Exposition of the provisions
9. The principle of subsidiarity was introduced
into Community law by the Treaty of Maastricht in 1993. Article
5 of the EC Treaty provides that:
"In areas which do not fall within its exclusive
competence, the Community shall take action, in accordance with
the principle of subsidiarity, only if and in so far as the objectives
of the proposed action cannot be sufficiently achieved by the
Member States and can, therefore, by reason of the scale or effects
of the proposed action, be better achieved by the Community."
Article 2 of the EU Treaty currently provides for
the application to measures adopted under the EU Treaty of the
principle of subsidiarity as defined in Article 5 of the EC Treaty.
10. Professor Dashwood told us that the function
of the principle of subsidiarity "is to guide the choice
between acting collectively through the Community institutions
or using national powers where either possibility would be legally
permissible under the treaties
In guiding that choice the
that action by Member States individually
should be preferred unless the need for acting at the level of
the Community can be clearly demonstrated."
11. We asked Professor Dashwood whether the principle
of subsidiarity is capable of objective assessment. He did not
think a set of objective criteria could be developed and said
that whether a measure complies with the principle "is bound
to be a matter of judgment".
12. Professor Hix agreed. He told us:
"If you follow a purely legal definition of
subsidiarity, you would say that defence policy should be done
by the EU scale effects, a collective defence, public
goods would be provided more cheaply at central level
but clearly we do not do that because of the fact that we have
heterogeneous preferences on defence policy. I think it is impossible
to define in purely legal terms subsidiarity criteria and it is
really ultimately a political question."
13. Commissioner Wallström said that she
thought that the overall assessment has to be political.
And the then Minister for Europe (Mr Jim Murphy) told us that
he did not think that a set of criteria was needed to assess compliance
with the principle of subsidiarity.
He also said that the principle is "long established, very
alive, [and] very kicking".
14. Article 5(3) of the EU Treaty (as amended
by the Treaty of Lisbon) says that:
"Under the principle of subsidiarity, in all
areas which do not fall within its exclusive competence, the Union
shall act only if and insofar as the objectives of the proposed
action cannot be sufficiently achieved by the Member States, either
at central level or at regional or local level, but can rather
by reason of the scale or effects of the proposed action, be better
achieved at Union level.
"The institutions of the Union shall apply the
principle of subsidiarity as laid down in the Protocol on the
application of the principle of subsidiarity
Parliaments ensure compliance with the principle of subsidiarity
in accordance with the procedure set out in that Protocol."
15. With the exception of the last sentence,
the substance of Article 5(3) is identical to the provisions on
subsidiarity in the EC Treaty. It is not clear whether the last
sentence is intended to be descriptive or if it imposes a duty
on national parliaments. In either event, there is no precedent
for the statement in the EC Treaty.
16. Similarly, Article 12(b) of the amended EU
Treaty is unprecedented. It says that national Parliaments contribute
to the good functioning of the EU "by seeing to it that the
principle of subsidiarity is respected in accordance with the
procedure provided for in the Protocol".
17. The main provisions of the Protocol to the
Lisbon Treaty about the application of the principles on subsidiarity
and proportionality are as follows:
- All draft legislation should
contain a statement explaining why the proposal is compliant with
the principle of subsidiarity. The reasons for concluding that
an EU objective can be better achieved by EU action should be
substantiated by qualitative and, wherever possible, quantitative
- Within eight weeks of the transmission of a proposal
for legislation to national parliaments in all the official languages
of the EU, any chamber of any national parliament would have the
right to send the Council, European Parliament and Commission
a reasoned opinion saying why it considers that the proposal does
not comply with the principle of subsidiarity. "It will be
for each national parliament or each chamber of a national parliament
to consult, where appropriate, regional parliaments with legislative
- Each national parliament would have two votes
(one for each chamber in a bi-cameral parliament and two for the
only chamber in uni-cameral parliaments).
