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The Commission’s Power to Withdraw Legislative Proposals and its ‘Parliamentarisation’, Between Technical and Political Grounds

Published online by Cambridge University Press:  04 July 2018

Abstract

European Commission – Monopoly on legislative initiative – Power to withdraw legislative proposals, as recognised and limited by the Court of Justice – Interinstitutional Agreement on Better Law-Making – European Parliament Rules of Procedure – Interinstitutional programming procedures – Technical and political usages of the withdrawal – Question of confidence in national parliamentary systems – National Parliaments and Early Warning System – Parliamentarisation of the decision to withdraw – Principle of institutional balance

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Articles
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© The Authors 2018 

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Footnotes

*

Full Professor of Public Law and Director of the Centre for Parliamentary Studies LUISS University, Rome. The author would like to thank the reviewers as well as Robert Bray for their comments on previous versions of this article.

References

1 See Gianfrancesco, E., ‘Article 17’, in H.J. Blanke and S. Mangiameli (eds.), The Treaty on European Union (TEU). A Commentary (Springer 2013) p. 681 Google Scholar, specifically at p. 699 ff.

2 Inter alia, see Rasmussen, A., ‘Challenging the Commission’s right of initiative? Conditions for institutional change and stability’, 30(2) West European Politics (2007) p. 244 CrossRefGoogle Scholar; P. Ponzano et al., The Power of Initiative of the European Commission: A Progressive Erosion?, Notre Europe, no. 89, 2012, spec. 43 ff; Kreppel, A. and Oztas, B., ‘Leading the Band or Just Playing the Tune? Reassessing the Agenda-Setting Powers of the European Commission’, 50 Comparative Political Studies (2017) p. 1118 CrossRefGoogle Scholar ff.

3 See A. Tajani et al., Activity Report on the Ordinary Legislative Procedure (4 July 2014 - 31 December 2016), PE 595.931, 2017, available at <www.epgencms.europarl.europa.eu/cmsdata/upload/7c368f56-983b-431e-a9fa-643d609f86b8/Activity-report-ordinary-legislative-procedure-2014-2016-en.pdf>, visited 18 April 2018.

4 On the alternative between positive/negative integration see, recently, Schuetze, R., From International to Federal Market. The Changing Structure of European Law (Oxford University Press 2017)CrossRefGoogle Scholar.

5 To use the title of Chang, M. and Monar, J. (eds.), The European Commission in the Post-Lisbon Era of Crises. Between Political Leadership and Policy Management (Peter Lang 2013)CrossRefGoogle Scholar. See also Jacqué, J.P., ‘Lost in Transition: The European Commission between Intergovernmentalism and Integration’, in D. Ritleng (ed.), Independence and Legitimacy in the Institutional System of the European Union (Oxford University Press 2016) p. 15 CrossRefGoogle Scholar. On how the Commission perceives itself cf Kassim, H. et al., The European Commission of the Twenty-First Century (Oxford University Press 2013) p. 130 CrossRefGoogle Scholar ff.

6 On the origins of the Spitzenkandidaten practice see Priestley, J. et al., The Making of a European President (Palgrave MacMillan 2015)Google Scholar. On its first effects, with different approaches, Hobolt, S.B., ‘A Vote for the President? The Role of Spitzenkandidaten in the 2014 European Parliament Elections’, 10 Journal of European Public Policy (2014) p. 1528 CrossRefGoogle Scholar; Fabbrini, S., ‘The European Union and the Puzzle of Parliamentary Government’, 5 Journal of European Integration (2015) p. 571 CrossRefGoogle Scholar; Goldoni, M., ‘Politicising EU Lawmaking? The Spitzenkandidaten Experiment as a Cautionary Tale’, 3 European Law Journal (2016) p. 279 CrossRefGoogle Scholar; Christiansen, T., ‘After the Spitzenkandidaten: fundamental change in the EU’s political system?’, 39 West European Politics (2016) p. 992 CrossRefGoogle Scholar; Kassim, H., ‘What’s new? A first appraisal of the Juncker Commission’, 16 European Political Science (2017) p. 14 CrossRefGoogle Scholar.

