Select Committee on European Scrutiny Thirty-Third Report


3  The principle of subsidiarity

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 principle says … that action by Member States individually should be preferred unless the need for acting at the level of the Community can be clearly demonstrated."[6]

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".[7]

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."[8]

13.  Commissioner Wallström said that she thought that the overall assessment has to be political.[9] 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.[10] He also said that the principle is "long established, very alive, [and] very kicking".[11]

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 … . National 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:[12]

  • 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 indicators.
  • 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 powers."[13]
  • 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.[14]
  • 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 … ."[15]

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.[16]

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."[17]

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 of Ministers.[18]

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".[19]

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.[20]

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.[21]

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".[22]

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.[23] 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."[24]

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 local authorities".

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.[25]

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.[26] 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; and
  • 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 real utility."[27]

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."[28]

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

7   Q19. Back

8   Q38. Back

9   Q68. Back

10   Q127. Back

11   Q141. Back

12   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

13   Ibid, Article 6, first paragraph, last sentence. Back

14   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

15   Q27. Back

16   EV36. Back

17   EV38. Back

18   Q41. Back

19   Q52. Back

20   Q85 and Q86. Back

21   Q62 and Q64. Back

22   Q73, Q79 and Q84. Back

23   The Conference of European Affairs Committees of the parliaments of the Member States. Back

24   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

25   (29276) 16600/07: see HC 16-xxii (2007-08), chapter 1 (30 April 2008).  Back

26   (28694) 10516/07: see HC 41-xxxi (2006-07), chapter 1 (18 July 2007). Back

27   See HC 1014 (2006-07), para 68. Back

28   See HC 1014 (2006-07), para 19. Back


 
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