-lupo-and-fasone

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Published on January 5, 2017
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