7 The Spitzenkandidaten procedure has been qualified, although critically, as a constitutional convention by P.W. Post, The Spitzenkandidaten Procedure. Genesis and Nemesis of a Constitutional Convention?, LLM Thesis, Leiden University, 2015, available at <njb.nl/Uploads/2015/9/LLM-Thesis---LLM-European-Law---Paul-W.-Post.pdf>, visited 18 April 2018). More recently, see the Commission Recommendation (EU) 2018/234 of 14 February 2018 on enhancing the European nature and efficient conduct of the 2019 elections to the European Parliament (OJ L 45, 17.2.2018, p. 40), much more explicit, on the point, than the previous one (Commission Recommendation 2013/142/EU of 12 March 2013 on enhancing the democratic and efficient conduct of the elections to the European Parliament (OJ L 79, 21.3.2013, p. 29)).

8 See, among many, Puetter, U., The European Council and the Council. New Intergovernmentalism and Institutional Change (Oxford University Press 2014)CrossRefGoogle Scholar.

9 On the contrary, in the case of non-legislative acts, the criterion is inverted, as, according to the following sentence, the Commission’s initiative needs to be specifically provided for by the Treaties.

10 For an accurate reconstruction of the exceptions, already existing in the Treaty of Rome and added with the Treaty of Maastricht and then with the Treaty of Lisbon inter alia in judicial cooperation in criminal matters and police cooperation (Art. 76 TFEU: allowing also a quarter of the Member States to initiate EU legislation), see Ponzano, supra n. 2, p. 8 and L. Guilloud-Colliat, ‘Rapport Union Européenne’, in L’initiative de la loi (ForInCip 2017) p. 181 ff.

11 See Konstadinides, T., Division of Powers in European Union Law: The Delimitation of Internal Competence Between the EU and the Member States (Kluwer 2009) p. 63 Google Scholar; Costa, O. and Brack, N., How the EU Really Works (Ashgate 2014) p. 73 Google Scholar.

12 Ponzano, supra n. 2, p. 7.

13 On the choice of the legal basis as based on objective factors see Leino, P., ‘The Politics of Efficient Compromise in the Adoption of EU Legal Acts’, in M. Cremona and C. Kilpatrick (eds.), EU Legal Acts. Challenges and Transformations (Oxford University Press 2018) p. 30 at p. 35Google Scholar.

14 Bouwen, P., ‘The European Commission’, in D. Coen and J. Richardson (eds.), Lobbying the European Union. Institutions, Actors, and Issues (Oxford University Press 2009) p. 19 Google Scholar.

Furthermore, this Treaty provision is relevant also in drawing the distinction between items that can be included among those to be approved without discussion (A items) and those on which a discussion will take place (B items). According to Art. 3(8) of the Council rules of procedure, in fact, an ‘A’ item shall be withdrawn from the agenda, unless the Council decides otherwise, if […] a member of the Council or the Commission so requests’.

15 Lenaerts, K. and Van Nuffel, P., European Union Law (Sweet & Maxwell 2011) p. 660 Google Scholar (also for references to the limited exceptions to this rule). On possible ways of circumventing this rule through early agreements with the Parliament see Corbett, R. et al., The European Parliament (Harper 2016) p. 280 Google Scholar.

16 Comments on the Council’s Rules of Procedure, General Secretariat of the Council, Brussels, 2016, p. 53 ff, available at <www.consilium.europa.eu/media/29824/qc0415692enn.pdf>, visited 18 April 2018. For the case law of the Court of Justice see ECJ 5 October 1994, Case C-280/93, Germany v Council, para. 36.

17 See ECJ 6 September 2017, Joined Cases C-643/15 and C-647/15, Slovak Republic and Hungary v Council, paras. 177-189 (referring to the judgment in Case C-409/13), also quoting Art. 13 of the Commission’s Rules of Procedure: if ‘interpreted in the light of the objective of Article 293(2) TFEU of protecting the Commission’s power of initiative’, it follows ‘that the College of Commissioners may authorise one or more of its Members to amend, in the course of the procedure, the Commission’s proposal within the limits that the College has previously defined’.

