3 Subsidiarity and Proportionality
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; recommended for debate on the floor of the House with the report on the Commission's relations with national parliaments
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| Document details | 2013 Annual Report from the Commission on Subsidiarity and Proportionality
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| Legal base | —
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| Department | Foreign and Commonwealth Office
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| Document number | (36283), 12424/14, COM(14) 506
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Summary and Committee's conclusions
3.1 The Report provides an essentially factual overview of how
the principles of subsidiarity and proportionality have been applied
in 2013 and how the practice in applying this principle has evolved.
It summarises the activities of various EU bodies and national
parliaments and examines the application of the principle of subsidiarity
in respect of three controversial proposals. It has been produced
in the context of increasingly intensive discussion of the role
of national parliaments, both in scrutinising EU legislation for
compliance with the principles of subsidiarity and proportionality
and, more generally, in providing democratic legitimacy for the
EU.
3.2 This is reflected in the European Council Conclusions of June
26 and 27 2014, setting out the "Strategic Agenda for the
Union in Times of Change":
"In line with the principles of subsidiarity and proportionality,
the Union must concentrate its action on areas where it makes
a real difference. It should refrain from taking action when member
states can better achieve the same objectives. The credibility
of the Union depends on its ability to ensure adequate follow-up
on decisions and commitments. This requires strong and credible
institutions, but will also benefit from closer involvement of
national parliaments."
3.3 It is also reflected in a statement made by Mr Juncker, when
a candidate for the role of the President of the Commission:[8]
"The relationship with national parliaments is of great
importance to me, notably when it comes to enforcing the principle
of subsidiarity. I will explore ways to improve the interaction
with national Parliaments as a way of bringing the European Union
closer to citizens."
3.4 There have been a number of concrete suggestions, particularly
from national parliaments, to increase and make more effective
the role of national parliaments, as outlined later in this chapter,
including proposals in our own Report on Reforming he European
Scrutiny System of the House of Commons.
3.5 The Commission Report provides a useful digest of some
of the developments in an area which is crucial for the future
of the European Union as it reaches to the heart of its democratic
legitimacy. During the period covered by this Report and subsequently
there have been other significant developments and suggestions
for giving national parliaments closer involvement in EU legislation.
We recommend this Report for debate along with the Report on the
Commission's relations with national parliaments. The Committee
considers these subjects of such fundamental importance that it
is inconceivable that this debate should be scheduled other than
for the floor of the House. This is the only appropriate forum
for a debate on not only the specific contents of these Reports,
but also the wider context including the recommendation in our
scrutiny report for forms of unilateral disapplication of EU law.
3.6 We welcome the increased use of the reasoned opinion procedure
whilst recognising its limitations. We believe this reflects an
increasing appetite on the part of national parliaments to challenge
EU legislation.
3.7 There is considerable room for improvement in the Commission's
approach to assessing compliance with subsidiarity and in responding
to objections raised by national parliaments. Its unsatisfactory
response to the 13 formal reasoned opinions issued by national
parliaments objecting to the proposal for a draft Regulation on
the establishment of a European Public Prosecutor's Office is
an example of poor practice.
3.8 We also welcome the Government's commitment to provide
better quality Explanatory Memoranda. This is a problem we drew
attention to last year. A robust and detailed analysis of subsidiarity
at this early stage is essential to enable us to operate the reasoned
opinion procedure effectively.
3.9 In the light of our experience to date we consider that
the reasoned opinion set out in Protocol 2 to the Treaties must
be considerably strengthened if it is to become an effective tool
for engaging national parliaments in the development of EU legislation.
We welcome the various suggestions outlined in this chapter, and
consider that they can be drawn upon to create a coherent package
of improvements to the formal powers of national parliaments.
We consider it open to the Commission to voluntarily and informally
implement the suggestions which can be done without treaty change,
and urge it to do so quickly. We also urge the Commission to establish
the working group proposed by a large majority of national parliaments,
and through it develop an action plan on ways to strengthen their
role in the EU.
