Historian and legal philosopher Thierry Baudet deserves a prize for his efforts in the EU debate, but he is off the mark. After collecting 63,000 signatures, he presented his citizen's initiative to the Dutch House of Representatives demanding a referendum on any future transfer of Dutch sovereignty to the EU. This is a variant of the British law of 2011: "any future treaty change transferring powers to the EU is automatically subject to a referendum." The British have many exceptions. They are neither in the euro zone nor in the borderless Schengen Area. The Netherlands are. Virtually every ministry is affected by Brussels. Most policies are in one way or another part of the European treaties. More is hardly possible, which means a referendum remains a distant vision. Baudet should turn the question around. What powers can be retrieved from Brussels and how can Parliament be a watchdog against unnecessary EU legislation?
In Germany, the Constitutional Court ensures that the rights of the Bundestag aren't violated. German money for euro rescue funds requires the explicit consent of the Bundestag. The Court held that the EU's Member States are its source of legitimacy, not the EU institutions. The Member States are the 'Herren der Verträge'; the EU is only an 'abgeleitete Grundordnung'. The Court sees a 'tendency to self-exaltation' in the European institutions. That's right. The European Commission and the European Parliament see themselves as the source of law of European integration: the Commission as the 'European government' and the European Parliament as the representation of the 'European People'. It is a self-coronation à la Napoleon and it is leading to more and more powers for the EU institutions. There is no gap between Europeans and Europe - who can be against his own continent? - but between Europeans and the European institutions. The national parliaments are the source of democratic legitimacy for the peoples of Europe.
Having rejected the European Constitution in 2005, national parliaments gained greater influence. With a 'yellow card', a third of the national parliaments can temporarily block a proposal from the Commission so that it can be adjusted. This card has been used three times. Next, half of the national parliaments can torpedo a proposal with an 'orange card'. That has never happened, but it almost did on the proposal for a Common Consolidated Corporate Tax Base (CCCTB). Ideas for a 'red card' (stopping new legislation) or a 'green card' (repealing old legislation) are also circulating. The problem with these card games is the short time spans and the fact that national parliaments are unfamiliar with the procedure, which is exactly what the EU wants.
The central problem of the EU is the lack of Ordnungspolitik. The EU has a number of key tasks, such as the common market, the monetary union, trade policy and competition. However, most powers are shared with the Member States, such as social policy, or have a 'complementary role', like in culture. Jochen Bittner, a correspondent of Die Zeit in London, wrote in an opinion article in the New York Times (09-Jan-2014): "the EU is too soft on the hard issues and too hard on the soft issues". Fiscal discipline, countering protectionism, and enforcing fair competition are painful and unpopular. So what does the Commission do? It takes ambitious initiatives in the social field, such as an arrangement for longer maternity leave, shorter working hours, the use of ladders by construction workers, vibration rules set to limit tractor driving time. A wide gradation of social funds turns the EU into some kind of Santa Claus. This 'popular' urge to legislate spreads in all policy directions, such as culture, sport, youth, urban planning and regional transportation. The criticism from the European Parliament is generally: it is not enough, we want more of the same. Member States are better at making such policy, but an effective brake on expansive EU legislation is lacking.
National parliaments should raise a barrier against this legislative steamroller. The EU should focus on key tasks. Outside of these defined tasks the Commission should only propose legislation if two-thirds of the national Parliaments give a 'green light'. The burden of proof vis-á-vis the card game is reversed. Thus, the Commission needs to convince national parliaments that there is no infringement of sovereignty. After the European elections, negotiations should start on a new European treaty that defines the EU's key tasks clearly, so "side issues" can return to the States. National parliaments thus regain sovereignty. Baudet can then call for a referendum on that.