The Parliamentary Legitimacy of the European Union: The Role of the States General within the European Union

This article presents the state of play in the Netherlands with regard to parliamentary scrutiny in EU decision-making. Although the States General have all in all dealt with EU decision-making fairly actively, this contribution makes clear that Parliament's activity has not been able to offset the increased executive dominance in matters of European integration. The abolition of the consent requirement had immediate negative effects on the information position of Parliament, which is crucial for the attempts by Parliament to counteract the increased executive dominance. Furthermore, the aspect of Parliament's role in the legitimacy of the EU itself is discussed. The 'European instruments', such as the subsidiarity review, the Barroso initiative and the access of parliaments to the European Court of Justice have some general shortcomings. Practice shows, however, that most of these instruments have been used, though with different degrees of intensity and continuity in the two Houses of Parliament and their different parliamentary committees.


Introduction
The European Union is founded on the values of respect for freedom, democracy, the rule of law and fundamental rights, which are common to the Member States. This is how the Treaty on European Union says it since its inception in Maastricht. 1 Of these founding principles, democracy is possibly the most problematic within the architecture of the European Union. Due to its complex nature, the issue of democracy does not seem to be exhausted by the establishment of a European Parliament as an EU institution, judging by the continued attention paid to the role of national parliaments in the EU. There are good reasons for this attention. In the classic European understanding of the democratic state under the rule of law, parliaments are the primary sites of representative democracy. Parliaments are the primary representation of the national electorate and thus determine the democratic character of the national political order. Their primary role has been to legitimise governmental action through legislation and -at least in the parliamentary systems of Europe -by scrutinizing executive action. This is so, notwithstanding the relative decline of parliaments resulting from a number of mutually reinforcing developments, not least of which is the shift of the locus of power from national to European and international arenas, through closely interconnected international and national decision-making complexes which are dominated by governmental executives to the exclusion of parliaments. One can hypothesise that this increases the importance of the national parliamentary scrutiny of such EU (and international) decision-making complexes, precisely in order to compensate for the increased executive dominance.
Yet the question of what the role of national parliaments as the locus of democracy still is, could be or should be in the context of European decision-making has received very different responses in the academic literature. These have gone in opposite directions, veering on the one extreme towards the denial that national parliaments have any role to play because they are not apt to do so neither institutionally nor constitutionally, 2 to the hypothesis that parliaments can indeed play a new role within the perspective of a more encompassing constitutional order emerging in the European Union. 3 This last view has Article 12 of the post-Lisbon Treaty on European Union in its favour. It stipulates that 'national parliaments contribute actively to the good functioning of the European Union' , and that they do so by communicating constructively with the EU institutions and through their own practices by means of a set of mechanisms spelt out in the same provision. Although some institutional arrangements have been put in place in the EU allowing for a role of national parliaments, for the moment these are potentialities, not necessarily achievements and actual practices of the national parliaments. To that extent, the first view -that national parliaments are not fit for a European role -also has something in its favour.
One explanation of the persistently divergent views of the role of national parliaments within the EU may be caused by the 'double' nature which is necessarily attributed to national parliaments as soon as one considers them in the EU context. On the one hand, they are and remain national parliaments. They have their genesis in the national constitutional order which has called them into existence. Yet within the EU perspective they acquire a role outside it, as is expressed in Article 12 of the EU Treaty. This dédoublement fonctionnel is, however, also apparent in their national function of scrutinising national members of the executive for the action within the EU institutions (mainly: the Council, European Council and 'comitology'): precisely because the national executive is held to account for what they do qua members of EU institutions, the national parliamentary activity is not only a scrutiny of a national agent but also a scrutiny of those institutions' decision-making.
The implications of this hypothesis are several. One is that any research as to the factual and normative role that national parliaments play, and can play, within the framework of European integration in the European Union must take on board what national parliaments can do and actually do under their own constitutional arrangements and practices. These arrangements and practices show up their degree of openness to the EU and determine the extent to which they can actually participate in the Union's activity, thus legitimating its output democratically. A comprehensive account of these constitutional arrangements and practices is therefore desirable not so much in the interest of the national parliaments as for fathoming the democratic development of the European constitutional order.
Another implication is that the study of national parliamentary practice must distinguish between parliamentary activity concerning EU decision-making which is geared to the national constitutional context, and the parliamentary activity that is geared to the EU and its institutions.
The first activity concerns the parliamentary legitimacy of national executive action regarding the EU. This is of the utmost importance since there can be little doubt that European integration and the institutional set-up of the European Union has significantly increased executive dominance over matters which otherwise would be within the remit of the national parliaments. A central question must therefore be whether parliament's activity has been able (or not) to offset the increased executive dominance in matters of European integration.
Secondly, there is the aspect of parliaments' role in the legitimacy of the EU itself. Here the emphasis would be on the 'European instruments' , especially the subsidiarity review, the Barroso initiative and the access of parliaments to the European Court of Justice. The research question is whether these instruments can be and are used, given the national constitutional arrangements and practice.
In this article, we intend to pursue the issues outlined in the form of a case study of the Netherlands' States General. This article presents the state of play in the Netherlands and thus aims to make a first contribution to a more comprehensive account of the role of national parliaments in the democratic development of the European constitutional order. 4 The contribution is modest and deserves further in-depth study, in particular empirical studies, which have so far focussed on other research interests than the constitutional ones outlined above. 5 Yet, we believe that the answers outlined in this paper can render first answers to the questions formulated.

Structure
In order to make this case study intelligible to the foreign reader, we first discuss the historical background to the present constitutional practice with regard to Europe, and provide the briefest possible outline of the most relevant constitutional features that distinguish the Dutch parliamentary system and influence the particular form the scrutiny of EU decision-making has taken (Section I).
The next two sections concern the parliamentary legitimacy of national government action in the EU, and focus on the national context. First we discuss parliamentary practice with regard to the Dutch Government acting in the context of the EU (Section II), while the central question in Section III is whether Parliament's activity has been able (or not) to offset the increased executive dominance in matters of European integration.
The next section takes on board Parliament's role within the EU framework itself, hence it concerns the parliamentary legitimacy of the EU (Section IV). We shall see that in practice the States General were anticipating the situation that was to arise under the Lisbon Treaty, paradoxically mainly by dismantling bicameral cooperation with regard to subsidiarity review, and by largely doing away with the most effective power any parliament has ever had within the EU, to wit, the consent requirement in the Area of Freedom, Security and Justice.
Section V takes stock of the somewhat mixed record of the Dutch Parliament in light of the research questions.

Historical background
Ever since the adoption of the EEC Treaty in 1957, democracy and the parliamentary representation of citizens have been matters of great concern within the Dutch Parliament, the States General (Staten-Generaal). What was later referred to as the 'democratic deficit' was already identified in the parliamentary debates in the 1950s; 6 that the limitation of democratic representation at the national level was not accompanied by parliamentary representation at the European level was viewed as a major problem for the democratic nature of the new European Communities. 7 5 The closest to this comes Davor Jančić, who includes a sample of case studies to support the constitutional analysis for the UK, France and One lasting particularity of the debate in the Netherlands has been Parliament's focus on its relation to the role of the European Parliament in European decision-making: its lack of formal co-decision powers has been a major justification for a role of the national Parliament; its possession of co-decisive powers as a justification to tone down that role. Nevertheless, Parliament has always been active in scrutinizing European affairs, at least in certain policy sectors. There are two landmarks in this regard. In the Act on Approval of the EEC and Euratom Treaties of 1957, it was stipulated that the Government was to send to Parliament an annual overview of the development of European integration. Firstly, this is the legal basis for an annual debate on European integration, since 1999 called 'the State of the Union debate' in which Dutch MEPs participate. 8 Secondly, the Dutch Lower House (Tweede Kamer) adopted what is the prototype of a scrutiny reserve, the very first ever parliamentary Resolution on 11 January 1967: 'The House, (…) judges that the Dutch Government shall not agree to definitive decisions in the Council on Community measures concerning the size and distribution of the tax burden unless it has previously consulted the Dutch Parliament. ' 9 Important as this precedent may be for the history of European integration, it has largely been forgotten in the Netherlands itself.