18 See A. Rasmussen, supra n. 2, p. 246 ff (stressing the importance of the additional rights that ‘aim to protect the proposals throughout the policy process once introduced’).

19 The expression ‘constitutional basis’ is not used by the judgment, but appears in the Opinion of AG Jääskinen (delivered on 18 December 2014: points 36 and 52). According to this Opinion, moreover, the dispute itself is ‘constitutional in nature’ (point 1).

20 As remarked by Adam, R., ‘Il potere di iniziativa della Commissione e il processo decisionale: il difficile equilibrio tra ritiro della proposta e potere decisionale’ [The Commission’s Power of Initiative and Decision-making Process: The Difficult Balance Between Withdrawal and Decision Power], in A. Tizzano (ed.), Verso i 60 anni dai trattati di Roma. Stato e prospettive dell’Unione europea [Towards 60 Years of the Treaties of Rome: State and Perspectives of the EU] (Giappichelli 2016) p. 21 at p. 24Google Scholar.

21 Adam, R. and Tizzano, A., Manuale di diritto dell’Unione europea [Handbook of EU Law] (Giappichelli 2014) p. 200 Google Scholar ff, arguing that in this case the Commission would be guilty of a ‘sviamento di potere’ (détournement de pouvoir, usually translated as ‘misuse of power’).

22 See the Opinion of the Advocate General, stating that ‘the power of withdrawal stems from the role conferred on the Commission in the context of the legislative process […] not merely as the body which will in the future implement the legislative provisions to be adopted by the Parliament and the Council, but also as the custodian of the general interest of the European Union’.

23 ECJ 14 April 2015, Case C-409/13, Council v Commission, para. 75.

24 For the peculiarity of the case at stake see Ninatti, S., ‘Un conflitto tra Consiglio e Commissione: la conferma del ruolo della Corte come arbitro dell’equilibrio istituzionale nella forma di governo dell’Unione’, 35(1) Quaderni costituzionali (2015) p. 795 Google Scholar and Ritleng, D., ‘Does the European Court of Justice take democracy seriously? Some thoughts about the Macro-Financial Assistance case’, 53(1) Common Market Law Review (2016) p. 11 at p. 26 ffGoogle Scholar.

25 On ‘trilogues’ see, among many, Rasmussen, A. and Reh, C., ‘The consequence of concluding codecision early; trilogues and intra-institutional bargaining success’, 20(7) Journal of European Public Policy (2013) p. 1006 CrossRefGoogle Scholar; Roederer-Rynning, C. and Greenwood, J., ‘The culture of trilogues’, 22(8) Journal of European Public Policy (2015) p. 1148 CrossRefGoogle Scholar; Roederer-Rynning, C. and Greenwood, J., ‘The European Parliament as a developing legislature: coming of age in trilogues?’, 24(5) Journal of European Public Policy (2017) p. 735 CrossRefGoogle Scholar.

26 For criticism of the monopoly on initiative deriving from a lack of democratic credentials see, inter alia, R Mastroianni, ‘L’iniziativa legislativa nel processo legislativo comunitario tra deficit democratico ed equilibrio interistituzionale’ [Legislative Initiative in European Communities’ Law-making Process between Democratic Deficit and Inter-institutional Balance], in S. Gambino (ed.), Costituzione italiana e diritto comunitario [The Italian Constitution and European Community Law] (Giuffrè 2002) p. 433 at p. 437 ff, and Martines, F., ‘Institutional Balance, Democracy and Agenda Setting in the European Union’, in L. Daniele et al. (eds.), Democracy in the EMU in the Aftermath of the Crisis (Giappichelli-Springer 2017) p. 141 CrossRefGoogle Scholar.

27 This is the main criticism to the decision levelled by Ritleng, supra n. 24, p. 19 ff, according to whom the Court of Justice ‘seems to be largely underpinned by an out of date functionalist view of the European integration process’ that ‘does not take any account of the rise of the principle of democracy in the institutional system of the European Union’.

