The Czech Republic, along with nine other states, became a member of the European Union on 1 May 2004. This was the climax of almost fifteen years of efforts to integrate into the European structures, initiated soon after the November revolution in 1989.
Already during the preparations for membership of the Czech Republic in the European Union, the Chamber of Deputies was involved in the discussions on the issues related to integration. On the basis of the so-called European Association Agreement negotiated in 1993 and entering into force in February 1995, the Parliamentary Association Committee was created, which served as a forum for the exchange of views between the members of the Parliament of the CR on the one hand and the members of the European Parliament on the other.
After the elections in 1998, a key player in European affairs was the newly established Committee for European Integration. Its main task was to monitor the process of transposition and implementation of European legislation in the Czech Republic. In the final phase of the preparations for membership in the European Union, also most of the discussions on the form of parliamentary oversight of European affairs and on the relationship between the government and the Parliament in implementing this oversight took place on the grounds of the Committee for European Integration. The past experience of the fifteen states that were then EU members served as a guide.
Parliamentary oversight of European affairs has a different form in each member state, reflecting the local customs and the constitutional traditions of that state. The choice of the model for the involvement of the national parliament in the discussion of European affairs is thus a purely national matter. In general, it is possible to distinguish between member states whose Parliament has a strong influence on the position of their government and states where this influence is weaker.
The states whose parliaments may exercise a veto and enforce changes to the position of their government held in EU structures include primarily Denmark, Austria and Finland. The opposite model is implemented especially in the countries of southern Europe, whose parliaments can neither influence nor reject the position of their government in discussions in the Council of the EU.
At the level of the European Union, the role of national parliaments in European law making was first addressed in the Maastricht Treaty. The Declaration (No. 13) on the Role of National Parliaments called on governments to ‘ensure, inter alia, that national parliaments receive Commission proposals for legislation in good time for information or possible examination’. The subsequent Treaty of Amsterdam already contained the Protocol on the Role of National Parliaments in the European Union, which provided the basic rules for keeping national parliaments informed of EU developments, including rules for the delivery of legislative proposals. In addition, it also provided for inter-parliamentary cooperation between national parliaments. The Protocol further emphasised, among others, that ‘the way in which national parliaments scrutinise their governments in relation to the activities of the Union is a matter for the particular constitutional organisation and practice of each member state’.
The role of national parliaments was further strengthened by the Treaty of Lisbon, which allowed national parliaments to participate in EU affairs in several areas. The most important of these is the role of national parliaments as guardians of the subsidiarity principle in the legislative process of the EU in areas that do not fall within the exclusive competence of the Union. The Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality gives a national parliament or a chamber thereof a period of ‘eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union,’ for the adoption of ‘a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity’. If the number of such reasoned opinions reaches a specified quorum, the proposal must either be re-examined (‘yellow card’) or it may even be rejected by the Council or the European Parliament (‘orange card’).
In addition, the Treaty of Lisbon inserted a new Article 12 into the Treaty on European Union, which for the first time explicitly enshrines the role of national parliaments in actively contributing to the good functioning of the Union. In addition to subsidiarity control, this includes the right to be informed by the institutions of the Union and to receive draft legislative acts of the Union, participation in the revision of the EU’s founding treaties, and involvement in the political scrutiny of the activities of Europol and in the evaluation of the activities of Eurojust. Last but not least, national parliaments ‘contribute actively to the good functioning of the Union’ by participating in inter‑parliamentary cooperation between the European Parliament and national parliaments, either through permanent bodies such as the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) or various ad hoc meetings.
The Czech Republic has selected the model of a moderate oversight role of the Parliament with respect to the government, grounded in the information obligations of the government towards the parliament. As a consequence of the constitutional principle of the accountability of the government to the Chamber of Deputies, a stronger oversight function has been implemented in the case of the Chamber of Deputies than in the case of the Senate.
The constitutional basis for the involvement of both chambers of the Czech Parliament in the oversight of the creation of European legislation is Article 10b of the Constitution of the Czech Republic, adopted within the ‘Euro-Amendment’ of the Constitution already in 2001. Its wording establishes the obligation of the government to inform the Parliament regularly and in advance on issues related to the obligations arising for the Czech Republic from its membership in an international organisation or institution. One such international organisation is the European Union. The specification of the method of expression by the two chambers of the Parliament has been left by the Constitution to their Rules of Procedure.