The constitutional framework
The States General's involvement in European decision-making is part and parcel of the general constitutional system of government. In this section we describe those constitutional features no further than is necessary for understanding that involvement correctly.

Constitutional features of the parliamentary system
The Dutch parliamentary system is based on a 'negative' rule of confidence: a government does not need the positive expression of the confidence of Parliament, but shall resign upon the adoption of a motion of censure. Due to the system of proportional representation in a multiparty political culture, Parliament is made up of minority parties. This necessitated coalition cabinets which since World War II until 2010 enjoyed positive political support from a majority in the Lower House. The 2010 elections led to a selfstyled 'right-wing' minority coalition of Christian-Democrats and Liberals with the external support of the populist, anti-Islamic and anti-European PVV led by Wilders.
The States General are a bicameral Parliament. The Houses are called Tweede Kamer (literally, 'second chamber'), which is the Lower House, and Eerste Kamer (literally, 'first chamber'), which is the Upper House. These names may confuse foreign scholars engaged in comparative parliamentary studies, because the Tweede Kamer, 'second chamber' , comes first in terms of powers and political prominence, and the Eerste Kamer, 'first chamber' , comes second.
Uniquely among European bicameral systems, there is no mechanism for reaching consensus between the Houses, which jealously guard their independence towards each other. Almost unique is the fact that in legislative matters they decide consecutively, and independently of each other -the Upper House always after the Lower House has adopted a bill, with no possibility of referring the bill back from the Upper House to the Lower House.  1967. Bijlagen Handelingen II 1966-1967. Translation by the authors.
There are only a few exceptions to this mutual independence. One is that the Houses cooperate in a joint committee on delegations to international (inter)parliamentary assemblies, and in the past also on two occasions concerning EU affairs. This was the case at the time of the second EU Convention, which drew up the abortive EU Constitution. As we shall see, this was also temporarily the case with regard to the subsidiarity review of draft EU legislative measures. 10 A final proviso is that, on the whole, the Eerste Kamer (75 members) adheres to its less prominent political role than that of the Tweede Kamer (150 members). Politically, the Tweede Kamer is stronger than the Eerste Kamer: the Upper House is meant to be a chambre de réflexion. With regard to EU affairs, this recently led to the articulation by the Eerste Kamer of a doctrine of 'complementariness' with regard to its role in non-legislative procedures: the Eerste Kamer is complementary to the Tweede Kamer and should not deal with matters which have already been dealt with by the Tweede Kamer if this would result in an overlap. 11

Constitutional provisions on the role of Parliament regarding the EU
There is at present no explicit reference to the European Union in the Constitution (Grondwet), although some proposals for a constitutional amendment to that effect have been advanced. 12 There is no case law in the Netherlands on the role of the national Parliament or the European Parliament, as there is no specialized constitutional court in the Netherlands providing a judicial guarantee of the role of Parliament. It is left to Parliament to guard against infringements of its constitutional position.
Article 92 of the Grondwet, which allows the attribution of powers to international organisations, neither refers to the concept of sovereignty, nor to the European Union. 13 In principle, treaties involving such power attribution -as do all treaties -require the approval of both Houses of Parliament (Article 91 Grondwet). Approval may be either tacit or express, i.e. by an Act of Parliament. 14 The European Communities and EU treaties have always been submitted for express approval. A majority of two thirds of the votes is required in each of the Houses of Parliament if the treaty deviates from the Constitution. Though not without controversy, 15 this has so far not been required with regard to the European founding treaties or their amending treaties.
An important event in the recent history of the parliamentary approval of the EU treaties in the Netherlands was the negative outcome of the consultative referendum on the European Constitution in 2005, held at the initiative of the national Parliament, a vast majority of which had actually been in favour of the European Constitution. 16 The approval of the Treaty of Lisbon triggered the referendum discussion once more. The Raad van State (Council of State) found that the Lisbon Treaty lacked some important constitutional features of the Constitutional Treaty. The Council of State formulated a set of criteria for holding a referendum, without specifying whether these were actually fulfilled. This was eagerly under-10 The States General can decide in 'Joint Session' specific decisions indicated in the Grondwet (e.g. certain bills concerning the King, kingship and declaring the country to be in a state of war), and meet for purposes other than decision-making (e.g. the annual speech from the throne, receiving a foreign head of state or government addressing it). stood both by Government and a parliamentary majority to imply a negative opinion as to the need to hold a second referendum. This was crucial in Parliament's decision to refrain from organizing a second referendum. 17

II. Parliamentary Practice within the National Context: The Parliamentary Legitimacy of Government Action within the EU
In this section we first discuss the institutional committee structures in European Affairs, and next the instruments at the States General's disposal in order to hold the national Government to account when it acts in the EU context.

The committee structures in European Affairs
The Grondwet assumes the existence of committees without explicitly providing for them. 18 They are regulated in the Rules of Procedure of each of the Houses. Their tasks and powers vary. Most committees are involved in the legislative process and in holding the Government to account. 19 One of two distinctive features is that, traditionally, there were no rapporteurs in a committee. Secondly, as a rule committees do not take a stance on a bill or on a position taken by a government representative in a meeting with the committee; they limit themselves to deciding that the bill has been prepared sufficiently for referring it to the plenary, or refers a matter to the plenary if a committee debate with the Government gives rise to this. Committee meetings are public unless decided otherwise. The scrutiny of EU documents has caused a change on both points. It is often the very purpose of an EU committee to propose a particular point of view to the plenary. Furthermore, the Tweede Kamer recently introduced the possibility of committee rapporteurs, basically to prepare the committee's work. Two rapporteurs were appointed by the EU Affairs Committee to prepare a proposal for a procedure for the parliamentary scrutiny reserve procedure required by the Act of Approval of the Lisbon Treaty, while also in the framework of the subsidiarity check rapporteurs have been appointed. 20

The Tweede Kamer European Affairs Committee
The Tweede Kamer has a Standing Committee for European Affairs (Commissie EU-zaken), which we shall refer to as the European Affairs Committee. The European Affairs Committee coordinates the parliamentary oversight of government action during negotiations at the European level. It also alerts and advises the other relevant standing committees about specific European developments in their policy areas, and refers matters to them in its 'gatekeeper' function, as further elucidated below. Ultimate responsibility for parliamentary oversight over government action with respect to specific instances of European decision-making lies with each of the relevant standing committees, but the general government policy regarding broader developments in the EU is scrutinized by the European Affairs Committee.
Every year the European Affairs Committee prepares the parliamentary debate on 'The State of the Union' .
The committee also organizes an annual parliamentary meeting on the European Commission's legislative and work programme. At the request of the European Affairs Committee, the other standing committees give their views on the programme as input for the discussion. 21

The Eerste Kamer Committee on European Cooperation Organizations
According to Article 32, paragraph 2 of the Rules of Procedure, the standing committees and the special committees prepare the debates on bills, and promote debate with the Government, also about other is- sues within their remit. On this basis, the committees of the Eerste Kamer are involved in scrutinizing European legislative proposals. The Committee on European Cooperation Organizations (Commissie ESO) was established on 23 June 1970, long before the Tweede Kamer set up a European Affairs Committee. It used to have a 'gatekeeper' function, like that of the Committee of European Affairs in the Tweede Kamer. This has recently changed.
In 2009, the Eerste Kamer adopted a new working method with respect to the deliberation of European proposals coming directly from Brussels. The Upper House no longer waits for the information sent by the Government (in the form of so-called fiches, or notices), but acts independently on the basis of documents sent directly from Brussels. The essence of this new working method is that the standing committees themselves are generally responsible for following European initiatives within their own remit, without intervention from the Committee on European Cooperation Organizations. 22 The standing committees take the EU Commission's legislative and work programme as the basis for selecting documents for their deliberations. The Committee on European Cooperation Organizations plays a coordinating role in this process in that it monitors and evaluates the work of the various standing committees. The Committee on European Cooperation Organizations retains an important role in the general promotion of the involvement of the Eerste Kamer in European Affairs.