28 See judgments 3 February 2017 (Case T-646/13) and 10 May 2017 (Case T-754/14), in which the General Court annulled two decisions of the Commission not to register citizens’ initiatives. The second one seems more relevant here, not only because it was grounded on more explicit reasoning (e.g. on the principle of democracy as ‘one of the fundamental values of the European Union’ and, at the same time, as ‘the objective specifically pursued by the ECI mechanism’), but also because it referred to the Commission’s power of withdrawal and to amend its proposals (although regarding not a legislative act, but an authorisation to open a negotiation for an international agreement), using it somehow against the Commission itself. The Court stated, in fact, that the citizens’ initiative ‘includes the power to request an amendment of legal acts in force or their annulment, in whole or in part’ and that ‘therefore, nothing justifies excluding from democratic debate legal acts seeking the withdrawal of a decision authorising the opening of negotiations with a view to concluding an international agreement’. In September 2017 the Commission submitted a proposal for a regulation (COM(2017) 482 final) aimed at substituting the current regulation on the citizens’ initiative (Regulation (EU) No 211/2011 of the European Parliament and the Council of 16 February 2011). See Organ, J., ‘EU Citizens Participation, Openness and the European Citizens Initiative: the TTIP Legacy’, 54 Common Market Law Review (2017) p. 1713 Google Scholar.

29 For accurate analyses of the previous conceptions of the democratic principle see Leanerts, K., ‘The Principle of Democracy in the Case Law of the European Court of Justice’, 62 International & Comparative Law Quarterly (2013) p. 271 CrossRefGoogle Scholar (arguing that these conceptions are not limited to the participation by the European Parliament in the legislative process, but also encompass other forms of governance) and S. Ninatti, Giudicare la democrazia? [Judging Democracy?] (Giuffrè 2004) p. 35 ff and 63 ff (showing how the institutional balance has been at the foundation of the democratic character of EU decision-making).

30 OJ L 123/1, 12.5.2016.

31 See European Parliament Rules of Procedure: general revision (2016/2114(REG)), at <www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2016-0484+0+DOC+PDF+V0//EN>, visited 18 April 2018.

32 Dawson, M., ‘Better Regulation and the Future of EU Regulatory Law and Politics’, 53 Common Market Law Review (2016) p. 1209 Google Scholar. A reference to the power of withdrawal was already inserted within the Framework Agreement on relations between the European Parliament and the European Commission of 20 October 2010 (OJ L 304, 20.11.2010, p. 47), but the duty to give reasons was limited to the withdrawal of ‘any proposals on which Parliament has already expressed a position at first reading’ (point 39).

33 See D. Jančić, ‘The Juncker Commission’s Better Regulation Agenda and Its Impact on National Parliaments’, in C. Fasone et al. (eds.), Parliaments, Public Opinion and Parliamentary Elections in Europe (2015) 18 EUI Max Weber Working Paper, p. 45 ff, available at <cadmus.eui.eu/handle/1814/37462>, visited 18 April 2018) and, with interesting critical remarks, Dawson, supra n. 32, p. 1223 ff.

34 Rule 37(4) concludes by recalling that ‘Rule 123 shall apply’: that is, the procedure provided for statements from the Commission, Council and European Council, which allows the submission of and the vote on a resolution by the European Parliament, by which the Parliament can exercise its influence on how, when and even whether the Commission is going to make use of its power of withdrawal.

35 In the most recent Commission annual work programs, an ad hoc ‘annex 4’ contains the list of the pending legislative proposals which the Commission intends to withdraw within six months. See, for instance, the Commission Work Programme 2018. An agenda for a more united, stronger and more democratic Europe (COM(2017) 650 final, 24 October 2017). Of the reasons to justify the 15 intended withdrawals, obsolescence is the most frequent, although other grounds (including ‘no foreseeable agreement’) are also invoked. In this document, no case of ‘denaturalisation’ of the proposal is foreseen (while some were present in previous years).

