Monitoring of European affairs by the Assembleia da República
The Assembleia da República (AR) has specific competences in European matters, as attributed by Law no. 43/2006 of 25 August, as amended by Law no. 21/2012 of 17 May, Law no. 18/2018 of 2 May and Law no. 64/2020 of 2 November, and Law No 44/2023 of 14 August – regulating the monitoring, assessment and pronouncement by the Assembleia da República within the scope of the process of constructing the European Union –, by the Constitution itself, and, lastly, arising from the Treaty of Lisbon, which contains a number of innovations on the role of national parliaments in the European Union.
Accordingly, the AR may pronounce itself on matters pending decision in European Union bodies that fall within its reserved legislative responsibility(Article 161(n)of the Constitution) and monitor and assess, per the law, Portugal's participation in the process of constructing the EU (Article 163(f)of the Constitution).
I. Political oversight of the Government within the scope of the European Union
Article 4 of Law no. 43/2006, in its current wording, provides for the means of overseeing Government activity in the field of European affairs by the Assembleia da República, either through debates in Committee or in plenary.
Debates in plenary, in which the Government takes part, take on the following structure:
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Debates to prepare and assess European Councils (twice each semester, with the participation of the Prime Minister);
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Debate at the beginning of each Presidency of the Council of the EU on its priorities;
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Debate on the annual Governmental report on Portugal's participation in the EU;
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Debate on Portugal's participation in Permanent Structured Cooperation;
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Debate on the economic governance instruments that are part of the European Semester, including the Stability and Growth Programme;
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Debate on the State of the Union, following the respective debate in the EP.
Debates in Committee take on the following structure:
- Procedural hearings, at least four times per legislative session with the member of the Government, on the ministerial meetings of the Council of the European Union;
- Hearing in preparation for the European Council, where the plenary debate has not previously taken place;
- Hearings with the member of the Government after each meeting of the European Council to assess its conclusions;
- Joint meetings with members of the Government and other Committees, before or after Council meetings in their different configurations;
- Hearing ahead of the meeting of the Council of Foreign Ministers on Permanent Structured Cooperation;
- Debate in the presence of the member of Government on the European Commission Work Programme;
- Hearing of persons nominated or appointed by the Government for positions in European Union institutions, bodies, or agencies;
- Hearings at the request of parliamentary groups;
- Hearing of the ambassador of the Member State holding the Presidency of the Council to express their views on the priorities.
II. Scrutiny of European initiatives
Law no. 43/2006, in its current wording, provides that the AR also pronounces itself on other initiatives run by European institutions (Article 1-A), in particular on the compliance of EU legislative proposals with the principle of subsidiarity (Article 3), listing the parliamentary scrutiny process, which can be summarised as follows:
As shown in the flow diagram above, the AR - via the European Affairs Committee (EAC) - receives the initiatives emerging from the European institutions and then, depending on their subject matter, refers them to the competent parliamentary committees, which may decide to draft a report. Similarly, where the subject matter addressed by the European initiative falls within the competence of the Legislative Assemblies of the Autonomous Regions, the latter should be consulted. Where the initiatives fall within the sphere of the AR's exclusive legislative competence, the Government must inform the Assembleia da República and request an opinion, wherefore the Government must, in good time, provide the AR with information containing a summary of the draft or proposal, an analysis of its implications and, if one has already been set out, the position which the Government wishes to adopt.
When the competent parliamentary Committees approve a report, it is sent to the EAC, which then drafts a final opinion in which it pronounces itself on the compliance of the European initiative with the principle of subsidiarity and reflects any concerns about the substance of the proposal expressed by the Committee responsible for the matter in question. This opinion is considered and voted on in an EAC meeting.
Finally, the opinion approved by the EAC, together with the report drafted by the competent parliamentary Committee, is sent to the European institutions and the Government and made available on the IPEX website, alongside the pronouncements of the other European Union parliaments.
In the event that the proposal under consideration is deemed to breach the principle of subsidiarity or has politically important implications for Portugal, the EAC may draw up a draft resolution for submission to the plenary for discussion and voting.
The scrutiny of European initiatives described above must be completed within eight weeks, as established by the Treaty of Lisbon, where the pronouncement by national parliaments on the compliance of draft legislative acts with the principle of subsidiarity is involved and can result in the following procedures:
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"Yellow card" procedure: in the event of reasoned opinions being issued by at least one-third of the national parliaments, the European Commission is forced to review its proposal and may decide to maintain, amend or withdraw the draft legislative act, justifying whichever decision is taken;
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"Orange card" procedure: if reasoned opinions are issued by a majority of national parliaments and the draft act is included in the ordinary legislative procedure[1], the Commission shall review its proposal and may decide to maintain, amend or withdraw its draft. If the Commission decides to maintain the legislative proposal, it must justify its decision to the European Parliament and the council as to why the proposal complies with the principle of subsidiarity. However, if a simple majority of the members of the European Parliament or 55% of the members of the Council consider that the legislative proposal does not comply with the principle of subsidiarity, the legislative proposal shall be withdrawn[2].
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"Red card" procedure: Pursuant to protocol 2(8) of the Treaty on the Functioning of the European Union, the Court of Justice of the EU has jurisdiction in actions brought by a member state or on behalf of its national parliament on the grounds of infringement of the principle of subsidiarity.
It should also be mentioned that since the entry into force of Law no. 43/2006 of 25 August, as amended by Law no. 21/2012 of 17 May, Law no. 18/2018 of 2 May and Law no. 64/2020 of 2 November, and Law No 44/2023 of 14 August, the AR has successfully implemented a methodology for the systematic monitoring of European initiatives, which has generated important internal momentum involving the EAC and the standing parliamentary Committees.
As part of this consideration process, the Assembleia da República holds hearings with members of the Government, Members of the European Parliament, Commissioners, civil society, or others to discuss the content of certain European initiatives, cultivates a close relationship with the Permanent Representation of Portugal to the EU, so contributing to the formation of Portugal's position on a wide range of issues.
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[1]
The ordinary legislative procedure consists of the joint adoption by the European Parliament and the Council of a regulation, directive or decision, on a proposal from the Commission (article 294.TFEU).
[2] To date, the "orange card" procedure has never been used, and the "yellow card" procedure has been triggered three times, in 2012 for a proposal for a regulation on the exercise of the right to take collective action, with the Assembly of the Republic adopting a resolution on the infringement of the principle of subsidiarity by this proposal, in 2013 for the proposal for a regulation establishing the European Public Prosecutor's Office, with the European Commission maintaining its proposal, and in 2016 for the Commission's proposal to review the posting of workers Directives.