The Eerste Kamer Committee for the Justice and Home Affairs Council
Another highly important Committee involved in European Affairs in the Eerste Kamer is the Standing Committee for the Justice and Home Affairs Council. This committee was established to give effect to the parliamentary consent procedure that was introduced in the Act of Approval of the Maastricht Treaty.
Under this consent procedure, the Government was quite dependent on receiving the 'green light' from this Committee. It thus provided it with a great deal of information, including confidential information, at a very early stage of decision-making. This Standing Committee therefore acquired a stronger position in EU affairs than any other committee. Since the Treaty of Lisbon entered into force, the Committee continues its work regarding those very few matters for which the parliamentary consent procedure still exists within the Area of Freedom, Security, and Justice (Title V of the consolidated version of the Treaty on the Functioning of the EU), in which the European Parliament has no co-legislative powers. Although the Committee will remain involved in this policy area, it can be expected gradually to fade into the background with the eclipse of the consent requirement.
The Committee on European Cooperation Organizations and the Committee for the Justice and Home Affairs Council have together played an important role in promoting general parliamentary involvement with respect to EU affairs. The decision to establish a joint committee was not undisputed. Eyebrows were raised about the composition of the committee, as it was equally composed of members of the two Houses. Some MPs argued that a joint committee would -whatever its composition -conflict with the principle of the primacy of the Tweede Kamer. 23 In the end a compromise was struck by giving the joint committee a temporary status.

The Temporary Joint Committee for Subsidiarity Review
In 2009, the Eerste Kamer evaluated the work of the Temporary Joint Committee for Subsidiarity Review, with the conclusion that the work of the Committee should not be continued. 24 The Eerste Kamer did not see any added value in its continuation, and found that it leads to an unnecessary delay of at least a week. The Eerste Kamer reconsidered its role in the European decision-making process, especially in relation to the Tweede Kamer. The main conclusion of this exercise was that the work of the Eerste Kamer should not overlap but complement the work of the Tweede Kamer. According to the Eerste Kamer, this means that the two chambers should conduct their own separate subsidiarity checks, while preventing an overlap through a mutual exchange of information, and striving for 'like-mindedness' in the assessment.
Reading the suggestions for reform, one cannot help thinking of the two Houses as 'séparés inséparables' . The argument of the 'complementarity' of the Eerste Kamer vis-à-vis the Tweede Kamer is not altogether convincing from a constitutional point of view. A better explanation may be that, just as was the case under the consent procedure, most of the 'dirty' work was done by the Eerste Kamer, and comparatively little by the Tweede Kamer.
The Tweede Kamer initially created a separate Subsidiarity Committee. This committee was, however, not reinstalled when the newly elected Tweede Kamer assembled in June 2010. At the moment the matter is left to the regular standing committees and the European Affairs Committee. The Eerste Kamer decided to entrust the task of subsidiarity review to the respective standing committees for each ministry. 25

The parliamentary instruments with regard to EU decision-making
There are seven instruments which have developed over time with regard to EU decision-making, of which four are aimed at holding the national Government to account when it acts in the EU context.
The first two are the fiches (written notices) procedure, which is document-based, and the agenda procedure, which is procedure-based. The third instrument is that of the consent requirement which previously existed in the Area of Freedom, Security and Justice, but since the approval of the Lisbon Treaty only exists for decisions on which the Eureopan Parliament has no co-decisional powers. It was based on an assessment of documents, but in practice had strong features of the procedure-based model, since the consent in relation to a document frequently depended on how and when it was dealt with in the decision-making procedure in the EU Council. The fourth instrument is the scrutiny reserve, introduced when the Lisbon Treaty was approved.
The fifth, sixth and seventh instruments are the subsidiarity review, which is mainly documentbased, the broader policy dialogue with the Commission known as 'the Barroso initiative' , which is mainly procedural, and finally the judicial procedure, which is Parliament's right to bring an action to the ECJ for an infringement of the subsidiarity principle. These concern the role of the States General within the EU independent from the national Government, and are discussed in Section IV.
The procedures described below operate with Article 68 of the Grondwet as a backdrop: 'Ministers and State Secretaries shall provide, orally or in writing, the Houses either separately or in joint session with any information requested by one or more members, provided that the provision of such information does not conflict with the interests of the State. ' This provision also applies to the information which is requested with regard to EU decision-making. On the basis of this constitutional obligation, some specific instruments have been developed in parliano. 4, pp. 141-142. The author (an MP) argues that there were no constitutional objections: the opinions of the joint committee would be put to the plenary of the Houses, each of them remaining fully free to take their own view on the matter. 24 Kamerstukken I 2008-2009, 30953, F and G (15 June 2009 mentary practice in order to scrutinize EU decision-making, mainly on the basis of a set of requests for continuous information from the Government.

Government 'fiches'
First, there is the 'fiches procedure' . 26 Through this procedure both Houses of Parliament are informed on a monthly basis about new European Commission proposals which, in the opinion of the relevant minister(s), have 'substantial consequences for the national legal order' . 27 The European Commission proposals are summarized for the Government by ministries at the request of a committee of civil servants from various ministries, on special forms, called 'fiches' . The fiche contains a brief summary and an assessment of the subsidiarity and proportionality of the proposal. It also indicates a negotiating position on the basis of the effects of the proposal for the Dutch legal order, and information on financial consequences of the European Commission proposal. These fiches are sent to both Houses of Parliament. In the period 2001 to May 2004, 523 fiches were sent; 28 in the period January 2005 to December 2008, 768 fiches were sent. When the fiches arrive in the Tweede Kamer, the Standing Committee on European Affairs selects those which are of specific interest and forwards them to the relevant standing committee(s). Despite the fact that the fiches procedure enables the Lower House to influence the Government with respect to European decision-making at an early stage, most fiches are not discussed on a regular basis. 29 The Eerste Kamer used to make a more intensive use of the fiches. On the basis of the fiches, officials of the European Bureau of the Eerste Kamer, which supports members of the Upper House in European affairs, made an e-file and put this online. 30 The e-file also contained other information from these officials for the Committee on European Cooperation Organizations and for further consideration in the other standing committees of the Eerste Kamer. If the Committee on European Cooperation Organizations decided to forward a proposal to a standing committee, the proposal was assigned a number of stars (ranging from one to three), indicating an assessment of their importance. 31 The standing committees discussed these proposals on a regular basis and, if they wanted more information, consulted the Government. 32 Since the Upper House changed its practical procedures in 2009, the e-files are no longer based on the government fiches, but on the decision of a standing committee that a European legislative proposal is of special importance.

Agenda procedure
The Tweede Kamer -unlike the Eerste Kamer -supervises the Government in European affairs through the so-called 'agenda procedure' . 33 Under this procedure, at least one week prior to a Council or a European Council meeting, an annotated agenda for that specific meeting is sent to Parliament. Although the agendas are sent to both Houses, it is the Tweede Kamer in particular which discusses them, usually during the weekly 'Europe deliberation' . Participants in these meetings are members of the European Af-26 For an extensive description of the fiches procedure see N.Y. Del Grosso, Parlement en Europese Integratie, 2000, pp. 173-177. 27 Aanwijzingen voor de regelgeving, aanwijzing 332. The origin of the fiches procedure goes back to a parliamentary debate in 1990, in which the Minister of Finance was requested to give Parliament information on EC legislation concerning insurances more frequently (Handelingen II 14 February 1990, 40-2323. Subsequently the Government was requested to extend this procedure to all policy areas (Kamerstukken II 1989-1990. The Government was willing to do so, and promised to present a list of Commission proposals on a monthly basis (Kamerstukken II 1989-1990 fairs Committee, members of the relevant standing committees and the ministers who will take part in the relevant Council meeting. After the Council meeting, ministers give an account of what happened in 'Brussels' to the same members of Parliament who were involved in discussing the agenda. 34 The annotated agendas of European Council meetings are always first discussed in a committee, with the possibility to introduce resolutions in the plenary, where these are debated in a brief 'two-minute' debate. Until the spring of 2003, the results of each European Council were debated in the plenary, but this is no longer the case.
For the purpose of the agenda procedure, use can be made of the relevant fiches for proposals on the agenda, but frequently the annotated agenda includes issues for which no fiche is available. This is particularly true for the European Council agendas.

