19 Report on the application of subsidiarity
and proportionality
| (34095)
12495/12
COM(12) 373
| Commission report on subsidiarity and proportionality (19th report on Better Lawmaking covering the year 2011)
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| Legal base | —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letters of 28 January and 11 July 2013
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| Previous Committee Reports | HC 86-xxi (2012-13), chapter 7 (28 November 2012); HC 86-xii (2012-13), chapter 4 (12 September 2012)
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| Discussion in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Cleared
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Background
19.1 The annual report from the Commission examines the implementation
of the principles of subsidiarity and proportionality by the Commission,
the European Parliament, the Council, the Committee of the Regions
and the Court of Justice. The report also explores how the role
of national parliaments has developed in scrutinising the principles
of subsidiarity since the entry into force of the Lisbon Treaty.
The obligation on the Commission to prepare these annual reports
is found in Article 9 of Protocol No. 2 on subsidiarity and proportionality,
the subsidiarity Protocol.
19.2 We reported on the Commission's report on
12 September and 28 November.[65]
On the last occasion, we asked the Government a series of more
general questions about how it approaches its assessment of a
Commission proposal's compliance with subsidiarity.
The Minister's letters of 28 January and 11 July
2013
19.3 The Minister for Europe (Mr David Lidington)
replied on 28 January, saying that the Government was grateful
for the Committee's close attention to the principle of subsidiarity,
and its continued work to uphold it. He continues that subsidiarity
as set out in the Treaties is a relatively abstract concept, which
may be better understood and applied through debate and dialogue
between national governments, national parliaments, Member States
and the EU institutions. Therefore the present exchange of letters
with the Committee on this subject is welcome, the Minister states,
not least as it enables the Government to ensure the guidance
for officials is as accurate as possible.
19.4 The Minister notes that, in its report of
28 November, the Committee raised three further issues. First,
in paragraph 7.8 we disagreed that the Commission should include
a comprehensive and detailed analysis of subsidiarity in an impact
assessment that accompanies a proposal. We took the view that
Article 5 of Protocol 2 to the TEU and TFEU, which states that,
"any draft legislative act should contain a detailed statement
making it possible to appraise compliance with the principles
of subsidiarity and proportionality", is an indication that
such an assessment should be contained in the Commission's explanatory
memorandum rather than an impact assessment.
19.5 According to the Minister, Article 5 is
not, unfortunately, specific as to the form and the document in
which the assessment should be included, providing only that it
should be provided in the relevant draft legislative act, which
most commonly takes the form of a Commission proposal. Therefore,
the Minister continues, there is nothing to preclude the Commission
from presenting the analysis and statement in a proposal's impact
assessment. Moreover, where the assessment of subsidiarity and
proportionality includes detailed analysis, based on extensive
evidence, it would be more appropriate for it to be contained
in the impact assessment. However, the Government agrees that
the Commission's explanatory memorandum should at least contain
the essential elements of the subsidiarity assessment which, where
helpful, makes references to the full impact assessment, in order
to help national parliaments complete their own assessment of
subsidiarity within the eight-week deadline. The Government's
subsidiarity guidance will be updated to ensure that UK officials
are aware of this when engaging with the Commission.
19.6 Second, at paragraph 7.12, the Minister
notes, the Committee's Report asks the Government to ensure that
all of its own Explanatory Memoranda contain robust assessments
of subsidiarity. The Government agrees on the importance of ensuring
all officials working on EU issues are aware of this. The Government's
commitments and other undertakings to Parliament are reinforced
at meetings of the Whitehall scrutiny coordinators' network —which
meets regularly to discuss scrutiny issues (including those raised
by Scrutiny Committees) and to share best practice. In order
to enhance further understanding of scrutiny within Whitehall
and embed best practice, all Departments have been encouraged
to hold scrutiny awareness raising events, for which the Government
is grateful for the support of parliamentarians and Scrutiny Committee
officials. The Government's subsidiarity guidance has been developed
as part of these efforts.
19.7 Third, the Committee's Report further notes
the advice in paragraph 7.10 of the subsidiarity guidance, which
advises Government officials to focus on "demonstrating whether
the proposed instrument is necessary" in their approach to
the Commission. The Committee's Report suggests that this should
be distinguished from the Commission's "necessity test",
defined by the Commission as "why the objectives of the proposed
action cannot be achieved sufficiently by Member States".
However, the Minister states, it should be clarified that this
particular advice is intended to help officials challenge the
Commission to follow its own necessity test, as defined in the
Commission guidelines described in paragraph 9 of the guidance.
