File n° 52 

I. –  PARLIAMENTARY INTERVENTION at the stage
of the formulation of community instruments

1. – The procedure of article 88-4 of the Constitution

Introduced into the Constitution in 1992, on the occasion of the constitutional revision prior to ratification of the Maastricht Treaty, then amended in 1999 as part of the ratification process of the Amsterdam Treaty, Article 88-4 has given the French Parliament specific means of monitoring European affairs.

This constitutional provision requires the Government to lay before the National Assembly and the Senate any drafts of or proposals for instruments of the European Communities or the European Union containing provisions which are matters for statute, as soon as they have been transmitted to the Council of the European Union. It is a matter for the Conseil d'Etat to decide on the statutory character or not of a draft of or a proposal for a Community instrument. However, since the constitutional amendment of January 25, 1999, the Government has also had the possibility of laying before the assemblies, European texts which, though not statutory in character, can be considered as likely to give rise to Parliament taking a position. This is the “optional clause” added to the “mandatory clause” on drafts of or proposals for European instruments containing provisions which are matters for statute.

The circular signed by the Prime Minister in November 20, 2005, has extended this “optional clause” to any drafts of European instruments which, whilst they are not matters for statute, belong to the co-decision procedure.

a) The Examination and Monitoring Role of the committee in charge of European affairs

The committee in charge of European affairs of the National Assembly examines all drafts of or proposals for European instruments which the Government submits to Parliament in application of Article 88-4 of the Constitution (see articles 151-1 to 151-4 of the Rules of Procedure of the National Assembly).

European texts which are matters for statute are printed and distributed in a specific series of parliamentary documents bearing the letter "E" (for Europe) followed by a number corresponding to the order of arrival of proposals. Approximately 300 European texts are thus submitted annually to the committee on which it is required to take a position.

Texts deemed of minor importance or that do not involve any specific difficulty are placed under point A of the committee's agenda, which means that they are approved without debate. For each of these, an information sheet is sent to the committee members approximately one week before the date of the meeting during which they are considered as approved, unless a committee member voices his disagreement. In this case, the committee does not take a position until after a debate between its members.

The other texts, placed under point B of the agenda, are presented orally by the Chairman of the committee or a specially appointed rapporteur who states the content and the explanatory memorandum of the draft European instrument, any feedback, compliance with the subsidiarity principle, and the legal basis adopted as well as the probable schedule for its examination. The examination sheets of all the E documents (examined under point A and point B) are regularly published as part of the committee's “balai” reports (information reports on texts laid before the National Assembly in application of Article 88-4 of the Constitution).

As regards each of the texts which it so examines, the committee in charge of European affairs can decide:

― To approve the draft of or the proposal for a Community instrument;

― To defer taking a decision when it feels it lacks information to assess the scope of the text and it may possibly appoint an information rapporteur tasked with completing the examination of the document;

― To oppose the adoption of the draft of or the proposal for a Community instrument. Its decision may be accompanied by:

·    The adoption of conclusions (text of a political character expressing the committee’s point of view);

·    The adoption of a motion for resolution which, as it expresses a position of the National Assembly, in application of Article 88-4 of the Constitution, will be communicated to one of the six standing committees.

b) The “Parliamentary Scrutiny Reserve” Mechanism

The idea of parliamentary scrutiny reserve was introduced by the Prime Minister's circular of July 19, 1994 on the factoring of the position of the French Parliament into the formulation of Community instruments. It means that the National Assembly and the Senate are entitled to vote - for or against - a proposal for an instrument before its adoption by the Council of Ministers of the European Union. The Prime Minister's circular of December 13, 1999, in its turn, lays down that the Government must allow a minimum one-month period from the transmission to Parliament of a draft of or a proposal for a Community instrument. This one-month period is part of the six-week interval, laid down by the protocol on the role of national parliaments, appended to the Amsterdam Treaty, during which the Council of the Union cannot adopt a common position or a decision with respect to a legislative proposal received from the Commission.