Consent requirement
In the Netherlands, parliamentary consent was required for binding decisions in the 'third pillar' (Title VI of the former EU Treaty which contained provisions on police and judicial cooperation in criminal matters) and decisions based on Title IV of the former EC Treaty which were not taken under the co-decision procedure. A similar requirement of parliamentary consent was first introduced upon the approval of the Schengen Agreement. 35 The Approval Acts of the Maastricht Treaty, the Treaty of Amsterdam, the Treaty of Nice and the Treaty of Prüm contain a similar provision. 36 The main reason for introducing the requirement of parliamentary consent was to compensate for the existence of a democratic deficit with respect to these decisions, as the European Parliament had no co-legislative role.
In practice, the major effect of the consent requirement has been that the Government has informed Parliament considerably more intensively about the state of negotiations, the positions of the Government and other Member States, and Parliament has in several instances influenced positions taken by the Government in the Council. An actual veto has never been cast. When the Treaty of Lisbon entered into force the most important change concerned the abolition of the consent requirement. Parliament agreed with the Government, after a long debate on the Approval Act of the Lisbon Treaty, that the requirement of parliamentary consent should be abolished in all cases in which the EP has powers of co-decision. It is maintained only for decisions in the Area of Freedom, Security and Justice (Title V of the Treaty on the functioning of the European Union) where the European Parliament has no co-legislative powers. 37

Scrutiny reserve
The Act of Approval of the Lisbon Treaty provides for a duty of the Government to inform Parliament with respect to EU legislative proposals which one of the Houses finds of such particular political interest that it wishes the Government to inform it more specifically about that proposal. 38 Upon notification, the Government shall forthwith make a parliamentary reservation in Brussels. Within four weeks after the scrutiny reserve has been made, Parliament will consult with the Government as to the 'particular political significance' of the EU proposal, the manner of providing Parliament with information as regards the state of the negotiations, the legislative procedure and possible further consultations with the Government. The scope of this parliamentary procedure is limited to 'legislative acts in the sense of Article 2 of the Protocol concerning the Role of National Parliaments in the EU' . 39 The Tweede Kamer and the Eerste Kamer each agreed on procedural principles to be followed in practice as regards the scrutiny reserve. The procedural principles in the Tweede Kamer are as follows. 40  Kamer establishes a list of European 'priority proposals' which may be subject to a scrutiny reserve or will be assessed on the principles of subsidiarity, proportionality and legal basis in EU law. The list is based on proposals pinpointed by the standing committees, and consolidated into a list by the European Affairs Committee. After a committee deliberation with the Government the (updated) list is submitted to the plenary for final approval. The Government must send a fiche within three weeks after the publication of a listed proposal. The relevant standing committee then decides if it wants to make a scrutiny reserve. If so, this decision is conveyed to the European Affairs Committee. The European Affairs Committee will ensure that it is transmitted for approval to the plenary. If the plenary decides to make a scrutiny reserve, the Government is informed in writing. At that moment the Government is obliged to make a parliamentary reserve at the European level. Within four weeks after the scrutiny reserve has been made, the Tweede Kamer will consult with the Government. In principle this consultation takes the form of a general deliberation (Algemeen Overleg) of the relevant standing committee with the responsible minister. Upon completion of this consultation the parliamentary scrutiny reserve is formally lifted. The first time the Tweede Kamer decided to make a scrutiny reserve was on the proposal for a regulation regarding the 'Financial Regulation applicable to the general budget of the European Union' in September 2010. 41 In the Eerste Kamer, the decision whether a scrutiny reserve is to be made on a specific proposal is taken at the initiative of the relevant standing committee examining it after the publication of the relevant EU proposal. 42 Within four weeks after the scrutiny reserve has been made, the relevant standing committee of the Eerste Kamer consults with the Government. This consultation takes place in an oral deliberation of the relevant standing committee. This is quite exceptional as exchanges of the Eerste Kamer committees with the Government are usually in writing. Contrary to the procedure in the Tweede Kamer, the scrutiny reserve is not as a rule and necessarily lifted after consultations with the Government have taken place. The Eerste Kamer explicitly stated that it is possible to prolong the scrutiny reserve in case it wishes to receive more or continued information from the Government. Furthermore, the decision to lift the scrutiny reserve needs the approval of the plenary.
By the end of 2010, the Eerste Kamer had not yet made a scrutiny reserve. Also, with respect to the scrutiny reserve procedure the Eerste Kamer wants to complement and not overlap the work of the Tweede Kamer. It is as yet uncertain what this means in practice.

Sanctions
As to the enforcement of the Government's duty to provide information to the Houses of Parliament and its members under Article 68 of the Grondwet, it is up to the individual MPs and to the relevant House, respectively, to assess whether the Government has fulfilled its constitutional duty towards Parliament in answering questions -a majority of the House is required in order to sanction any perceived infringement of this duty. Only the consent procedure provides Parliament with an efficient and effective instrument in order to make the Government more forthcoming in providing information. But this has largely been abolished, thus depriving Parliament from its most effective weapon. The scrutiny reserve may fulfil a similar function, but the Tweede Kamer, contrary to the Eerste Kamer, seems to consider this an instrument with a legally binding time limit, thus limiting the opportunity to demand further government information to the period between the making of the reservation and the lapsing thereof with the end of the committee consultation with the Government only. This would give the Government the power eventually to ignore Parliament's requests for further information about the relevant EU decision beyond that timeframe. This means that the information position of the Lower House is weaker than under the consent requirement previously.

III. Relations between Government and Parliament
European integration has no doubt reinforced the position of the executive at the expense of the position of Parliament. As a general phenomenon, this is no different from other countries, but we here seek to give an explanation for the particular causes of this in the Netherlands. We point to three possible explanations within the Dutch constitutional order: the constitutional system governing relations between Government and Parliament, the structure and organization of the executive in European affairs, and the position of Parliament in the parliamentary scrutiny of European affairs.

Constitutional parameters of the relations between Government and Parliament
The constitutional parameters regarding the respective positions of the executive and Parliament in EU affairs explain the executive dominance on three points: the role of Parliament and the executive in the conclusion and revision of the founding Treaties, the position of Parliament in implementing secondary EU legislation, and the constitutional position of EU law under Dutch constitutional law.

Approval of (the amendment of) the Founding Treaties
When entering into or amending the European project, Parliament can ultimately only say yes or no to whatever the outcome is of the negotiations leading to the founding treaties, the amendment treaties and the accession treaties. Of course, in the process leading up to the negotiated result, the Government does not act in total isolation from parliamentary involvement. But this involvement is merely deliberative. Parliament cannot force the Government to adopt a particular position. Nor does the Government always seek guidance from Parliament; on the contrary, it involves Parliament to muster support for its position, so as to make the results acceptable as far in advance as possible.
The 'convention method' does not fundamentally change the legitimacy of the result in terms of parliamentary involvement. The nomination of Parliament's representatives was such that in a broad and nuanced political party landscape of minority parties, it could exclude certain voices. 43 Although Parliament met a number of times in a committee of both Houses -in itself a pretty unique circumstance -to discuss the state of affairs in the convention, this was similarly deliberative and did not seek to steer the position to be taken by the representatives.

