Reasoned Opinion of the House of Commons
Submitted to the Presidents of the European
Parliament, the Council and the Commission, pursuant to Article
6 of Protocol (No 2) on the Application of the Principles of Subsidiarity
Draft Regulation of the European Parliament and of
the Council on the Fund for European Aid to the Most Deprived
TREATY FRAMEWORK FOR APPRAISING COMPLIANCE WITH SUBSIDIARITY
1. The principle of subsidiarity is born of the wish
to ensure that decisions are taken as closely as possible to the
citizens of the EU. It is defined in Article 5(3) TEU:
"Under the principle of subsidiarity, in areas
which do not fall within its exclusive competence, the Union shall
act only if and in so far as the objectives of the proposed action
cannot be sufficiently achieved by the Member States, either at
central level or at regional and local level, but can rather,
by reason of the scale or effects of the proposed action, be better
achieved at Union level."
2. The EU institutions must ensure "constant
the principle of subsidiarity as laid down in Protocol (No. 2)
on the Application of the Principles of Subsidiarity and Proportionality.
3. Accordingly, the Commission must consult widely
before proposing legislative acts; and such consultations are
to take into account regional and local dimensions where necessary.
4. By virtue of Article 5 of Protocol (No 2), "any
draft legislative act should contain a detailed statement"
making it possible to appraise its compliance with the principles
of subsidiarity and proportionality. This statement should contain:
- some assessment of the proposal's
- in the case of a Directive, some assessment of
the proposal's implications for national and, where necessary,
regional legislation; and
- qualitative and, wherever possible, quantitative
substantiation of the reasons "for concluding that a Union
objective can be better achieved at Union level".
The detailed statement should also demonstrate an
awareness of the need for any burden, whether financial or administrative,
falling upon the EU, national governments, regional or local authorities,
economic operators and citizens, to be minimised and to be commensurate
with the objective to be achieved.
5. By virtue of Articles 5(3) and 12(b) TEU national
parliaments ensure compliance with the principle of subsidiarity
in accordance with the procedure set out in Protocol (No. 2),
namely the reasoned opinion procedure.
PREVIOUS PROTOCOL ON THE APPLICATION OF THE PRINCIPLE
OF SUBSIDIARITY AND PROPORTIONALITY
6. The previous Protocol on the application of the
principle of subsidiarity and proportionality, attached to the
Treaty of Amsterdam, provided helpful guidance on how the principle
of subsidiarity was to be applied. This guidance remains a relevant
indicator of compliance with subsidiarity. The Commission has
confirmed it continues to use the Amsterdam Protocol as a guideline
for assessing conformity and recommends that others do.
"For Community action to be justified, both
aspects of the subsidiarity principle shall be met: the objectives
of the proposed action cannot be sufficiently achieved by Member
States' action in the framework of their national constitutional
system and can therefore be better achieved by action on the part
of the Community.
"The following guidelines should be used in
examining whether the abovementioned condition is fulfilled:
- the issue under consideration has transnational
aspects which cannot be satisfactorily regulated by action by
- actions by Member States alone or lack of Community
action would conflict with the requirements of the Treaty (such
as the need to correct distortion of competition or avoid disguised
restrictions on trade or strengthen economic and social cohesion)
or would otherwise significantly damage Member States' interests;
- action at Community level would produce clear
benefits by reason of its scale or effects compared with action
at the level of the Member States."
"The form of Community action shall be as simple
as possible, consistent with satisfactory achievement of the objective
of the measure and the need for effective enforcement. The Community
shall legislate only to the extent necessary. Other things being
equal, directives should be preferred to regulations and framework
directives to detailed measures".
7. The purpose of the draft Regulation is to establish
a new Fund for European Aid to the Most Deprived ("the Fund"),
with a proposed budget of 2.5 billion for the period 2014-20,
to alleviate poverty and material deprivation in the EU by supporting
national schemes for the distribution of food products and the
provision of basic consumer goods for the personal use of homeless
people or children. It would replace an existing EU Food Distribution
Programme for the Most Deprived, in place since 1987, which enables
Member States to use public intervention stocks of agricultural
products as food aid. Participation is voluntary but has risen
in recent years to include 20 Member States (but not the UK).