36 As is well-known (among the first to see this, see O. Costa et al., Codecision and ‘early agreements’: An improvement or a subversion of the legislative procedure? (Notre Europe, no. 82 2011) especially. p. 15 ff), these agreements are becoming the norm in the ordinary legislative procedure. European Parliament, Codecision and Conciliation (2014), available at <www.europarl.europa.eu/code/information/guide_en.pdf>: in the previous legislative term (the seventh), p. 34: ‘93% of all adopted codecision files were ‘early agreements’ ‘compared to 54% and 82% during the 5th and 6th legislative terms, respectively’. Correspondingly, the number of files adopted at the third reading stage dropped ‘from 88 to 23 files between the 5th and the 6th legislative terms, while during the 7th legislative term only 9 files went to conciliation’. For data relating to the first half of the current legislative term see Tajani et al., supra n. 3, p. 10 (with a further increase of codecision files adopted either at first or early second reading: 97% overall, with a significantly higher proportion of files concluded at the early second reading stage, i.e. 22% of all adopted files). On trilogues see also supra, n. 25.

37 On different interpretations of this provision, and on its origins, see Chamon, M., ‘Upholding the ‘Community method’: Limits to the Commission’s Power to Withdraw Legislative Proposals. Council v Commission (C-409/13)’, 40(6) European Law Review (2015) p. 895 at p. 901 ffGoogle Scholar.

38 Cf Roederer-Rynning and Greenwood (2015), supra n. 25, p. 1148.

39 Cf Opinion of the AG, no. 57.

40 In the sense that the question of confidence exists in every parliamentary system, except Norway, Tsebelis, G., Veto Players. How Political Institutions Work (Princeton University Press 2002) p. 100 CrossRefGoogle Scholar. See also Huber, J.D., ‘The Vote of Confidence in Parliamentary Democracies’, 90 The American Political Science Review (1996) p. 269 CrossRefGoogle Scholar at p. 271 ff, who instead includes Norway and considers Iceland to be the main exception.

41 See Huber, supra n. 40, p. 271, noting that ‘in Belgium, Canada, Denmark, Germany, Great Britain, Ireland, New Zealand, Norway, Portugal, and the United Kingdom, there are no formal institutional constraints on the prime minister (although consultation with the cabinet is generally presumed)’. On the contrary, ‘in Finland, Italy, Spain, and Sweden, the prime minister must receive the formal support of the cabinet before a confidence vote procedure can be invoked’.

42 This is the case in Italy, where the question of confidence, although not explicitly addressed by the Constitution, is frequently posed by the government on ‘maxi-amendments’ in order to gather its parliamentary majority and achieve, through an open ballot, the approval of legislative bills: see Olivetti, M., La questione di fiducia nel sistema parlamentare italiano [The Question of Confidence in the Italian Parliamentary System] (Giuffrè 1996)Google Scholar and Gianniti, L. and Lupo, N., Corso di diritto parlamentare [The Course of Parliamentary Law] (Il mulino 2013) p. 215 Google Scholar ff.

43 The classic example is the French Fifth Republic, in which the government is entitled – directly by the Constitution – to use a series of procedural instruments to force and direct a parliamentary vote: see Avril, P. et al., Droit parlementaire (Lextenso 2014) p. 229 Google Scholar.

Also, in the Netherlands a Minister can declare an amendment ‘unacceptable’, thereby threatening the withdrawal of the bill or his own demission (or even the resignation of the entire government): see Bovend’Eert, P.P.T. and Kummeling, H.R.B.M., Het Nederlandse Parlement [The Dutch Parliament] (Wolters Kluwer 2017) p. 242 Google Scholar.

44 In political science terminology, these are all instruments by which the Executive controls the legislative agenda: cf Pollack, M.A., The Engines of European Integration. Delegation, Agency, and Agenda Setting in the EU (Oxford University Press 2003)CrossRefGoogle Scholar. For a wide and comparative analysis see Döring, H., Parliaments and Majority Rule in Western Europe (Mannheim Centre for European Social Research 1995)Google Scholar.