Implementing legislation
Obviously, the position of the legislature in implementing EU directives and framework agreements is of necessity weaker than when the legislature acts autonomously. For all intents and purposes, the right to amend bills is diminished to what is allowed by the EU measures. Very often, legislative implementation is through executive orders on the basis of a delegation clause in legislation. The more open the delegation clause, the broader the discretion for the executive to set the norms which they themselves execute. This reinforces executive dominance. Moreover, there is a uniquely Dutch point of view in the doctrine that the autonomy of EU law also means that its legal effect in the Dutch legal order is not governed by national constitutional law. Although this conflicts with the very purpose for which the constitutional provisions on the effect of decisions of international organizations were introduced in the 1950s, even the penal chamber of the Hoge Raad (Supreme Court) has endorsed this view in an obiter dictum, in a judgment within days after the conclusion of the Treaty on a Constitution for Europe. 45 This view, if it were taken to its logical conclusion, would place EU law outside the purview of Parliament and the other constitutional organs unless EU law itself attributes powers to them. This would emasculate the powers of Parliament whenever the executive acts within the framework of the EU. Luckily, this position has not been taken up explicitly, although the previous Government took the view that under the Lisbon Treaty Parliament can only take positions which are binding on the Government if and when the Treaty explicitly attributes a role to national parliaments. 46 This comes very close to saying that the EU treaties determine the cases in which national parliaments can make use of their constitutional powers.

Structure and organization of the executive in European affairs
Executive dominance in EU affairs is in line with the traditional situation for foreign affairs. Though European affairs have traditionally been dominated by the Ministry of Foreign Affairs, this is less so now. Instead of reducing executive dominance, however, the normal non-foreign affairs part of the executive has acquired a dominance vis-à-vis Parliament in European affairs which it previously did not have in autonomous national affairs. European affairs have become, broadly speaking, internal affairs; in internal affairs with a European aspect to them, the executive has been able to assert a dominant position over Parliament which it did not previously possess.
The increased 'spread' of European affairs over different ministerial departments has increased the difficulty of coordinated executive action. An investigation by the Algemene Rekenkamer (Court of Audit) of 2004 indicated that, in the various ministries, there was usually no complete and uniform file available for the 60 dossiers it analysed with a view to Government informing Parliament on these files, but such a file needed to be 'composed' for the occasion, while in many cases information was incomplete or missing. 47 Usually, the substantive knowledge was in the policy directorates, while the knowledge of the negotiation process and communication with Parliament resided in the EU or international directorates.
Evidently, the incoherence of information within the executive increases the difficulty of a parliamentary grip over executive action in European affairs. Many reports have appeared on the improvement of the executive coordination of European affairs in the past few years. They acknowledge that a lack of such coordination makes it more complicated for the executive to provide information to Parliament. 48

Dependence on the executive in parliamentary scrutiny
The tendencies towards executive dominance over Parliament are, of course, counteracted by the attempts of Parliament at involvement whenever EU decision-making is involved. For this, the informa-at involvement whenever EU decision-making is involved. For this, the information position of Parliament is crucial.
organizations under public international law, which are binding everyone.' There is a minority view that the overriding effect of directly effective international law over constitutional provisions is restricted only to treaties which have been adopted with a two-thirds majority under Art. 91(3) Grondwet, i.e. treaties which Parliament has declared to deviate from the Grondwet. This is relevant to EC and EU law as the founding and amending treaties were never approved under this provision.

The success of the consent requirement and its abolition at the Government's initiative
Most successful in this respect was no doubt the introduction of the consent requirement with regard to binding decisions in the area of Justice and Home Affairs and of the Area of Freedom, Security and Justice whenever there was no co-decision involving the European Parliament. This gave Parliament an instrument to force Government to give full information at all stages of the decision-making process as long as the Houses had not given their consent. Whenever the Government was reticent in providing information, when it gave incomplete information or was slow in providing information, the Houses (in practice nearly always acting upon the proposal of the Eerste Kamer Committee for the Justice and Home Affairs Council) could and would refuse consent until the matter was cleared. The consent requirement was in practice not a veto power that would ever be exercised, except in very unusual circumstances. A brief investigation of the practice before and after the abolition of the consent requirement with regard to the Area of Freedom, Security and Justice after the introduction of co-decision is telling. As a consequence of the move to co-decision, 49 the consent requirement was abolished, as stipulated under the Act of Approval of the Treaty of Amsterdam. Whereas before co-decision was introduced, the Eerste Kamer in particular showed a relatively intense interest in decision-making, the Eerste Kamer no longer took any significant initiative afterwards, not even with regard to such highly sensitive issues as the Schengen Border Code, 50 the establishment of SIS II, 51 or the powers of the Frontex Rapid Border Intervention Teams. 52 The main explanation for this is that it received significantly less information from the Government; or rather, as a consequence of abolishing the consent requirement it no longer had an instrument to force the Government to keep it informed of the state of play in negotiations and the position which the Government took on draft legislation. 53 Apart from the fact that the consent requirement was abolished with the entry into force of the Lisbon Treaty, except for a very small number of issues, most EC and EU measures have always been outside the scope of the consent requirement. Here, the information position of Parliament is -at least in practice -comparatively weak.
The success of the consent requirement with respect to the information position of Parliament became clear immediately after the entry into force of the Lisbon Treaty. The Eerste Kamer Committee for the Justice and Home Affairs Council noticed a significant decline in the provision of relevant documents by the Government since the abolishment of the consent requirement. The committee entered into correspondence with the relevant minister and eventually invited him to discuss the matter orally. 54 During this oral deliberation the minister was requested to inform the committee in the same way as he used to do under the consent requirement. The minister promised to inform the committee more extensively, yet there are still some documents which will not be forwarded to the committee that they previously received. For example, documents which are qualified as 'limité' will not be submitted, whereas this was common practice under the consent requirement. 55

The fiches in practice
Initially, Parliament had made itself practically entirely dependent on the information from the Government on EC and EU matters, thus reaffirming executive dominance. 56 Only in recent years has Parliament become aware of the limitations this poses. As to the present practice with the fiches, it is a wellknown fact, also admitted by the Government, that they are usually too late. They very often appear after negotiations have begun, which diminishes the scope for parliamentary influence.  57 This does not necessarily mean that the matter has already been dealt with in the EU Council. In an estimate by the Algemene Rekenkamer: around one third of the fiches reach Parliament after the matter has been decided in the Council -but this figure may be distorted; the estimate does not appear to take into account the various ways in which a proposal can be put on the Council agenda, or the various kinds of status such proposals may have.
The introduction of the shorter fiches has not really remedied the situation. Briefer versions of the already brief fiches usually mean less information, but what is more decisive is the fact that they are hardly used in practice.
The State Secretary for European Affairs, who made his own evaluation shortly before the Algemene Rekenkamer published its results, was above all happy with the improvement since 2005 (the reduction to, on average, a 35-day delay!); but he promised once again to improve his ways. 58

The agenda procedure
It should be stressed that the fiche is usually not the only information sent to Parliament by the Government. 59 In approximately two thirds of the cases, extra documents are sent, of which the annotated agendas form an important part. Occasionally, the Government provides information, mostly in the annotated Council agendas, before a fiche has been prepared. 60 In the agenda procedure, the annotated agenda of an EU Council (or European Council) meeting is discussed briefly before the relevant meeting takes place. In a number of cases the agenda item will have an accompanying fiche, but often the annotation is the only information on the basis of which Parliament discusses the matter.
This annotation is often significant in that the negotiating position is made clear. This clearly has the potential to trigger political interest. There is no certainty that in cases in which a fiche is available, the Tweede Kamer makes full use of that information, but in the absence of a fiche, it may be more difficult for the Tweede Kamer to assess the importance of a certain agenda item. The Algemene Rekenkamer has established that with regard to the 'second pillar' , the discussion was never on the basis of a fiche as none was made. 61 The only information Parliament has to go by is the annotation by the Government to the relevant agenda items.