There is however an emergency examination procedure which allows the Government to ask the Chairman of the committee in charge of European affairs to reach a decision on a draft European instrument, without convening the committee, when the Community schedule requires the urgent adoption of a text.

c) The Adoption of Motions Concerning Drafts or Proposals for European Instruments

Whilst the adoption of conclusions only expresses the position of the committee in charge of European affairs, motions for resolution express that of the National Assembly as a whole. It is for this reason that the committee in charge of European affairs can only adopt motions for resolution which are subsequently sent for examination to one of the six standing committees. This committee is required to take a decision within one month of the said referral.

The standing committee than appoints its own rapporteur and takes a position on the committee's motion for a resolution which it can adopt as such, amend or reject. Within eight days following the distribution of the committee's report, the motion for a resolution can be included on the agenda of the National Assembly, upon the request of a group chairman, a committee chairman, the Chairman of the committee or the Government. If no request for inclusion on the agenda is made, the text adopted by the committee responsible is considered final and transmitted to the Government. Such motions have a political scope; they are not legally binding on the Government but the latter must take them into account at Community negotiations.

In all cases, motions adopted by the Assembly are published in the Journal Officiel (“Laws and Decrees” edition).

In addition, they must be systematically annexed to parliamentary reports on a Government or Members’ bill dealing with areas covered by European Union activity, in addition to information about existing or proposed European law, so as to recall the positions already taken by the National Assembly on the subject.

The committee does not however have the sole right of initiative to table motions for resolutions, which is also an individual right enjoyed by each M.P.

2. – The implementation and scope of article 88-4 of the Constitution

Between June 25, 1992 and March 2007, the National Assembly adopted 166 motions on drafts or proposals for European instruments.

Statistics show that the majority of these motions were passed during the first years of the implementation of Article 88-4 of the Constitution: 74 under the X^th Parliament, 51 under the XI^th Parliament and 41 between 2002 and March 2007.

On the contrary, the number of conclusions adopted by the committee in charge of European affairs  on documents submitted by the Government, in accordance with article 88-4, is increasing: 18 during the XI^th Parliament (1997-2002) and 77 under the XII^th Parliament. The examination of motions for resolution in plenary sitting is becoming more and more unusual: 33 motions were adopted in plenary sitting during the X^th Parliament, as opposed to 8 during the XI^th Parliament and only 6 for the XII^th Parliament.

The use of Article 88-4 of the Constitution represents the contribution of Parliament to the formulation of the French position during the negotiations within the Council. The European Parliament represents the peoples of the European Union but the Council is the product of the States and this thus justifies the Government taking into consideration the positions adopted by Parliament which is the expression of national sovereignty.

In practice, however, the motions adopted by the National Assembly have a variety of impacts according to the subject:

― They may strengthen the Government’s position, enabling it to use a parliamentary motion to defend its position, particularly in the case of issues of national interest, such as public services, the common agricultural policy or even the position of the French language within the institutions of the European Union;

― They may modify the Government’s position when Parliament adopts a position, which while not being opposed to that of the Government, may be slightly more bold;

In any case, the parliamentary motions which follow Article 88-4 are not legally binding and may have only a political impact. France does not implement the practice of “the negotiation mandate”, which applies in Scandinavian countries and according to which the Government is bound by the Parliament’s position.

II. –  the widening of the interest of the National Assembly for Europe

During the XII^th Parliament, some initiatives have been taken to strengthen the links between the National Assembly and Europe.

Since January 2003, among the questions asked to the Government, the first four questions of the sitting on the first Wednesday of each month have to deal with European themes.

A public debate in the Chamber is systematically organised before each meeting of the European Council.

Lastly, a permanent administrative office has been set up in Brussels. Its main role is to strengthen the provision of information to parliamentarians on the activities of the institutions of the Union, to increase their interest for Europe (by organising working meetings in Brussels and Strasbourg) and to encourage inter-parliamentary cooperation. This administrative office is at the disposal of both the bodies of the National Assembly and all M.P.s.