Full details of
the documents: Report
from the Commission — Annual Report 2013 on Subsidiarity
and Proportionality (36283), 12424/14, COM(14) 506.
The Commission's Report
3.10 The Commission indicates in its Report that
it justifies subsidiarity and proportionality in the initial "Roadmaps"
it publishes for all major new initiatives. These outline the
Commission's plans and include an initial justification with regard
to subsidiarity and proportionality. It then develops the justification
through the process of producing Impact Assessments, and reviews
the results through retrospective evaluation. The Report provides
two examples to illustrate the role of its Impact Assessment Board
in ensuring that the assessments of subsidiarity and proportionality
are robust.
3.11 The European Parliament is recorded as having
issued five reports on specific proposals and five on the cost
of non-Europe in specific areas. Its own Impact Assessment Unit
produced 50 initial appraisals and three detailed appraisals of
Commission Impact Assessments.
3.12 The Report records that there were no cases
in the Court of Justice concerning subsidiarity, but two in the
General Court in which subsidiarity objections brought by individuals
were unsuccessful.[9]
3.13 National Parliaments are recorded as having
issued 88 reasoned opinions (70 in 2012) covering 36 proposals;
of which five came from the House of Commons. The most prolific
chamber was the Swedish Riksdag which issued nine reasoned
opinions. The threshold for a "yellow card" requiring
the Commission to review and formally justify its proposal, was
reached in respect of the proposal on the establishment of a European
Public Prosecutor's Office (EPPO).[10]
Fourteen reasoned opinions were issued on this proposal and seven
other opinions were submitted under political dialogue which did
not challenge subsidiarity. In the event the Commission decided
to maintain its proposal.
3.14 The Report examines in greater depth the four
proposals attracting the greatest number of subsidiarity reasoned
opinions — the draft EPPO Regulation; the draft Directive
establishing a framework for maritime spatial planning and integrated
coastal management; the draft Directive concerning the manufacture,
presentation and sale of tobacco and related products; and the
draft Regulation establishing a framework on market access to
port services and financial transparency of ports.
3.15 The Commission concludes that "All institutions
involved in the legislative process were active in ensuring control
of the principle of subsidiarity" and that there is an increasing
trend for national parliaments to submit reasoned opinions. However,
"national parliaments have varying political interests and
different priorities in choosing Commission proposals to be scrutinised
in the context of the subsidiarity control mechanism. They also
seem to apply different criteria when assessing a proposal's compliance
with the principle of subsidiarity."
The Explanatory Memorandum of 28 August 2014
3.16 In his Explanatory Memorandum the Minister for
Europe (Mr David Lidington) underlines:
· the
fundamental importance of subsidiarity and proportionality in
EU law making;
· the
role of national parliaments and national governments as the source
of democratic legitimacy in the EU;
· Government
support for national parliaments to strengthen their role;
· the
Government's disappointment at the response of the Commission
to the EPPO proposal and in particular the Commission's narrow
view of subsidiarity; and
· the
Government's commitment to help Parliament use its powers, in
particular by addressing the criticism levelled at the poor quality
of some of its Explanatory Memoranda and supporting the working
group which national parliaments have proposed[11]
be established by Commission President Juncker to develop concrete
ways to strengthen national parliaments' role.
Additional background
3.17 In the context of a widespread recognition of
the EU's "democratic deficit" a number of concrete proposals
to strengthen the role of national parliament's have emerged.
All of these listed below may be found variously in:
· The
Report of the Dutch Tweede Kamer der Staten-General of November
2013 on Democratic legitimacy in the EU and the role of national
parliaments,[12]
· The
Report of the European Affairs Committee of the Danish Parliament
of January 2014, Twenty-Three Recommendations — to strengthen
the role of national parliaments in a changing European governance.[13]
· The
Report of the House of Lords EU Select Committee of 24 March 2014
on The Role of National Parliaments in the European Union[14]
to which both the Government and the Commission have responded.[15]
Our Report of 8 November 2013, Reforming the European
Scrutiny System of the House of Commons,[16]
contained more radical proposals relating to the role of the House
of Commons; the Government responded in July 2014 and we are currently
considering how to take our recommendations forward.