45 The traditional principle is clearly stated in Pierre, E., Traité de droit politique, électoral et parlementaire 2 (Imprimeurs de la Chambre des Deputès 1902) p. 77 Google Scholar ff. See, for instance, for the Italian legal order, in which the government is allowed to withdraw its own legislative proposals (until they are approved by one of the two Houses): Cicconetti, S.M., ‘Il potere di ritiro nel procedimento di formazione delle leggi’ [The Power of Withdrawal in the Law-making Process], 15(2) Rivista trimestrale di diritto pubblico (1965) p. 381 Google Scholar (remarking that this power has been used mainly for technical reasons). For a general recognition of the power of withdrawal for any bill until both houses have adopted it, see Art. 86 of the Dutch Constitution.

46 Pizzorusso, A., ‘The Law-Making Process as a Juridical and Political Activity’, in A. Pizzorusso (ed.), Law in the Making. A Comparative Survey (Springer-Verlag 1988) p. 152 CrossRefGoogle Scholar.

47 For a list, see Ponzano, supra n. 2, p. 39, who cites the only six cases between 1977 and 1994 in which the Commission exercised this power for political reasons. On the consensual nature of the ‘overwhelming majority of cases’ of withdrawals see Oliver, P. and Matenczuk, B., ‘The Commission’, in R. Schütze and T. Tridimas (eds.), Oxford Principles of European Union Law. Volume I: The European Union Legal Order (Oxford University Press 2018) p. 549 at p. 572Google Scholar.

48 Normally, this kind of withdrawal is the final step of a procedure that uses an online platform: <ec.europa.eu/info/law/law-making-process/overview-law-making-process/evaluating-and-improving-existing-laws/reducing-burdens-and-simplifying-law/refit-platform/refit-platform-work-progress_en>, visited 18 April 2018. For a recent assessment of this program, see the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Completing the Better Regulation Agenda: Better solutions for better results (COM(2017) 651 final, 24 October 2017).

49 Cf Arts. 6 and 7 of Protocol No. 2 (on the application of the principles of subsidiarity and proportionality).

50 See, respectively, Fabbrini, F. and Granat, K., ‘“Yellow card, but no foul”: The role of the national parliaments under the Subsidiarity Protocol and the Commission proposal for an EU regulation on the right to strike’, 50 Common Market Law Review (2013) p. 115 Google Scholar; , D. Fromage, , ‘The Second Yellow Card on the EPPO Proposal: An Encouraging Development for Member State Parliaments?’, 35(1) Yearbook of European Law (2016) p. 5 CrossRefGoogle Scholar; Jančić, D., ‘EU Law’s Grand Scheme on National Parliaments: The Third Yellow Card on Posted Workers and the Way Forward’, in D. Jančić (ed.), National Parliaments after the Lisbon Treaty and the Euro Crisis. Resilience or Resignation? (Oxford University Press 2017) p. 299 CrossRefGoogle Scholar.

51 In case of the ‘orange card’, moreover, if the Commission (or the other initiator) decides to maintain the proposal it has to justify why in its view it complies with the principle of subsidiarity. See Art. 7, paras. 2 and 3, of Protocol No. 2.

52 Cf the Opinion of the AG, no. 31, according to whom ‘Article 7 of the protocol on subsidiarity demonstrates that the authors of the FEU Treaty intended the Commission’s right of withdrawal to be a general right’.

53 On the origins of the political dialogue, by which national parliaments can raise any kind of observation, including on the substance of the proposal, see Jančić, D., ‘The Barroso Initiative: Window Dressing or Democracy Boost?’, 8 Utrecht Law Review (2012) p. 78 CrossRefGoogle Scholar. On its more recent development, cf Jančić, D., ‘The Game of Cards: National Parliaments in the EU and the Future of the Early Warning Mechanism and the Political Dialogue’, 52(4) Common Market Law Review (2015) p. 939 Google Scholar.

54 In the sense that the principle of subsidiarity is ‘politically complex and legally uncertain’ see de Búrca, G., ‘The principle of subsidiarity and the Court of Justice as an institutional actor’, 36 Journal of Common Market Studies (1998) p. 217 CrossRefGoogle Scholar. Evans, M and Zimmermans, A, ‘Editors’ Conclusions: Future Directions for Subsidiarity’, in M. Evans and A. Zimmermans (eds.), Global Perspectives on Subsidiarity (Springer 2014) p. 221 CrossRefGoogle Scholar ff at p. 223 talk of a principle that is ‘somewhat of a chameleon’.