An amendment to the Rules of Procedure of the Chamber of Deputies, provided for by the Constitution, came into force just after the accession of the Czech Republic to the European Union on 7 May 2004. On the basis of this amendment, the European agenda was newly included among the exhaustively defined competences of the Chamber of Deputies and the Rules of Procedure were supplemented by a section on the method of discussing issues of the European Union. The key role in the parliamentary oversight fell to the Committee for European Integration, renamed the Committee for European Affairs, which became one of the seven statutory committees. The provisions of the Rules of Procedure relating to the European agenda took their current form after the amendment in 2009 in response to the strengthening of national parliaments by the Treaty of Lisbon.
The discussion of EU Issues contained in Section 15 A of the Rules of Procedure of the Chamber of Deputies regulates not only the discussion of the actual draft acts and other documents of the European Union, but also the discussions of the position of the government at meetings of the Council and the personal nominations for the Czech Republic to European institutions. In all three of these areas, the Rules of Procedure have entrusted the decisive role to the Committee for European Affairs.
Draft legislative acts and other documents of the European Union are presented to the Committee for European Affairs by the government along with its standpoint. The distinction between legislative acts of the Union and other EU documents is also contained in Article 2 of the Government Directive on the Procedure for Handling Documents of the Council and Other Documents of the European Union, a key document by which the government has regulated its internal mechanism for cooperation with the Parliament of the CR. The Directive regulates the procedure for ministries and other bodies of state administration when handling documents of the Council and other EU documents and when discussing EU issues in the Senate and the Chamber of Deputies. What is essential for the deliberations in the Chamber of Deputies is the definition of a legislative act as a legal act in accordance with Article 289(3) of the Treaty on the Functioning of the European Union in Article 2 of the Directive, determining the deadline for the obligation of the government to present its preliminary opinion on the drafts. Since the Rules of Procedure do not specify a time limit for the presentation of such an opinion, the Government Directive on the Procedure for Handling Documents of the Council and Other Documents of the European Union imposes an obligation on the government, or the party responsible, to prepare an opinion (referred to as a ‘framework position’) on each draft legislative act. The deadline for the preparation of a framework position is fifteen working days from being authorised. For a document other than a draft legislative act, the party responsible prepares a framework position only if the Chamber of Deputies or the Senate decides to discuss the document, namely within fifteen working days of receipt of the request for an opinion. Framework positions are submitted to the Chamber of Deputies by being entered into the relevant ISAP database. At the level of the government, the compliance with the obligations of the individual parties responsible for the timely preparation of framework positions for the Parliament is overseen by the Compatibility Department of the Office of the Government.
The Committee for European Affairs discusses draft legislative acts and documents without undue delay. The discussion takes place on the basis of a preliminary opinion of the government and a report from the rapporteur. The discussion results in the adoption of a resolution by the committee. Considering its function as the guarantor of the monitoring and evaluation of all the documents sent by the government, the Committee for European Affairs may decide to refer a draft act or other document for discussion to another committee responsible. The Chairperson of the Committee for European Affairs or the chairperson of the committee responsible then refers the resolution adopted to the Speaker of the Chamber of Deputies. Within eight days from the adoption of the resolution, he or she may also ask the Speaker to place the resolution on the agenda of the plenary. This request may also be made by the government. Because of the large number of drafts presented primarily by the Commission each year, this procedure is used only exceptionally – for acts of key importance. Its frequent and consistent implementation would, in effect, paralyse the functionality and effectiveness of the parliamentary scrutiny of European affairs.
For this reason, a legal fiction is constructed in the Rules of Procedure of the Chamber of Deputies, according to which a resolution of the Committee for European Affairs is considered to be an expression of the Chamber of Deputies unless the resolution of the committee is included in the agenda of the next meeting of the Chamber of Deputies. The government is obliged to take such an expression of the Chamber of Deputies into account when formulating its position during discussions in EU institutions.
In this conception, the legal regulation of the position of the Committee for European Affairs becomes particularly important in situations where the committee, as the ‘guardian’ of the compliance of draft EU legislative acts with the principle of subsidiarity, decides that a particular draft legislative act violates the principle of subsidiarity and adopts a reasoned opinion on it, which must be done within the eight-week time limit set by EU primary law.