Improvement to the existing reasoned opinion procedure
3.18 First, there are suggestions to extend the scope
of the reasoned opinion procedure to include proportionality and
legal basis. The former would have a very significant impact.
It would broaden the scope for national parliaments to object
to a proposal for wider policy reasons; and in doing so will remove
many of the difficulties of interpreting the concept of subsidiarity
which have dogged the reasoned opinion procedure, including whether
an objection that legislation is simply not necessary is a question
of subsidiarity. The Dutch Tweede Kamer has noted the difficulty
in distinguishing between subsidiarity and proportionality. Extending
the scope of the reasoned opinion procedure in this way would
limit the opportunity for the Commission to rebuff objections
to a proposal by taking an overly narrow view of subsidiarity,
as it did in its response to the objections to the EPPO proposal.[17]
In its response to our Scrutiny Report the Government supported
the extending the reasoned opinion procedure to include proportionality
concerns.
3.19 Second, are suggestions to extend the deadline
for lodging a reasoned opinion. The current period is eight weeks
from the date of transmission of the draft legislative act. In
practice the Commission does not count August in its calculation
of the deadline. This Committee has resorted to raising subsidiarity
objections by way of political dialogue on five occasions[18]
because it proved impossible to meet the deadline for submitting
a reasoned opinion. In its response to our Scrutiny Report the
Government supported extending the time limit for submitting a
reasoned opinion, and agreed with the European Select Committee's
suggested alternative periods of 12 or 16 weeks in its response
to the Report of the European Select Committee.
3.20 Third, is the suggestion to lower the thresholds.
At present, Protocol 2 lays down that each chamber of a bicameral
parliament gets one vote and unicameral parliaments have 2 votes,
making a total of 56. Ordinarily, for a "yellow card"
requiring the Commission to review its proposal and justify any
decision to maintain, amend or withdraw it, reasoned opinions
representing at least one third (19) of all the votes allocated
must be lodged; one quarter (14) for any proposal made under Article
76 TFEU as in the case of the EPPO. A simple majority of votes
(29) is required for an "orange card", following which
the Commission must review its proposal and justify maintaining
it with a reasoned opinion; in which case either the Council (by
a majority of 55% of its members) or the European Parliament (by
a majority of votes cast) can block the proposal for non-compliance
with the principle of subsidiarity. Only two proposals have ever
achieved a yellow card. None have achieved an orange card.
A "red card"
3.21 A "red card" would be a mechanism
enabling national parliaments to block a proposal for legislation
submitted by the Commission.[19]
The details of how such a card would operate have yet to be worked
through i.e. whether it would be triggered by reasoned opinions
and, if so, the grounds for issuing one and the threshold.
3.22 In its response to our Scrutiny Report the Government
indicated that it had advocated bringing in a red card. In its
response to the House of Lords EU Select Committee Report it went
further and indicated that "We should explore whether such
cards might be exercised in relation to existing legislation".
In an earlier response to an oral question, the Minister had suggested
that such a "retrospective red card" would be a smart
way to resolve the problem of EU legislation that burdens industry
and that Governments wish to revisit.[20]
This links to the recommendation in our Scrutiny Report that provision
should be made to enable a decision of the House of Commons to
disapply parts of the existing acquis, the only difference
being that the power would be exercised collectively.
3.23 The Danish Parliament has raised the prospect,
without making it a specific recommendation, that national parliaments
could be empowered to initiate a revocation of Commission subordinate
legislation. [21]
A "late card"
3.24 A "late card" would be a mechanism
enabling national parliaments to scrutinise a proposal for legislation
at the end of the legislative procedure when the Commission proposal
is likely to have been changed, perhaps considerably, as the result
of negotiations. In its response to the Report of the House of
Lords EU Select Committee the Government records that it has welcomed
this proposal from the Dutch Tweede Kamer.