55 See Goldoni, M. and Jonsson Cornell, A., ‘The Trajectory of the Early Warning System’, in A. Jonsson Cornell and M. Goldoni (eds.), National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon (Hart 2017) p. 335 Google Scholar; I. Cooper, ‘Is the Early Warning Mechanism a Legal or a Political Procedure? Three Questions and a Typology’, ivi, 18-49 (remarking that the Early Warning System has been studied by both law and political science scholars).

56 See, although with different approaches, Kiiver, P., The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality (Routledge 2012)CrossRefGoogle Scholar (referring to national parliaments as a sort of ‘Council of State’); and Fabbrini and Granat, supra n. 50, p. 115 (criticising the broad interpretation of the principle of subsidiarity adopted by national parliaments in the first yellow card).

57 See Goldoni, M., ‘The Early Warning System and the Monti II Regulation: The Case for a Political Interpretation’, 10(1) EuConst (2014) p. 90 Google Scholar and Lupo, N., ‘National parliaments in the European integration process: re-aligning politics and policies’, in M. Cartabia et al. (eds.), Democracy and Subsidiarity in the EU (Il mulino 2013) p. 107 Google Scholar.

58 The case of the third yellow card seems particularly telling, as it was used almost exclusively by the Parliaments of eastern and central European Member States to oppose a directive on posted workers which was opposed by their government: see Jančić, supra n. 50, p. 299, and Fromage, D. and Kreilinger, V., ‘National parliaments’ third yellow card and the struggle over the revision of the posted workers directive’, 10(1) European Journal of Legal Studies (2017) p. 125 Google Scholar.

59 See the letter sent by the then Vice-President of the Commission, Šefčovič, to all national parliaments on 12 September 2012.

60 See COM(2016) 505 final, 20 July 2016. For additional considerations see N. Lupo, ‘Le molteplici funzioni dell’Early Warning System, alla luce del terzo “cartellino giallo” sui lavoratori distaccati’ [The Many Functions of the Early Warning System, at the Light of the Third ‘Yellow Card’, on Posted Workers], in Dialoghi con Ugo Villani (Cacucci 2017) p. 583.

61 For some data, derived from the European Council’s conclusions, which often invite or welcome or look forward to an initiative by the Commission, see O. Höing and W. Wessels, ‘The European Commission’s Position in the post-Lisbon Institutional Balance. Secretariat or Partner to the European Council?’, in Chang and Monar, supra n. 5, p. 123 at p. 134.

62 Cf A. Vitorino, ‘Preface’ to Ponzano, supra n. 2.

63 Cf Rasmussen, A., ‘The Role of the European Commission in Co-decision. A strategic facilitator operating in a situation of structural disadvantage’, European Integration online Papers (EIoP), Vol. 7(2003), 10 Google Scholar, available at <eiop.or.at/eiop/texte/2003-010a.htm>, p. 9, visited 18 April 2018 (obviously referring to the codecision procedure). On more recent developments, along the same line, cf Burns, C. et al., ‘Legislative codecision and its impact on the political system of the European Union’, 20(7) Journal of European Public Policy (2013) p. 941 CrossRefGoogle Scholar.

64 V.A. Schmidt, ‘The political dynamics of EU Governance in Response to Crisis: Toward More or Less Legitimacy?’, draft paper prepared for the Berlin Workshop (6-7 October 2017): ‘Beyond representative democracy? Design and legitimacy of non-majoritarian institutions’, p. 19, available at <www.democratic-anxieties.eu/berlin>, visited 18 April 2018.

65 A hint in this direction is offered by K. Lenaerts, ‘L’Évolution du Cadre Juridique-Institutionnel de l’Union Européenne’, in Tizzano supra n. 20, p. 5 at p. 9 ff, underlying the importance that the principle of institutional balance – as opposed to the principle of separation of powers – has in the EU institutional system, both at the stage of legislative initiative and, after the judgment of the Court of Justice, also at the time when the power to withdraw may be exercised.