The legislative process: rules and procedures

Chapter 5. Parliamentary involvement in EU affairs in the Luxembourg Chamber of Deputies

5.1.2 The legislative process: rules and procedures

Mechanisms of the legislative process will be presented in this section, before exposing how EU affairs are perceived and handled on the national level. The position of the Chamber of Deputies in the decision-making process tends to be weakened because of resource disadvantages compared to the government. The latter plays a powerful role in initiating and determining the direction of the legislative process. Considering these elements derived from the general institutional framework, we will explain how EU affairs are being dealt in Luxembourg. These two sections will deal with the general mechanisms of the legislative process, both for domestic and European affairs.

5.1.2.1 The legislative process step by step

The legislative process starts with a legislative initiative, either from the Government in the name of the Grand Duke in form of a draft bill, or from the Parliament in form of a law

proposal (Dumont/De Winter, 2006). Furthermore, the Council of State also participates actively as the only consultative organ anchored in the Constitution (Besch, 2019). In case of a draft bill (“projet de loi”) initiated by the Grand-Duke, it is first formulated in ministerial departments and then approved by the Government during the Government Council meeting, depending on the opinion submitted by the Council of State. After the approval in the Government Council, the competent minister decides when to consult the professional chambers concerned by the draft bill as well as the Council of State (Besch, 2019). The minister has also to request the Grand-Duke’s approval to submit the draft bill to the Chamber of Deputies. The referral to the Council of State should happen the latest concomitantly to the deposit of the draft bill to the Chamber of Deputies. As the Grand-Duke has the sole competency to submit draft bills to the Chamber of Deputies, the competent minister has to prepare a Grand- Ducal decision authorising the minister to submit the bill in the Grand-Duke’s name (Besch, 2019). Once the Ministry of State approved the Grand-Ducal decision, the competent minister can introduce the bill to the Chamber of Deputies. The draft bill enters parliament with all attached documents, among others the consultative reports of the Council of State and the professional chambers. The parliament’s Conference of Presidents, composed of the Chamber’s President and the heads of the political groups, sends the draft to the competent parliamentary committee. In case of a law proposal (“proposition de loi”), one or more MPs have a right of initiative. The law proposal is submitted either to the President of the Chamber or the parliamentary administration during a plenary session. The Conference of presidents decides about its admissibility and transfers it to the competent parliamentary committees. The President of the Chamber transfers the law proposal to the Government and the President of the Council of State. The Government then seizes the professional chambers for an opinion.

Even though the opinions of the Council of State are not binding, they can suspend the legislative process for three months. Within the Council of State, opinions are established during committee meetings and under the responsibility of a rapporteur. After the opinion has been voted in plenary, it is transferred via the Central Directorate for Legislation (“Service central de legislation”) to the President of the Chamber of Deputies. At this stage, contacts between the Chamber and the Council of State are direct and bilateral (Interview 12, 2017). During the preparation of the opinion, civil servants from the Council of State maintain regular contacts with the civil servants from the parliamentary administration. Less frequently, meetings are organised between civil servants from the Council of State (its committees) and parliamentary committees working on a specific dossier. These exchanges happen mostly informally (Interview 12, 2017). Only opinions are public and accessible on the websites of the Council of State and the Chamber of Deputies. Each opinion assesses the general framework of a law proposal or draft bill, examines the articles and contains legislative observations (Interview 12, 2017).

After the Council of State and professional chambers submitted their opinion on the law proposal, it is sent back to the Conference of presidents, which then forwards it to the competent committee. At this stage of the procedure, amendments to the proposal or the draft bill are possible during discussions in the committee. A rapporteur is responsible to draft a report on the proposal, which is adopted by the committee and presented in the plenary. The Parliament votes during the plenary session on the law proposal or draft bill. During a plenary session,

parliamentarians can use different instruments to hold the Government accountable: written or oral (urgent) questions, question times, topical debates, interpellations, resolutions or motions (Poirier, In: Poirier, 2014). Interpellations are individual requests formulated by parliamentarians to government members to put a matter on the agenda of a plenary session. Motions are adopted by parliament and destined for the government to draw its attention on the necessity to take initiatives or adopt a specific position. Resolutions are adopted by parliament and destined for itself, exposing its willingness to take a decision or position.

The specificity of Luxembourg is the procedure of the second parliamentary vote, which has to take place three months after the first vote (Article 59 Constitution). Parliament can be exempted from the second vote if it agrees with the Council of State that it is not needed. The opinion of the Council of State is here mandatory, which confers it strong veto powers. According to Marc Besch, “[the] competency to grant an exemption of a second constitutional vote, attributed by the constituent to the Council of State to exert a second legislative assembly’s moderating influence on the Luxembourg unicameral system, is independent from its consultative mission” (Besch, 2019, p.274). The decision to proceed with a second constitutional vote belongs to the Chamber of Deputies. If parliament decides to discard a second vote, it transfers the adopted law proposal to the Council of State. The latter discusses the exemption during a plenary within the three weeks following the transfer of the adopted law proposal. However, second votes are relatively rare in practice, which means that both bodies usually agree on the exemption. Finally, the Grand-Duke needs to promulgate the law within the three months following the vote in the Chamber of Deputies.