- Where reasoned opinions stating that the proposal
is not compliant with the principle of subsidiarity represent
one-third of the votes, the Council, European Parliament and Commission
(and any other institution which has proposed the legislation)
would be required to review the proposal.
- After review, it would be open to the institution
which originated the proposal to maintain, amend or withdraw the
proposal. It would be required to give reasons for its decision.
(This procedure is commonly known as the 'yellow card'.)
- Where the Commission originated a proposal and
the proposal was subject to qualified majority voting and co-decision
by the Council and the European Parliament, if a majority of national
parliaments gave reasoned opinions explaining why they believed
that the draft legislation was not compliant, it would be open
to the Commission to maintain, amend or withdraw the proposal.
- If it decided to maintain the proposal, the Commission
would be required to refer its own and the national parliaments'
reasoned opinions to the Council and the European Parliament.
If 55% of the members of the Council or a majority of the European
Parliament concluded that the proposal did not comply with the
principle of subsidiarity, the draft legislation would fall. (This
procedure is commonly known as the 'orange card').
- The European Court of Justice would have jurisdiction
to decide cases brought by a Member State on behalf of its national
parliament (or a chamber of it) on the grounds that EU legislation
infringes the principle of subsidiarity.
18. We note that if national parliaments trigger
the yellow or orange card procedures, the decision on whether
a proposal is compatible with subsidiarity will continue to rest
with the EU institutions.
19. Some of the evidence we received suggested
that "the early-warning mechanism" the yellow
and orange card procedures will significantly enhance
the role of national parliaments in the EU decision-making machine.
For example, Professor Dashwood told us that he was enthusiastic
about it. It seemed to him that use of the early warning mechanism
would have "a real impact on the political dynamic within
the Community". He added that, if there were a significant
number of national parliaments which took the view that a proposal
infringed the principle of subsidiarity:
"that is bound to have an impact on the prospect
of the measure being adopted, whichever of the procedures applies.
I think it would also make a difference
to any proceedings
that might eventuate in the [European] Court of Justice
20. Others disagree. For example, Richard Corbett
MEP said "in practice, I do not think that the 'yellow' and
'orange' card mechanisms will be extensively used". He cites
the experience of the Finnish Parliament. It has had a subsidiarity
control mechanism since its accession to the EU in 1995 and "in
that time has hardly ever found a case where they felt that a
Commission proposal violated the principle of subsidiarity".
Mr Corbett said that the principle is taken seriously by the
Community's institutions and that the Commission's legislative
proposals can be adopted only if they have the support of the
overwhelming majority of Member States.
21. Andrew Duff MEP goes further. He says that:
"there is a danger that, in assessing the Treaty
of Lisbon, national parliaments become obsessed by the early warning
mechanism on subsidiarity. It was understood by those of us involved
in its drafting and, then, re-drafting that the mechanism, although
a necessary addition to the system of governance of the Union,
was not really intended to be used. It is, in Bagehot's terms,
more a dignified part of the European constitutional settlement
than an efficient one."
22. Professor Hix had doubts about the effect
of the early warning mechanism but could also see some potential
benefits. On the one hand, he was sceptical that the mechanism
would make any real political difference in parliamentary systems,
such as the UK's, where the governments have a substantial majority
and so the extent to which national parliaments can actually constrain
what their government are doing in Brussels is limited. On the
other hand, there would be major benefits if use of the mechanism
led to an increase in transparency about what happens in the Council
23. Professor Hix also suggested that the "thresholds"
attached to the yellow and orange cards are too high. The threshold
for the orange card procedure, for example, is a majority of national
parliaments. Professor Hix contrasted this with the actual practice
of the Council of Ministers. He said that:
"It is very, very rare that legislation gets
passed [by the Council] with more than three Member States opposed".
24. We asked Commissioner Wallström for
her views on the thresholds. She said that the Commission should
listen to the views of national parliaments even if the number
of votes did not reach the threshold.