Resolutions of committees or of the Chamber of Deputies along with draft legislative acts and EU documents are made available to the public on the internet in a special ‘EU Documents’ database. The Committee for European Affairs thus endeavours to increase the transparency of the European agenda and make it more accessible to the citizens.
The communication between the Committee and the government should, however, not end with the adoption of the resolution on a bill being discussed. The bill may undergo substantial changes during discussions in the working groups of the Council and its final form may significantly differ from the one agreed on in the committee. Therefore, the Rules of Procedure confer on the Committee for European Affairs the important right to request before a meeting of the Council the presence of a member of the government who is going attend it. The member of the government is obliged to attend the committee meeting and provide information on the position which the Czech Republic will assume on the given issue at the meeting of the Council. This arrangement may also serve as an instrument for the monitoring and control of how the government has taken into account potential previous expressions of the Chamber of Deputies on a particular issue.
The Rules of Procedure also provide that the government will not assume a final position at the discussions of the Council until the above-mentioned procedure for the consideration of a legislative or other act has been completed in the Chamber of Deputies. This is a classic institution of parliamentary scrutiny of the European agenda, referred to as a parliamentary proviso. Its aim is to reach a consensual position that would reflect the interests of the Czech Republic, represented by the government and supported by the Parliament, at the Council’s meetings.
A specific area of the activities of the Committee for European Affairs are the personnel nominations on behalf of the Czech Republic for the post of European Commissioner, Judge of the European Court of Justice, and nominations to the bodies of the European Investment Bank and the European Bank for Reconstruction and Development. The committee discusses these nominations before the government takes a final decision on them.
The amendment to the Rules of Procedure adopted in connection with the entry of the Treaty of Lisbon into force has introduced several new features in the section devoted to the discussion of European affairs. In addition to the above-mentioned possibility for the Chamber of Deputies to adopt a resolution containing a reasoned opinion stating why it considers that a draft legislative act does not comply with the principle of subsidiarity, the provisions of Section 15A have been enriched by a regulation on an action for infringement of the principle of subsidiarity by an act of the European Union in reaction to Article 8 of the Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality, which gives the Court of Justice of the EU jurisdiction to rule on actions brought under Article 263 of the Treaty on the Functioning of the European Union by a Member State on behalf of its national parliament or a chamber thereof.
Whereas the institution of an action for infringement of the principle of subsidiarity by an EU act under Article 8 of Protocol No. 2 has not yet been invoked, the second novelty, in the form of the prior consent of the Chamber of Deputies, is activated on average once a year (four times in the seventh as well as eighth terms of office). Its purpose is to ‘compensate’ for the decline in the international-treaty capacity of the Chamber of Deputies in cases where the Treaty of Lisbon allows for the amendment or supplementation of the founding treaties on the basis of evolutionary, transitional and self-amendment provisions, i.e. without the need for ratification by the member states, or where a particular legal act necessary to achieve one of the objectives set out in the Treaties is to be adopted under Article 352 of the Treaty on the Functioning of the European Union, without the Treaty providing the necessary powers to do so, and where it is not a measure necessary for the functioning of the internal market. To this end, the Rules of Procedure provide in Article 109i(a)–(f) an exhaustive list of cases in which the Government of the Czech Republic cannot give its consent when voting at the European Council or the Council of the EU without the prior consent of the Chamber of Deputies.
It is clear that the Constitution as well as the Rules of Procedure of the Chamber of Deputies entrust the Chamber of Deputies, specifically its Committee for European Affairs, with relatively significant powers in the area of the European agenda. It would not be possible to exercise these powers without the high-quality professional base ensured by the secretariat of the committee in close cooperation with the Parliamentary Institute. The systematic processing of information and documents provided by the government and European institutions is a prerequisite for the effective involvement of the national parliament in the discussion of European affairs.
In contrast to the relatively brief regulation of the discussion of European Union issues in the Rules of Procedure of the Chamber of Deputies, the Rules of Procedure of the Senate have been amended more extensively and in greater detail in connection with membership of the Czech Republic in the EU. On the basis of this amendment, a key role in EU affairs has been given to the committees in charge, namely the Committee on EU Affairs, which replaced the Committee for European Integration, and the Committee on Foreign Affairs, Defence and Security. The fundamental difference from the regulation of the discussion of European affairs in the Chamber of Deputies is the absence of the fiction of a plenary opinion, which means that the only relevant output, both for the government and the European institutions, is the resolution of the Senate’s plenary.