Figure 4: Legislative process in Luxembourg (draft bills and law proposals)

LAW PROPOSALS

In Luxembourg, the government keeps a hand on the different stages of the legislative process (Dumont/De Winter, 2006; Interviews 3 and 11, 2017). Parliamentary initiatives are rather limited (Dumont/Spreitzer, In: Brouard/Costa/König, 2012; Schroen, In: Ismayr, 2009). The main reasons explaining the Chamber’s limited pro-active role in the decision-making process are the lack of sufficient parliamentary resources in terms of personnel, expertise, documentation and financial means. Governmental draft bills have usually priority within parliament and the Council of State (Dumont/Spreitzer, In: Brouard/Costa/König, 2012). Majority MPs can block initiatives from the opposition through their influence on the committee agenda or by voting against the proposal (Dumont/De Winter, 2006). In general, unbalanced information exchange between the Government and the Chamber gives the first more leeway in negotiations, be it on the national or European level. As the parliament is aware of its power disadvantage, it may be less inclined to oppose the government’s positions (Interview 3, 2017). Coalition parties benefit from the resources of the ministries and tend to follow governmental positions to ensure the coherence of their political line. Resource disadvantage and party

political strategies may then also affect the way EU affairs are being handled on the national level.

5.1.2.2 The handling of EU affairs on the national level

The Luxembourgish Constitution lays the foundation of the country’s participation in international treaties and specifically in European treaties (Articles 37 and 49b). The Grand Duke signs the treaties. European treaties have to be implemented in national law, either on the initiative of the Grand Duke or the Government. At governmental level, the Ministry for Foreign and European Affairs is the main interlocutor in charge of European affairs, together with the Prime Minister. The latter also endorses the role of Minister for European Affairs because of the significance of EU politics for the country (Interview 16, 2017). Due to the transversality of European matters, technical ministries are also involved in the examination process of EU dossiers. The department of international economic relations and European affairs within the Ministry for Foreign and European Affairs coordinates the European policies of the ministerial departments, ensures the coordination of European law implementation on the national level, prepares the annual report on the government’s European policy and the annual report on the implementation of directives for the Chamber of Deputies.

The handling of EU affairs happens in two ways: either “upstream” or “downstream” (Dumont/Spreitzer, In: Brouard/Costa/König, 2012). During the “upstream” process, technical ministries analyse EU documents on their own initiative depending on Luxembourg’s current interests. They draft comments on the documents and send their observations to the Permanent Representation of Luxembourg in Brussels. In case of diverging opinions between the Permanent Representation and the technical ministries, debates take place in the inter- ministerial committee for European policy (CIPCE). The CIPCE is chaired by the department of international economic relations and European affairs and groups ministerial high officials concerned with European affairs and Luxembourg’s permanent representative or deputy permanent representative. The objective of the CIPCE’s meetings is to coordinate the Luxembourgish position on EU matters and to follow-up the implementation of directives on the national level. During the “downstream” process, technical ministries analyse the consequences of adopted EU directives on the national level. They suggest implementation instruments to the Ministry for Foreign and European Affairs. The draft legal implementation text is then submitted to the Council of Government. After governmental deliberations on EU documents and concomitantly to the deposit of law proposals at the Chamber, the Council of State is seized to give its opinion on the European legislative acts or treaties. Professional chambers can also become active during this phase, basing their action either on their European network or on EU representations to obtain the needed information. After deliberation in the Council of Government, based on the opinion of the Council of State, the Parliament receives the draft law implementing the directive or European treaty.

The handling of EU affairs in Luxembourg is, like the general legislative process, slowed down by a continuous lack of administrative resources, be it on the ministerial or parliamentary side (Dumont/Spreitzer, In: Brouard/Costa/König, 2012). Luxembourg has a chronic problem with the implementation of directives. Coalition MPs usually benefit from

more information on EU affairs, thanks to the political proximity with the Minister for Foreign and European Affairs. The latter is backed by an extensive network of embassies and facilitates contacts to the Permanent Representation in Brussels (Interview 16, 2017).

5.1.3 Conclusions

The presentation of the main actors of the legislative process gave a general overview of their competences, roles and relationship between each other. The small size of the country and its political system is the most significant factor explaining the proximity between political actors and the civil society (Interview 16, 2017; Gaudron, 2004). This proximity is especially visible between the Government and the civil society, as well as between Government and Parliament through political parties. The latter exert a particular influence on the way Parliament participates in the decision-making. Most contacts, be they among national institutions or with the civil society, are informal and bilateral. For example, the Council of State has almost no direct contact with the Chamber of Deputies, despite its important role as veto player and guardian of the constitutionality of laws. Professional chambers maintain infrequent and non-institutionalised contact with the Parliament. The lack of coordination between institutions may result in divergent positions and confusion in the decision-making process. Consensual practices between the Government and the Chamber prevail at every steps of the legislative process, but can lead to the undermining of parliament’s power due to a lack of conflictual culture. The triangle of institutions influencing decision-making is composed of the Government, the Chamber of Deputies and the Council of State. Opinions from other bodies (professional chambers, social partners) are usually non-binding. The legislative process in Luxembourg tends to be dominated by the executive, which might explain why some matters are being granted with more importance than others in parliament. Despite the large pro- European consensus among political actors in Luxembourg, the handling of EU affairs in government and parliament is exposed to the same problems as domestic matters.

In document Parliamentary Involvement in EU Affairs During Treaty Negotiations in a Historical Comparative Perspective: the Cases of the Austrian, Finnish and Luxembourgish Parliaments (Page 99-105)