25. Professor Hix told us that he believed that
many of the Lisbon Treaty's provisions on the role of national
parliaments could be introduced by some other means such
as legislation or an intergovernmental protocol if the
Treaty were not ratified.
26. We asked Mr Murphy if he agreed. He told
us that he did not think an informal arrangement would work. Moreover,
he did not think there was a likelihood of the yellow and orange
cards being introduced by another means. The Government is not
attracted by the idea of adding parts of the Lisbon Treaty to
the Treaty on the accession of Croatia to the EU. Moreover, in
the Government's view:
"the Lisbon Treaty is a package and we are not
interested in renegotiating the text of the package or unpicking
parts and implementing by another route".
Our views and conclusions
27. Ever since the principle of subsidiarity
was introduced, this Committee and our predecessors have scrutinised
every EU document to see if it complies with the principle. This
is an essential part of the evaluation of the political and legal
importance of the document. Where we have concerns about compliance,
we seek to persuade Ministers to take up the concerns with the
European Commission and other Member States in the Council.
28. We agree with the oral evidence we have received
that the question whether a proposal complies with the principle
is unlikely to be capable of an entirely objective assessment
but is also a matter of political judgement. We are reinforced
in this view by an article written by Dr Stephanie Rothenberger
and Dr Oliver Vogt, former members of the COSAC Secretariat. Their
article was based mainly on their analysis of the way national
parliaments had interpreted the principle in checks coordinated
by COSAC. They concluded
that it was:
"clear that parliaments seem to interpret the
principles of subsidiarity and proportionality in very different
ways. Naturally the National Parliaments' assessment whether
new European legislation would bring added value is based on historical,
political and social experience at home."
29. In our experience, it is very rare for the
entirety of a proposal for legislation to be inconsistent with
the principle of subsidiarity. It is not uncommon, however, for
one of the provisions not to comply. For example, in December
2007, the Commission proposed a draft Decision to make 2010 the
European Year for combating poverty and social exclusion. When
we considered the draft in January 2008, we noted that Article
6(3) would require the national body responsible for organising
the Year in each Member State to consult its National Advisory
Group, which should be composed of:
"a broad range of relevant stakeholders, including
civil society organisations defending or representing the interests
of those who experience poverty and social exclusion, national
parliament representatives, social partners, and regional and
30. We questioned why it was necessary for EC
legislation to prescribe Member States' arrangements for taking
part in the Year. In particular, we found it wholly inappropriate
for EC legislation to require the appointment of representatives
of national parliaments to the National Advisory Groups. That
proposal was, in our view, clearly inconsistent both with the
principle of subsidiarity and the right of parliaments to regulate
their own affairs.
31. We asked the Minister to discuss the point
with the Commission and his colleagues in the Council. We were
pleased to learn in April that, in the course of the discussion
of the draft Decision, it had been agreed that Article 6 should
be less prescriptive and, in particular, that the requirement
for the appointment of National Advisory Groups should be removed.
32. There have also been occasions when we have
questioned a proposal on grounds of sovereignty. For example,
in June 2007 the Commission published a Green Paper on the
future Common European Asylum Policy.
It invited views on the ingredients of the next stage in the
development of the EC's asylum policy. It asked, for example,
if the current minimum common standards should be replaced by
mandatory requirements, removing the discretion allowed to Member
States by the existing EC legislation. We concluded that the Green
Paper posed important questions, some of which touched the sovereignty
of a Member State to decide for itself how and to whom refugee
status should be given. The Green Paper was debated on the Floor
of the House on 29 November 2007.
33. There may in future be proposals where it
might be difficult to deny that collective action by the EU would
be the most effective way to achieve a Treaty objective, but where
a national parliament would strenuously object to the proposal
because it infringes national sovereignty. If a proposal were
objectionable on grounds of sovereignty alone, neither the yellow
nor orange card procedures would be available to national parliaments.