Nevertheless, the Government is grateful to the Committee for
highlighting this reference, and the first bullet of paragraph
10 will be updated to clarify that it refers to "demonstrating
whether action at the EU level is necessary". The Government's
Explanatory Memorandum for the Monti II proposal was prepared
before the guidance was finalised, but the approach taken in the
guidance was consistent with the overall approach described in
paragraph 1 of the guidance.
19.8 As regards whether a measure is necessary
per se, the Government considers this a fundamental criterion
for assessing any action by the State or a public authority.
However, in line with Article 5(3) TEU, the Government sees subsidiarity
as being about determining the appropriateness of the actor rather
than the appropriateness of the action. The EU Treaties set out
what the Commission needs to do to demonstrate that the European
Union, and not the Member States, is the most appropriate actor
in areas where competence is not conferred on it exclusively.
Again, the guidance will be updated to make this clearer.
19.9 In the Government's view, assessing whether
the action is necessary per se is best done as part of
Parliament's mainstream EU scrutiny process rather than as part
of the subsidiarity consideration. Nonetheless, the Government
values Parliament's views on all aspects of EU initiatives, to
provide strong parliamentary accountability in the way that Government
operates.
19.10 The Minister's letter of 11 July, in response
to a further letter from the Committee, confirms which paragraphs
of the Government's guidance on subsidiarity have been updated
as a result of his letter of 28 January.
Conclusion
19.11 We thank the Minister for his helpful
letter. We agree with him that the application of the principle
of subsidiarity to EU legislation is far from straightforward,
particularly because it is relatively untested, and that these
exchanges are therefore useful.
19.12 Turning to each of his points, we question
whether the stipulation in Article 5 of the subsidiarity Protocol
that "[a]ny draft legislative act should contain a detailed
statement..." is unspecific as to the form and the document
in which it should be concluded. The correct interpretation of
the Treaty language turns on the definition to be applied to "draft
legislative act", we suggest. Whilst we can see the argument
that detailed subsidiarity assessments may be more appropriately
placed in an impact assessment, we think that because an impact
assessment accompanies (and precedes) the adoption by the Commission
of a draft legislative act, it cannot be said to be contained
within it. (The German and French language versions of Article
5 reinforce our view that the detailed statement has to be included
within the draft legislative act itself.) We have asked the Commission
to write to us to explain which documents it considers to be contained
within a draft legislative act.
19.13 We think the location and content of
the detailed statement matters for two reasons. First, because
it is only the explanatory memoranda and draft proposals —
we suggest the two components of a draft legislative act —
that are translated into all official EU languages and so can
be understood by all national parliaments. (We note the Minister
did not respond on this point.) We do not think it can be right
that the detailed statement on subsidiarity can be contained in
an impact assessment which is published only in French and English,
thereby preventing the Reasoned Opinion procedure from being operated
equally by all national parliaments of the EU. Secondly, we think
the expression "a detailed statement" means one self-standing
statement containing the subsidiarity assessment required by Article
5 in all official EU languages. This, rather than tracing arguments
through different sections of impact assessments that often run
to more than a hundred pages, will enable a national parliament
more effectively to monitor compliance with subsidiarity in the
short timeframe of eight weeks within which a Reasoned Opinion
has to be issued. Currently, the subsidiarity section within
the Commission's explanatory memorandum falls far short of the
requirements in Article 5. We recognise, however, that whether
the requirement for a draft legislative act to contain a detailed
statement is an essential procedural requirement with which the
Commission is failing to comply is ultimately a decision for the
Court of Justice.
19.14 Whilst we are grateful to the Minister
for updating the FCO subsidiarity guidance in the light of the
comments in our last Report, given our views above we do not agree
with the statement at paragraph 8 that "the Impact Assessment
Report that accompanies a proposal should include a detailed statement
..."; nor the statement in paragraph 9 that "as requested
by Parliament, officials should press the Commission to ensure
that at least a summary assessment of subsidiarity is included
in the Commission's own explanatory memorandum".
19.15 We note the Minister's comments on the
quality of subsidiarity assessments in Government Explanatory
Memoranda; we have corresponded with him separately on this issue,
raising our concerns about the poor quality of subsidiarity assessments
in certain recent Explanatory Memoranda.
19.16 We are grateful for the Minister's helpful
analysis of the "necessity test" and note the difference
of opinion between us and the Government on this. The Government
argues that whether a proposal is necessary per se is not
a part of consideration of the subsidiarity principle as defined
in Article 5(3) TEU — "we see subsidiarity about determining
the appropriateness of the actor rather than the appropriateness
of the action". We, on the other hand, think this unnecessarily
restricts the Government's assessment of subsidiarity, arguing
that the requirement that there is evidence that a proposal is
necessary at EU level per se is an implied component of
compliance with subsidiarity.
19.17 We have no further questions to ask
and now clear the Commission's report from scrutiny.
65 See headnote. Back
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