Does it make a difference and does it matter?
Two more issues are whether Parliament in practice proves really to care about the information provided on EU affairs, and whether the Government really cares what Parliament's views are. On both scores the evidence of some years ago is not reassuring.
In 2004, the Algemene Rekenkamer undertook an in-depth analysis of the files and fiches on the basis of a stratified random sample of 60 files and how they were treated in the Tweede Kamer. (This analysis has already been referred to above.) Of these 60 issues, 23 were put on the agenda for debate at least once in one of the standing committees of the Tweede Kamer; on 14 occasions a question was put in a committee meeting; written questions were posed on four issues, and twice a resolution was proposed. In four 57 The figures are in the Algemene Rekenkamer report, Aandacht voor financiële gevolgen van Europees beleid;Terugblik 2009, 29 September 2009, Kamerstukken II 2009-2010 Letter of the State Secretary for European Affairs Timmermans of 29 June 2009 containing his own evaluation of the fiches procedure, Kamerstukken II 2008-2009, 22 112, No. 884. 59 Algemene Rekenkamer 2004; this occurred in 23 out of 220 letters sent by ministers to the Lower House which were analysed. 61 Ibid., p. 23. cases, the Tweede Kamer requested and obtained further information. Out of the 60 subject files, five fiches were used and discussed intensively by the Tweede Kamer. 62 It was also found that where matters were put on a committee agenda, in the majority of cases the matter was not discussed due to an overload of agenda items. 63 In the same report the Algemene Rekenkamer found that there was a 'great discrepancy' between what was contained in the files at ministerial departments concerning information to and from the Tweede Kamer, and what could actually be traced in the official Parliamentary Documents. Interviews at the ministerial departments revealed that often the officials dealing with the substance of a file did not know that the Lower House had been informed, nor did they know anything about what the result of Lower House action was concerning the relevant file. 64 This gives food for thought, and implies that not only is there executive dominance over Parliament in EU affairs, but more disconcertingly, the executive is not interested in what Parliament's actions and views are with regard to EU affairs.

Alternative sources of information
One cause of information asymmetry is that many MPs are often not highly informed or very knowledgeable about EU affairs in general. This is also the case for MPs elected on the anti-European ticket of the populist parties from the left and right. This means that unless clerical support is rallied, and civil society (NGOs and the like) brings issues to the attention of Parliament, these will not easily be picked up independently by MPs or their parliamentary groups.
In 2010, clerical support was such that the EU Affairs Committee of the Lower House has 8 fte substantive expert support, over and above one clerk and a secretarial staff of one (in 1993 it was still only 0.5 clerk, 0.25 staff and a 0.25 secretarial support). The Eerste Kamer committee has one expert and one further support staff; its Europa Bureau has 4 staff members and 2 deputy clerks, as well as two information specialists. The Tweede Kamer EU committee has a separate travel budget, which is significantly higher than for other permanent committees, but lower than for the Foreign Affairs Committee; the Eerste Kamer committee does not have a separate budget for travel for the committee. Since 2004, the States General have a permanent representative of the Eerste and Tweede Kamer in Brussels, Mr Overbeeke, who liaises between the institutions and the States General, and can bring proposals to the attention of the Houses at a very early stage.
The Eerste Kamer has an open website, 'Europa portaal' , through which information and documentation per file is collected and made available. 65

Independent information gathering and 'politicization'
The States General has for a long time been receiving all Commission documents directly from Brussels, but it has taken a long time to set up a procedural mechanism to deal with these independently. This really only started to take shape with the introduction of the subsidiarity review.
For politicians, it is the Government's position which is the major cue for MPs to take a stance on issues. In EU affairs, this position tends not to be a highly politicized view, either because the substance of the issue is highly technocratic, or to avoid parliamentary controversy; so parliamentary activity is not easily triggered spontaneously.
In this light it remains to be seen in practice how the new approach introduced as of September 2009 in the Eerste Kamer, indicated above, will work out. The abolition of the coordinating and stimulating role which the Committee on European Cooperation Organizations played (its 'gatekeeper' function) is supposed spontaneously to be taken over by the regular standing committees. This may only work in practice if the subsidiarity scrutiny is taken as a cue in order to create a political approach to the EU files.
The abolition of the Joint Committee on Subsidiarity, due to a perceived lack of added value by the Upper House, may highlight the question whether separate scrutiny is in fact more efficient, although 62 Ibid.,p. 23. 63 Ibid.,p. 43. 64 Ibid., The website is not very transparent and 'user friendly', as is true of many documentary websites of national parliaments on EU affairs. it is claimed to save time. The intention is to have a mutual exchange of information by the committees of each House as to which decisions are under scrutiny. This still has to prove itself in practice. 66 The simultaneous undertaking of the Eerste Kamer not to engage in the scrutiny of proposals which are under scrutiny at the Lower House may prove counterproductive, in as much as the quality of the scrutiny by the Lower House has on the whole been inferior to that of the Upper House.
Again, one should not expect a subsidiarity review to work wonders. Experience has confirmed that national positions which governments take on the matter tend to be reproduced at the level of the national parliaments. Small wonder, as governments tend to be supported by a parliamentary majority. Moreover, national positions in EU affairs tend not to be overly divisive along the political lines of government/opposition cleavages.
The major advantage of subsidiarity scrutiny may be that Parliament is involved and has informed itself about some European dossiers from a very early stage -but some dossiers only, as the subsidiarity test is limited to legislative proposals, and 'legislative' issues do not take the highest place in the priority ranking of the more political branch of parliaments either in the Netherlands or in other parliamentary systems.

IV. The States General as a European Parliament: Parliamentary Legitimacy of the EU
In the academic literature, the view has been put forward that the role of national parliaments within the encompassing constitutional order of Europe depends on whether one views them as exclusively bound to their national constitutional context, or views them within the larger complex of interacting public institutions, empowering and regulating the exercise of public authority in Europe. In the latter view national parliaments may gradually become actors within the EU system as such. 67 This would mean that a national parliament -representing EU citizens -would directly communicate with the European institutions, and the European institutions with the national parliaments, as well as parliaments with each other.
We briefly discuss the extent to which this has taken shape for the States General, and the various forms it takes.

Parliamentary participation and cooperation beyond the national constitutional order
Both Houses do not consider their position in a dogmatic way as being exclusively linked to and merely functioning within the national constitutional setting. Beyond the national constitutional setting, we distinguish between the dynamics from Europe directly to the national parliament and that from the national parliament to Europe.

From Europe to the national parliament
One form of parliamentary involvement beyond the national constitutional institutions is the round of visits which the European Commission President has made to national parliaments of all the Member States, during which he has debated with parliaments to defend the Commission programme. The speech by Barroso and the plenary debate with the Assemblée Nationale in 2006 was exemplary. 68 In the Netherlands, however, the Commission President did not have that kind of public reception. Unlike heads of state and government, he has never been received in order to speak to the States General in Joint Session, nor in any of the Houses. The speech to the States General has remained off the parliamentary records, and the questions posed on that occasion to Barroso as well as his answers have remained confidential. The opportunity to hold an EU institution to account in Parliament was not seized.
Another aspect is that members of the European Parliament, who have been elected in the Netherlands, have the right to speak and participate in the deliberations of the Tweede Kamer. 69 For a number of years they have been invited to Parliament to intervene in the yearly debate on the State of the European Union. In addition, MEPs are welcome at the EU committee meetings (though there is no information on whether they attend). A similar possibility is not provided for in the Rules of Procedure of the Eerste Kamer. 70 Initially, the Tweede Kamer showed extreme caution in allowing MEPs to speak in the plenary. The anecdote is recounted that the first time MEPs showed up to take their seats in the front row in the Lower House, some members of the Tweede Kamer quickly occupied the seats intended for the MEPs to prevent them from taking such prominent places. Also, a discussion took place on whether, as a matter of principle, they were allowed to pose questions to the Government and whether the Government should be allowed to answer them, as Article 68 Grondwet seemed to suggest to some that there is an exclusive communicative relation between the members of the States General and the Government. These matters now seem to belong to the past.