8. Unlike the Food Distribution Programme, which
is a measure based on the EU's Common Agricultural Policy, the
new Fund for European Aid to the Most Deprived is an instrument
of the EU's cohesion policy, based on Article 175(3) TFEU. This
Article provides for the adoption of specific actions outside
the framework of the EU's Structural Funds (the European Social
Fund and European Regional Development Fund) if necessary to achieve
the objectives of economic, social and territorial cohesion in
the EU. Although the Fund would be resourced from the Structural
Funds, it is intended to complement the objectives of the ERDF
and ESF by offering temporary relief to the most deprived, who
are also likely to be furthest from the labour market.
9. Member States would be responsible for identifying,
by means of objective criteria, those individuals, families or
households qualifying as "most deprived" and for selecting
partner organisations at national level to distribute food and
basic consumer goods. These may be directly purchased by partner
organisations or provided to them free of charge by a public body.
A small element of funding may be used by partner organisations
for social inclusion activities involving beneficiaries of EU
10. Article 3 of the draft Regulation defines the
legislative objective as follows:
"The Fund shall promote social cohesion in the
Union by contributing to achieving the poverty reduction target
of at least 20 million of the number of persons at risk of poverty
and social exclusion in accordance with the Europe 2020 Strategy.
The Fund shall contribute to achieving the specific objective
of alleviating the worst forms of poverty in the Union by providing
non-financial assistance to the most deprived persons."
11. The Commission estimates in its explanatory memorandum
that nearly one quarter of Europeans (116 million) are at risk
of poverty or social exclusion and approximately 40 million suffer
from severe material deprivation, adding:
"While the needs of those who are at the margins
of society keep growing, the ability of Member States to support
them has in many cases diminished. Social cohesion is threatened
by fiscal constraints more than ever before. In many Member States
it is felt that policies decided at European level are in some
way responsible for these developments."
12. The Commission suggests in the impact assessment
"[C]urrently more and more social stakeholders
and EU citizens perceive the EU as a threat for their personal
and collective protection. Action at European level is required,
all the more so, as a lack of social cohesion would hinder the
Union's further development and undermine its legitimacy in the
eyes of its citizens."
13. The Commission describes poverty and social exclusion
as major obstacles to achieving the balanced vision of economic
growth and social progress set out in the Europe 2020 Strategy.
It suggests that the type of emergency assistance provided by
the new Fund is needed to address continuing uncertainty "about
the ability of all Member States to sustain social expenditure
and investment at levels sufficient to ensure that social cohesion
does not deteriorate further" and to achieve the objectives
and headline targets of the Europe 2020 Strategy.
14. The Commission's explanatory memorandum justifies
the need for EU action as follows:
"EU action is justified on the grounds of Article
174 (TFEU) which provides for the Union to "promote its overall
harmonious development" by "developing and pursuing
its actions leading to the strengthening of its economic, social
and territorial cohesion", and on Article 175 (TFEU) which
specifies the role of the EU structural funds in achieving this
objective and makes provisions for the adoption of specific actions
outside the Structural Funds.
"EU-level action is necessary given the level
of poverty and social exclusion in the Union and the unacceptable
diversity of the situation among individual Member States, further
aggravated by the economic and fiscal crisis, which has led to
a deterioration of social cohesion and lessened the chances of
achieving the Europe 2020 strategy's objective in relation to
the fight against poverty and social exclusion."
15. In its impact assessment, under the heading of
"Right to Act", the Commission states that "Article
174 (TFEU) provides for the Union to 'promote its overall harmonious
development'. The first subparagraph defines the overall objective
of cohesion policy which is to 'strengthen economic, social and
territorial cohesion'. Cohesion policy is thus not limited to
acting on regional disparities."