34. Some may argue that:
- nothing can prevent the House
from expressing its opinion to the Government and the Commission
without the early warning system;
- if the adoption of a proposal requires unanimity
in the Council, a Government can prevent adoption if persuaded
by the arguments of its national parliament;
- where the adoption of legislation is by qualified
majority voting and co-decision and the UK will not be bound by
legislation unless it opts into it, the measure will not apply
if the Government agrees with the House that it should not opt-in;
- Commissioner Wallström told us that she
believed that the Commission would listen to national parliaments'
opinions even if the thresholds were not attained.
35. In relation to the thresholds required to
stop a proposal when national parliaments have triggered the orange
card procedure, we reiterate our earlier finding, contained in
our first report on the Intergovernmental Conference that adopted
the Lisbon Treaty: "... since this degree of opposition
[in the European Parliament and the Council] would in any event
be sufficient to prevent adoption of a measure by co-decision,
we consider that the procedure adds very little by way of democratic
control over the Commission and the EU institutions. In our view,
the required thresholds for preventing further consideration of
a proposal must be much lower if the procedure is to have any
36. We also reiterate our earlier finding on
the Lisbon Treaty's provisions on national parliaments, contained
in our first report on the Intergovernmental Conference that adopted
the Treaty: "... we doubt the significance of the "greater
opportunities" for national parliaments to be involved in
any meaningful manner in the workings of the EU without ... a
"red card" system that compels the Commission to withdraw
any proposal which threatens to breach the subsidiarity principle."
37. Our conclusions on the provisions of the
Lisbon Treaty on subsidiarity are as follows:
- The substance of the subsidiarity
Article in the Lisbon Treaty is the same in its effect as the
existing Article in the EC Treaty.
- Examination of EU proposals for compliance
with the principle of subsidiarity is a long-established and fundamental
part of the scrutiny process of the European Scrutiny Committee
of the House of Commons.
- Whether a proposal does or does not comply
is a matter of political judgement and is unlikely to be capable
of an entirely objective assessment.
- It is very rare for the whole of a proposal
to be inconsistent with the principle. It is less rare for one
of the provisions not to comply. We see no reason to expect that
this will change, although the extension of the EU's competence
under the Lisbon Treaty will offer additional areas for subsidiarity
disputes if that Treaty is ratified.
- Where we have concerns, we presently draw
them to the attention of the Government and, where it shares our
assessment, Ministers take up the concerns with the Commission
and other Member States. Again, we see no reason to expect that
this will change.
- We expect the Commission to listen to the
views of national parliaments even if the number of opinions does
not reach the levels set for the yellow and orange cards. We warmly
welcome Commissioner Wallström's statement that the
Commission should listen to the views of national parliaments
even if the number of votes does not reach the threshold.
- For these reasons, we doubt whether the Lisbon
Treaty's new subsidiarity provisions about the role of national
parliaments would make much practical difference to the influence
presently enjoyed by the UK Parliament.
6 Q3. Back
Protocol on the application of the principles of subsidiarity
and proportionality, Consolidated Texts of the EU Treaties as
amended by the Lisbon Treaty, pages 204 to 207 (Cm 7310). Back
Ibid, Article 6, first paragraph, last sentence. Back
The required number of votes is a quarter of the total where the
proposed legislation is on police and judicial cooperation in
criminal matters. Back
Q85 and Q86. Back
Q62 and Q64. Back
Q73, Q79 and Q84. Back
The Conference of European Affairs Committees of the parliaments
of the Member States. Back
Rothenberger S and Vogt O: Fifty Years of Interparliamentary Cooperation,
13 June 2007, Berlin: The "Orange Card": A fitting response
to national parliaments' marginalisation in EU Decision-Making? Back
(29276) 16600/07: see HC 16-xxii (2007-08), chapter 1 (30 April
(28694) 10516/07: see HC 41-xxxi (2006-07), chapter 1 (18 July
See HC 1014 (2006-07), para 68. Back
See HC 1014 (2006-07), para 19. Back