From the national parliament to Europe: the political dialogue under the Barroso initiative
Another, and perhaps more significant, form of parliamentary activity beyond national constitutional boundaries is the 'Barroso initiative' undertaken by the European Commission since 2006, in order to consult the national parliaments before a definitive Commission proposal has been formulated. This is viewed by the responsible commissioner, Wallström, and by Barroso as a 'political dialogue' with 'unprecedented' possibilities for national parliaments 'to give comments, criticism and positive feedback on Commission proposals, and the Commission the opportunity to both listen and to explain better' . 71 From the annual reports which the Commission has published on the response from national parliaments to pre-legislative draft proposals, it appears that the Dutch Parliament has not fully seized its opportunity to give its input and full assessment of the Commission proposals. After a slow start, the States General have increased their response over the years, from 2 in 2006 and 1 in 2007 to 8 registered opinions in 2008, and 19 in 2009. 72 Unlike some other parliaments, the States General took a fairly limited approach to the 'political dialogue' by restricting themselves to a 'subsidiarity review' (which in Dutch practice includes an assessment of the legal basis under Article 5 EC and proportionality) instead of giving a full political assessment of the draft proposals. If the States General have concluded that there is no 'subsidiarity' problem, they do not state why, nor do they communicate any further political assessment, so no response from the Commission is elicited. The full merits of the draft proposal have so far not been made the object of communications with the Commission, although the Commission has explicitly solicited such an assessment on the merits. Yet, we notice a marked broadening in the comments provided on Commission proposals. Nevertheless, the Dutch Parliament's assessments do not always seem to make an impact. A striking example was the proposal for a Directive on quality and safety standards for human organs intended for transplantation, which was the object of intense scrutiny by the Tweede Kamer. Its final assessment that it infringed the principle of subsidiarity was, however, totally ignored by the Commission, possibly due to the late conclusion of the assessment and the phrasing of its first response to the Commission: courteous but critical in Dutch eyes, favourable in the eyes of the Commission. 73

Subsidiarity review
Finally, there is the subsidiarity review. A central role was played by the Temporary Joint Committee for Subsidiarity Review, but, as we mentioned above, that body has been defunct since 1 September 2009. Since a fiche is only produced when an official Commission (or sometimes Member State) proposal has been published, while a subsidiarity review (in its broad sense, and including a review of proportionality and legal basis) occurs in an earlier phase, there are no fiches available to take as a starting point. If a fiche is produced on a dossier for which a subsidiarity review has taken place, this is included in the fiche. In practice, the regular standing committees of both chambers select a number of draft proposals on the basis of the European Commission's legislative and work programme.
The Lisbon Protocol on Subsidiarity and Proportionality (despite its name) only seems to grant national parliaments a right to issue a reasoned opinion to the Commission based on subsidiarity, according to the Commission's own fairly technical definition. 74 As we have mentioned above, however, the States General have not restricted their judgement to a narrowly defined subsidiarity test, but have extended their judgement to cover issues of proportionality as well as an assessment of the legal basis for the legislative proposal.
This is quite understandable, as subsidiarity, even in a strict definition, involves a broader political assessment. The Dutch Government had stated upon the adoption of the Act of Approval of the Lisbon Treaty that it supports the continuation of the practice to take a broader approach so as to include a review of proportionality and legal basis. 75 Moreover, the broader approach is by no means a uniquely Dutch phenomenon, as proven by the COSAC pilot projects on subsidiarity. 76 As a matter of fact, the European Commission takes an even broader view by relating the role of parliaments in the context of subsidiarity to a full political dialogue on its proposals. 77 Three questions on the future consequences of this practice remain, however. The first is whether the Commission will attach any consequence to an objection on the proportionality or the legal basis of the proposed legislative measure. A second point concerns the relation between the political dialogue of the Barroso initiative and the subsidiarity procedures. It is unclear to what extent the political dialogue will recede into the background under pressure from the 'yellow' and 'orange card' procedures. On the one hand, the Dutch Parliament has never fully seized the opportunity of a broad political dialogue with the Commission on draft proposals but has limited itself to issues of their subsidiarity, proportionality and legal basis. On the other hand, this scrutiny has most recently been taken more seriously by the Tweede Kamer than before, and has been broader in scope than before.
Thirdly, the effects of the strict subsidiarity review under the Protocol's procedures might lead a national parliament to take a narrow view of its role within the larger EU framework. This seems to be the case with the States General.

Judicial protection of national parliaments at the Europan Court of Justice
The pre-Lisbon Protocol on the Role of National Parliaments may already mean that if the time limits stipulated therein within which national parliaments must be informed of legislative proposals have not been respected, this legally vitiates the validity of an EC measure taken. No case, however, has been brought to the ECJ arguing that invalidity. It would have needed an initiative from a parliament affected by that procedural shortcoming to have its government bring an appeal for annulment. In German law, the federal government has been under the obligation to bring such a case to the ECJ since the entry into force of the Maastricht Treaty. 78 Similar legislation does not exist in the Netherlands. A new element in Protocol No. 2 is that Article 8 provides for actions for the annulment of an EU act being brought to the ECJ not only by Member States (read: governments), but also by parliaments for an infringement of the subsidiarity principle. It provides that the ECJ shall have jurisdiction in cases 'notified by [the Member States] in accordance with their legal order on behalf of their national Parliament or a chamber thereof ' . The language reveals that it is not the government or Member State which is actually bringing the action, but the parliament or a chamber thereof: the government merely 'notifies' it. Parliaments are thus recognized as true actors in their own right within the EU constitutional order, prised away from the grip of their governments in the particular context of European Union decision-making, also vis-à-vis the European Court of Justice.
In the Netherlands, the Act of Approval concerning the Lisbon Treaty failed to provide for a legislative right for Parliament and a concomitant duty for Government to bring a case to the ECJ. As implementing legislation is in practice passed together with the Act of Approval of a treaty necessitating implementation, 79 it would seem to follow that the Government did not intend to create a binding obligation on its part. After the entry into force of the Lisbon Treaty, however, the Government has announced that it will act upon a legally not binding resolution (Dutch: motie) or a decision of the Houses to bring an action for annulment before the ECJ for an infringement of the subsidiarity principle on behalf of the chamber(s). 80 Parliament decides on the contents of the appeal, which means that the agent of the Government at the court in Luxembourg only fulfils a notifying role. Overall, the question remains why this procedure was not included in the Act of Approval. The way in which this method is now arranged might be considered as politically binding. Th ere is, however, no legal obligation for the Government to comply with a request of either one or both Houses, as a resolution or a decision of the chamber cannot be regarded as legally binding on the Government.

Relations with other national parliaments
The position of the Dutch Parliament towards the COSAC is currently somewhat ambiguous. This can in part be explained by the preoccupation of the Eerste Kamer with disbanding the Joint Committee on Subsidiarity, and creating a procedure which should do more justice to its 'complementary' nature in relation to the Tweede Kamer's more prominent political role. Initially, the Tweede Kamer, or some of its key members in this respect, had high hopes of the potential role of COSAC in formally coordinating the subsidiarity mechanism after the entry into force of the Lisbon Treaty. To that effect, a proposal was made to COSAC at the Bled-Brdo meeting (May 2008), which was finally rejected at the Paris meeting in November 2008. Instead it is now left to parliaments themselves to exchange relevant information in the course of the subsidiarity procedure under Lisbon, via the IPEX website. This seems to have disillusioned some Dutch MPs.
In view of the frequency of COSAC's meetings and the limited number of concrete policy files dealt with (only two per year), COSAC, which has always had a very limited institutional role to play in effective interparliamentary political exchange, is not considered an appropriate body in that respect. COSAC is a useful instrument, but its usefulness is restricted, is the prevalent view. Also, the fact that COSAC is a forum for European affairs committees, not of sectoral and subsidiarity committees, imposes restrictions. The permanent representatives of the national parliaments in Brussels are, however, considered to be of great importance for interparliamentary contacts between MPs. 81