It suggests that the new Fund is "strongly anchored in the
principle of subsidiarity", adding:
"While helping ensure the availability of emergency
assistance for most deprived people across the Union in the context
of the Europe 2020 strategy and thus contributing to strengthening
social cohesion in the Union, it leaves up to Member States and
their lower levels of government decisions that should be taken
at their respective levels."
16. In its impact assessment, under the heading of
"EU added-value" the Commission says:
"European financial support can demonstrate
the direct solidarity of the Union with the poor people, thus
taking up on the broad request by European citizens. It can encourage
the exchange of experience and information about the effectiveness
and efficiency of actions and it increases awareness of the situation
in which these groups are by actually asking Member State's representatives
to talk about the situation and to develop a sort of strategy
(Operational Programme) how best to address the immediate needs
of these people. Finally, it allows the Union to lead by example.
] As well as helping enable the most
deprived members of the society to maintain their dignity and
human capital it will contribute to the strengthening of social
capital and social cohesion within their communities.
ASPECTS OF THE REGULATION WHICH DO NOT COMPLY WITH
THE PRINCIPLE OF SUBSIDIARITY
17. The House of Commons considers that the draft
Regulation of the European Parliament and of the Council on the
Fund for European Aid to the Most Deprived does not comply either
with the procedural obligations imposed on the Commission by Protocol
(No 2) or with the substantive principle of subsidiarity in the
I) FAILURE TO COMPLY WITH ESSENTIAL PROCEDURAL REQUIREMENTS
18. By virtue of Article 5 of Protocol (No 2) "any
draft legislative act should contain a detailed statement
making it possible to appraise compliance with the principles
of subsidiarity and proportionality". The requirement for
the detailed statement to be within the draft legislative act
implies that it should be contained in the Commission's explanatory
memorandum, which forms part of the draft legislative act
and which, importantly, is translated into all official languages
of the EU. The fact that it is translated into all official languages
of the EU allows the detailed statement to be appraised for compliance
with subsidiarity (and proportionality) in all Member States of
the EU, in conformity with Article 5 of Protocol (No 2). This
is to be contrasted with the Commission's impact assessment, which
is not contained within a draft legislative act, and which is
not translated into all the official languages of the EU.
19.The presumption in the Treaty on European Union
is that decisions should be taken as closely as possible to the
EU citizen. A departure from this presumption should not be taken
for granted but justified with sufficient detail and clarity that
EU citizens and their elected representatives can understand the
qualitative and quantitative reasons leading to a conclusion that
"a Union objective can be better achieved at union level",
as required by Article 5 of Protocol (No 2). The onus rests on
the EU institution which proposes the legislation to satisfy these
20. The extent of the Commission's justification
for compliance with subsidiarity in the explanatory memorandum
is set out at paragraph 14 above. The first paragraph explains
why the legal bases of Articles 174 and 175 TFEU give the EU the
power to act (see further below); the second contains cursory
generalisations unsupported by any evidence (see further below).
There is no reference to the principle of subsidiarity.
21. The justification in the Commission's explanatory
memorandum falls disappointingly short of the contents required
of the detailed statement in Article 5 of Protocol (No 2), as
set out in paragraph 4 above; in particular there is no qualitative
and quantitative substantiation of the necessity for action at
22. This omission, the House of Commons submits,
is a failure on behalf of the Commission to comply with essential
procedural requirements in Article 5 of Protocol (No 2).
II) FAILURE TO COMPLY WITH THE PRINCIPLE OF SUBSIDIARITY
23. In the House of Commons' view, necessity is a
pre-requisite for action at EU level and for conformity with the
principle of subsidiarity.
24. This view is confirmed by the Commission:
"Subsidiarity cannot be easily validated by
operational criteria. The Protocol, as revised by the Lisbon Treaty,
no longer mentions conformity tests, such as 'necessity' and 'EU
value added'. Instead it has shifted the application more towards
the procedural aspects ensuring that all key actors can have their
say. The Commission has continued to use 'necessity' and 'EU value-added'
tests as part of its analytical framework and recommends the other
actors to do likewise."
