Twelfth Report of Session 2013-14 - European Scrutiny Committee Contents

19   Report on the application of subsidiarity and proportionality



COM(12) 373

Commission report on subsidiarity and proportionality (19th report on Better Lawmaking covering the year 2011)

Legal base
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letters of 28 January and 11 July 2013
Previous Committee ReportsHC 86-xxi (2012-13), chapter 7 (28 November 2012); HC 86-xii (2012-13), chapter 4 (12 September 2012)
Discussion in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionCleared


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.


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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