EU-note - 2009-10 - E 48: Note fra Rådets juridiske tjeneste om overholdelse af høringsfristen for nationale parlamenter på EU's budget 2011

CONTRIBUTION BY THE COUNCIL LEGAL SERVICE*to theOutcome of proceedings of the Budgetary Committee of 14 June 2010Subject:Role of National Parliaments in the budgetary procedure and the respect of thepragmatic budgetary calendar agreed between the European Parliament, theCouncil and the Commission

At the meeting of the Budgetary Committee of 14 June 2010, the representative of the LegalService replied to questions concerning the role of National Parliaments in the Budgetaryprocedure after the entry into force of the Lisbon Treaty, in connection with the so-calledpragmatic budgetary calendar. At the request of the Presidency, this note takes up and furtherdevelops the essential points made.

This document contains legal advice which is protected under Article 4(2) ofRegulation (EC) No 1049/2001 of the European Parliament and of the Council of30 May 2001 regarding public access to European Parliament, Council and Commissiondocuments and which the Council of the European Union has not released to the public.The Council reserves all its rights in law as regards any unauthorised publication.

As agreed between the European Parliament, the Council and the Commission on 30November 20101, the transmission of the Council's position on the draft budget for 2011under the Lisbon Treaty has to take place before the end of July 2010. This represents anacceleration with respect to the timetable foreseen in Art. 314 TFEU; it is howeveracknowledged by all parties concerned that such acceleration is unavoidable in order to securetimely agreement on the budget by both arms of the budgetary authority before the end ofyear n-1. As a matter of fact, the budgetary practice before Lisbon followed a similar pattern.

As a matter of principle, the fact that the budget has become a legislative act (see Article 314,introductory phrase, in conjunction with Article 289(3) TFEU) triggers the implementation ofProtocols no. 1 and no. 2.

Protocol no. 1 concerns the Role of National Parliaments in the EU and Protocol no. 2concerns the application of the principles of subsidiarity and proportionality. Both Protocolsforesee (in their Article 4) that an issue cannot be placed on the provisional agenda of theCouncil for decision before eight weeks have lapsed from the transmission of the relevantlegislative act directly from the Commission to the National Parliaments.

Article 5 (3) TEU provides that the principle of subsidiarity does not apply in areas which fallwithin the exclusive competence of the EU. It follows that Protocol no. 2 , which deals withthe control of subsidiarity, is not applicable in the case of the Union's Budget, which is bydefinition an exclusive Union competence. Protocol no.1, however, insofar as it deals with the

See the Joint declaration on transitional measures applicable to the budgetary procedure after theentry into force of the Lisbon Treaty, doc. 16792/09 of 1.12.20092JUR IV

Although work on the draft budget has begun in early May, the sheer volume of the finisheddocument and the resources needed for its translation result in the Commission being unableto officially transmit the budget in all national languages to the two arms of the budgetaryauthority and the National Parliaments before June 22. That means that the Council cannot inprinciple place the point on its agenda and take a position on the draft budget until the lastdays of August. The pragmatic calendar would thus be delayed for at least one month, therebyputting into jeopardy the timely adoption of the budget.

Should it so wish, the Council could however shorten the 8-week period on grounds ofurgency, as Article 4 of protocol No 1 allows it to do, thus making it possible to respect theagreed pragmatic calendar. Under Article 3 (3) of the Council Rules of Procedure, it is for theCouncil to decide, with the same voting rule as the decision on the Council's position on thedraft budget (i.e by QMV, see Art. 314 TFUE) to shorten the period, by way of a derogation.In practice, the two decisions will be taken at the same time; the Note to Coreper/ Councilshould make that clear, in order to confirm any suggested agreement made in this respect atthe Budgetary Committee. A recital in the decision adopting the Council's position on thedraft budget should state the reasons for the urgency justifying the derogation.

It should be observed, however, that the legal situation is far from being clear-cut. There is apotential contradiction between the eight weeks time-frame of Article 4 of protocol No.1 and theone -month minimum period which the Treaty gives the Council in order to establish a positionand transmit it to the European Parliament (see article 314 (2) and (3) TFUE). In other terms, ifthere were no pragmatic calendar and the proposal containing the draft budget were onlytransmitted on 1st September, as the Treaty allows, it would be materially impossible for theCouncil to respect the eight -weeks delay without violating Article 314 TFUE. A compromiseapproach seems thus necessary in order to solve this contradiction in a constructive manner, forexample along the lines suggested at the end of this note.3JUR IV

Discussions with the Commission should be started in due time before the introduction of theproposal containing the draft 2012 budget, so as to accelerate the transmission of that proposaland thus avoid, to the extent possible, the need to derogate again from the eight-week periodin future budgetary procedures. At the same time, Member States Governments could beinvited to explore informal arrangements with their respective National Parliaments, so thatsubstantive information on the annual budget is available to the latter well before the officialtransmission of the Commission's proposal.

LIMITE EN

LIMITE EN

LIMITE EN

LIMITE EN