Early Reflections On the Early Warning Mechanism: Assessing National Parliaments' Influence On EU Legislation After Lisbon

The Treaty of Lisbon was intended to alleviate the European Union's (EU's) democratic deficit in part by creating the Early Warning Mechanism (EWM), which empowered national parliaments (NPs) to intervene in the EU’s legislative process.  It took 2.5 years for NPs to issue their first “yellow card” under the EWM when, in May 2012, more than one third of NPs raised formal subsidiarity-based objections to a controversial Commission proposal regarding the right to strike.  In the face of such opposition, the Commission withdrew the proposal in September 2012.  Depending on one’s point of view, this episode might be taken as evidence either of NPs’ influence or their impotence.  On one hand, it shows unequivocally that NPs have had an effect on EU legislation in at least one instance;  on the other hand, one might well conclude from the overall record of the EWM – that over this period it yielded only one yellow card and no orange cards (which require a majority of NPs to raise subsidiarity-based objections) – that it has been, on balance, a failure.

In this paper I argue that the best measure of the influence of NPs after Lisbon is whether they have affected legislative outcomes, regardless of the number of yellow or orange cards.  I undertake a process-tracing analysis of a handful of recent legislative proposals which received a large number of objections from NPs – not only the proposal which received the yellow card but others which fell short of that threshold.  It is too soon to know the final legislative fate of these proposals, but in a number of cases it may be seen that the opinions of NPs (not only concerning subsidiarity, but also proportionality and policy) have been influential on subsequent deliberation on the measures in EU institutions, in particular in the Council.  This influence was apparent in the case of legislative proposals regarding seasonal workers, border controls, and deposit guarantee schemes.  These cases demonstrate that even outside of the single yellow card indicent, NPs are making their influence felt in more subtle ways. Thus while it is too soon to draw a definitive conclusion, the EWM has had more of an impact than has been generally recognized.