The relations with the European Parliament
At the practical level, the relations with the European Parliament are quite limited. No new initiatives have been developed, as requested by the Brok resolution of the European Parliament (6 May 2009). At staff level, contrary to the well-established relationship with the Commission, contacts with EP officials are ad hoc. At the political level, ways are sought to bring MPs and MEPs together, but of existing possibilities, the speaking time for MEPs at the annual State of the Union debates, mentioned above, is the most concrete example. At party level, there are periodic meetings between the members of the political groups represented in the States General and the MEPs of the same party, but these do not appear to be the powerhouses for exchanging political information on concrete dossiers of common political concern.
At the ideological level a deeply enshrined major obstacle to close cooperation between the States General and the European Parliament is the doctrine of their mutual exclusiveness. From the beginning onwards, the role of national parliaments has been understood to be mainly a compensation for the lack of democratic parliamentary legitimacy at the European level. This lack of democratic legitimacy is not viewed in factual political terms, but in terms of formal competence: the lack of formal co-decisive power of the European Parliament is considered the main justification for the Dutch Parliament's involvement in European affairs.
It was the reason for introducing the consent requirement in the context of the Schengen Implementing Convention, the Third Pillar of the Maastricht Treaty, and the introduction of the Euro. The formalism went so far as to stipulate in the Act on Approval of the Amsterdam and Nice Treaties that the consent requirement was automatically rescinded as of the moment that for issues within Title IV of the EC Treaty (Area of Freedom, Security and Justice) the unanimity procedure was exchanged for the regular co-decision procedure. The lack of a formal role for the EP was not only the reason for giving a strong role to the national parliament; the existence of formal co-decisive powers was also a reason to take away that role from the national parliament.
The constitutional logic of this reasoning may be highly disputable, 82 but the previous Government was happy to use it, and took the initiative to abolish the whole of the consent requirement in the Bill for the Approval of the Lisbon Treaty. It was even a reason for the Government strongly to resist the introduction in that Bill of a formal scrutiny reserve. 83 The Government maintained that in practice this would have the same effect as a consent requirement, because it would enable Parliament to retain a reserve until the Government yielded to Parliament's wishes. On the consent requirement, the Government largely got its way through the use of pressure on the coalition parties in the Tweede Kamer -giving them their 'marching orders' as a prominent Labour MP called it off the record. On the second, it only mellowed when an amendment on a 'scrutiny reserve' in a weakened form was proposed, which was supported by a majority of the House: a 'scrutiny' reserve can be imposed by either of the Houses on issues of particular political importance within two months after the European proposal is received (see also Section II, Subsections 2.3 and 2.4).

V. Findings and Conclusions
We first sum up some distinctive elements regarding the parliamentary legitimacy of national government action regarding the EU, in light of the question whether Parliament's activity has been able to offset the increased executive dominance. Secondly, a short assessment is given of Parliament's role in the legitimacy of the EU itself. We end with an overall assessment of the role of the Dutch Parliament in the EU decision-making process.
The Dutch Parliament has designed several instruments which are aimed at holding the Government to account with regard to EU affairs. Special among them was the consent requirement with regard to bind-82 See Van Mourik & Besselink, supra note 17. 83 See on this particular matter E.C.M. Jurgens, 'Senatu deliberante, Europam probat', 2009 RegelMaat, no. 5, pp. 274-275. ing Third Pillar decisions and intergovernmental decisions under Title IV of the EC Treaty, which was largely abolished with the entry into force of the Lisbon Treaty. The States General have been the only national parliament which formally had a legal veto power regarding secondary EU law. Its abolition of the consent requirement was based on the assumption that a national parliament only has a role to play with regard to EU decision-making if the European Parliament formally does not have a role -we return to this below.
The abolition of the consent requirement had immediate negative effects on the information position of Parliament, which is crucial for the attempts of Parliament to counteract the increased executive dominance. The abolition of the consent requirement weakened the information position of Parliament, as the instrument was mainly used to force the Government to keep Parliament informed on European decision-making.
The abolition may partly be compensated by the 'scrutiny reserve' introduced with the approval of the Lisbon Treaty. With respect to the Eerste Kamer it is questionable, however, whether or not the scrutiny reserve will have such an effect. In light of the new working method of the Eerste Kamer, the Eerste Kamer wants to complement and not overlap the work of the Tweede Kamer. Hence, the Eerste Kamer has announced caution in its use of the 'scrutiny reserve' . Under the consent requirement the Eerste Kamer used to have a different approach, which followed from the fact that the Government needed the consent of both Chambers of Parliament. Since the Eerste Kamer was regarded as the most active chamber with regard to scrutinizing EU decision-making, it would seem that the weakened information position negatively affects the Eerste Kamer's role especially. This makes it more difficult for Parliament to counterbalance the executive dominance in EU affairs.
The assessment as to Parliament's role in the legitimacy of the EU itself would be that the States General have been open to direct communication with the EU in the framework of the Barroso initiative and the subsidiarity mechanism, although with some reticence and quite a slow start. It is a regrettable, however, that the strict subsidiarity review under the Lisbon Protocol on Subsidiarity and Proportionality only seems to grant national parliaments a right to issue a reasoned opinion to the Commission based on subsidiarity. In the Netherlands this seems to have the effect that the States General take a narrow view of its role within the larger EU framework, although it is too early to make more definitive statements on this.
The overall assessment would be that the States General have all in all dealt with EU decision-making fairly actively. Over time, instruments have been put in place aimed at the scrutiny of the national representatives in the Council and European Council, thus enabling parliamentary legitimacy within national constitutional terms to their functioning within EU institutions. Instruments and practices have been developed also for direct scrutiny and communication of EU institutions concerning the Barroso initiative and the EU subsidiarity mechanism.
The instruments exist, although some have shortcomings, in particular the instrument of a parliamentary appeal to the ECJ (no adequate legal form binding the Government to bring a case) and the practice under the fiches procedure (the lack of timely provision of information and relative parliamentary neglect); for 'comitology' procedures no effective instrument has been designed, nor has attention been paid to them otherwise, thus effectively placing a large part of executive activity outside the sphere of parliamentary scrutiny.
The practice shows that most instruments have been used, though with different degrees of intensity and continuity in the two Houses of Parliament and their different parliamentary committees. Notably, they have been slow in using the European instruments, notwithstanding some (perhaps too) early enthusiasm on subsidiarity review. This reflects the relative 'cognative dissonance' of MPs with the EU and its affairs; EU affairs bring many MPs outside their comfort zone. This is not only because they are not all and equally well versed in EU affairs, but also because of the particular circumstance of a new Eurosceptic political mood which has been reigning in Dutch politics since the referendum of 2005 and which showed the extent to which politicians and electors can be out of touch on EU affairs. This may also explain the deep confusion of the distinct roles with regard to the parliamentary legitimacy of national actors in EU affairs and the parliamentary legitimacy of the EU itself. This confusion reached constitutional proportions in the justification for abolishing the 'consent requirement' . The abolition was based on the assumption that a national parliament has no role to play with regard to EU decision-making if and when the European Parliament has formal decisional powers in the relevant EU matter. If that were true, this would have two consequences. Firstly, it would mean that members of the national executive are no longer accountable to parliament -indeed, the national constitution would no longer be relevant to their action within the EU institutions. The second consequence would be that the EU institutions themselves, although they exert considerable powers over national subjects, need no longer to possess national parliamentary legitimacy. This runs counter to Article 12 of the TEU since the Treaty of Lisbon. As both these consequences are at odds with Dutch constitutional principles, the logic of the abolition of the 'consent requirement' -whatever its other merits or demerits -must be dismissed. Our final conclusion can therefore be that constitutionally the States General contribute to the parliamentary legitimacy of the EU, both in terms of national constitutional accountability and in terms of contributing to the legitimacy of the EU institutions themselves.