A green card
3.25 A green card would enable national parliaments
to propose new European legislation (as can a group of Member
States in some circumstances), including proposals to amend or
recall existing legislation. Such proposals would then have to
undergo the appropriate legislative procedure prescribed by the
Treaties. In its response to our Scrutiny Report the Government
invited the Committee to consider this suggestion.
3.26 The Danish Parliament has also suggested a variant,
whereby one-third of national parliaments are able to agree a
position on a legislative proposal within a 10 week deadline which
the Commission should take into account, but if no position is
reached it can proceed without this constraint.
Actions not requiring Treaty change
3.27 The Commission could voluntarily and informally
give effect to these procedures, or their near equivalents, provided
that there was sufficient political will on its part. It could
be helped, if necessary or convenient, by inter-institutional
agreements. However in its response to the House of Lords EU Select
Committee Report the Commission took the narrow position that
it was not possible to deviate from Protocol 2, despite it having
already done so to accommodate August within the 8 week subsidiarity
deadline.
3.28 Additionally national parliamentary effectiveness
in scrutinising subsidiarity would be assisted by:
· deeper
engagement by the Commission with national parliaments. To date
it has not consistently responded in detail to all our reasoned
opinions, (although we detect some very recent improvement in
this aspect of its performance) and, its rebuff of the EPPO yellow
card is indicative of resistance to national parliamentary scrutiny;
· improving
the co-ordination between national parliaments, which has come
a long way since the introduction of the reasoned opinion procedure
by the Lisbon Treaty, through the auspices of the informal network
of national parliamentary liaison officers and operation of IPEX
a platform for EU interparliamentary exchange .
Previous Committee Reports
None, but see, in respect of the 2012 Report (35242);
Twenty-Ninth Report HC 83-xxvi (2013-14), chapter 2, (8 January
2014); Twenty-Ninth Report HC 83-xxv (2013-14), chapter 2, (18
December 2013); Twenty-Second Report HC 83-xx (2013-14), chapter
5, (6 November 2013)
8 "A New Start for Europe: My Agenda for Jobs,
Growth, Fairness and Democratic Change" 15 July 2014.
http://ec.europa.eu/about/juncker-commission/docs/pg_en.pdf Back
9
Cases T-31/07 and T-526/10. Back
10
For further explanation of the "yellow card" and the
threshold for achieving it see para [18]. Back
11
Letter of 30 June 2014, from 29 chairmen of EU Committees of national
parliaments to (then) President-elect Juncker. Back
12
http://www.tweedekamer.nl/images/Brochure_Democratic_Legitimacy_in_the_EU_181-237266.pdf Back
13
http://renginiai.lrs.lt/renginiai/EventDocument/6fa11f98-fc15-4443-8f3f-9a9b26d34c97/Folketing_Twenty-three%20recommendations_EN.pdf Back
14
Ninth Report of Session 2013-14, HL Paper 151. Back
15
[References if in public domain]. Back
16
Twenty-fourth Report of Session 2013-15, HC 109-I (28 November
2013) Back
17
See our Thirty-first Report HC 83-xxviii, chapter 8 (22 January
2014). Back
18
In response to proposals concerning seasonal workers (COM(10)
379), deposit guarantee scheme (COM(10) 368), taxation of energy
products and electricity (COM(11) 169), roadworthiness (COM(12)
380, and retirement pensions (COM(14 167). Back
19
This term is also used to describe the current power of a national
parliament to bring proceedings before the Court of Justice under
article 8 of Protocol 2. Back
20
HC Deb,3 September 2013, col. 158. Back
21
I.e. Delegated or implementing legislation adopted in accordance
with Articles 290 and 291 TFEU. Back
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