25. Adequacy of national support: The Commission
argues that the ability of Member States to support those who
are at the margins of society has in many cases diminished, and
that social cohesion is threatened by fiscal constraints more
than ever before (see paragraph 11 above). Whilst the Commission
suggests that there is "uncertainty" about the ability
of some Member States to provide the social investment needed
to prevent a further fracturing of social cohesion (see paragraph
13 above), it does not assert that all Member States are in the
same position. Indeed, there is no qualitative or quantitative
substantiation of which Member States are unable to provide this
investment either now or over the funding period. The draft Regulation
would, however, bind all Member States.
26. Europe 2020 Strategy: A further justification
advanced by the Commission for action at EU level is that poverty
reduction and social inclusion are essential elements of the sustainable
growth agenda set out in the Europe 2020 Strategy and are reflected
in the headline target endorsed by the European Council. We note,
however, that the European Council, in endorsing the Europe 2020
headline target on social inclusion and poverty reduction, made
clear that Member States were free to set their own national targets
using the most appropriate indicators which take account of their
national circumstances and priorities.
It is far from clear that the European Council contemplated that
an EU funding instrument would be necessary or desirable in order
to meet the headline target. We do not accept, therefore, that
the Commission has provided a sufficient justification for EU
action on the basis of the Europe 2020 Strategy.
27. Public perception of the EU: We are struck
by two elements which appear to be at the heart of the Commission's
proposal for this new Fund. The first is the perception that
the EU shares responsibility for the austerity measures being
implemented in many EU Member States and has, as a result, forfeited
the confidence of ordinary citizens in its ability to ensure an
adequate level of social protection. The second is the Commission's
desire for a high visibility EU instrument, capable of providing
direct material assistance to those worst affected by rising levels
of poverty and social exclusion, to mitigate negative perceptions
of its contribution to the economic and financial crisis. The
fact that the Commission is anxious to be seen to act does not
mean that EU action is necessary or justified.
- EU VALUE-ADDED
28. It is axiomatic that poverty and social exclusion
in EU Member States is a concern which requires action; it far
less axiomatic that such action should be taken by the EU. For
EU action to be justified there must be evidence of a problem
that cannot be satisfactorily addressed by action at national
or regional level in all EU Member States. We think that evidence
29. Further, we are not convinced by the Commission's
justification of its right to act under Articles 174 and 175 TFEU.
Those Articles allow the EU take action leading to strengthening
its social cohesion, but we question whether this extends
to social cohesion in some (but not all) Member States. For this
to be so, we think there would have to be evidence of some "unacceptable
diversity" (see paragraph 14) in the provision of aid in
some Member States that undermines social cohesion in other Member
States, and therefore threatens social cohesion within the EU,
which the Commission has not demonstrated.
30. For these reasons the House of Commons considers
this proposal does not comply with the principle of subsidiarity.
21 COM(12) 617. Back
Article 1 of Protocol (No.2). Back
Article 2 of Protocol (No.2). Back
See, respectively, pp.2 and 3 of the 2010 and 2011 Reports on
Subsidiarity and Proportionality (COM(10) 547 and COM(11) 344). Back
Article 5. Back
See p.2 of the (Commission's) Explanatory Memorandum. Back
See p.14 of the impact assessment. Back
See p.26 of the impact assessment. Back
See p.4 of the Explanatory Memorandum. Back
See p.24 of the impact assessment. Back
See p.25 of the impact assessment. Back
Article 5. Back
See p.3 of the 2011 Report on Subsidiarity and Proportionality
(footnote 4). Back
See the footnote to the headline target on social inclusion in
the European Council Conclusions of 17 June 2010 at http://ec.europa.eu/eu2020/pdf/council_conclusion_17_june_en.pdf. Back