4 Subsidiarity and Proportionality and
the Commission's relations with national parliaments
| Committee's assessment |
Legally and politically important |
| Committee's decision | Not cleared from scrutiny; recommended for debate on the floor of the House
|
| Document details | (a) Commission Annual Report 2014 on subsidiarity and proportionality;
(b) Commission Annual Report 2014 on relations with national Parliaments
|
| Legal base | — |
| Department | Foreign and Commonwealth Office
|
| Document Numbers | (a) (36967), 10651/15 + ADD 1, COM(15) 315
(b) (36968), 10663/15 + ADD 1, COM(15) 316
|
Summary and Committee's conclusions
4.1 These reports provide an essentially factual overview of (a)
how the principles of subsidiarity and proportionality have been
applied by the EU institutions in 2014 and (b) the Commission's
relations with national parliaments, and in particular how it
has handled opinions it has received from them. Document (a) focusses
on the formal subsidiarity reasoned opinion procedure which national
parliaments can use to raise objections to proposed legislation
on the ground that it does not comply with the principle of subsidiarity,
whereas document (b), whilst it also covers the formal reasoned
opinion procedure, focusses more on the informal opinions submitted
by national parliaments by way of "political dialogue".
These informal opinions can include objections on subsidiarity
grounds. For example, our predecessor Committee has pursued subsidiarity
objections by way of political dialogue in respect of the proposal
for a Directive on the activities and supervision of institutions
for occupational retirement provision (recast), because the Parliamentary
timetable precluded the recommendation of a formal reasoned opinion.[ 7]
4.2 2014 was a year in which there were elections to the European
Parliament and a change of Commission, with the consequence that
there were fewer legislative proposals. This is reflected in a
decline in the number of reasoned opinions and a decline in the
volume of political dialogue. However during this period various
ideas for strengthening the role of national parliaments were
developed[ 8] which were
summarised in our first Report on the 2013 Annual Report on
subsidiarity and proportionality.
4.3 The Commission reports recognise the wider context of the
continuing debate on strengthening the role of national parliaments
in the EU legislative process in order to improve democratic legitimacy.
This debate is now reflected in the UK renegotiation.
4.4 The reports also recognise the parallel effort to improve
EU legislation found in the Commission's Better Regulation
package published in May this year.[ 9]
4.5 Although it is not included in these reports, some national
parliaments and chambers have recently taken unilateral action
to strengthen the role of national parliaments through a pilot
"green card" exercise, as outlined in more detail below.
4.6 We welcome the useful digest of the activities of national
parliaments in shaping EU legislation contained in these reports.
They must be seen against the broader context of continuing dissatisfaction
with the democratic legitimacy of EU legislation, which forms
part both of the UK renegotiation and debates on the need for
more intensive "Europeanization" amongst the Eurozone
Member States.
4.7 Given the importance of the subject and its context we
recommend these reports for debate on the floor of the House.
4.8 In doing so we note that Commission President Juncker has
not set up the working group to look at the role of national parliaments
in the EU requested by 29 signatories of national parliaments
or chambers. Like the Government we are disappointed that this
has not been done and renew our call for him to do so. We are
therefore sending a copy of this report to him.
4.9 We also:
· reiterate
our support for the new Commission initiatives for early consultation
of national parliaments outlined in its Better Regulation
package which we consider should be strengthened by transmitting
indicative impact assessments to national parliaments on; and
· welcome
the Commission's efforts to improve its dialogue with national
parliaments and in particular, its responses to reasoned opinions
issued by national parliaments.
Full details of
the documents: a)
Commission Report — Annual Report 2014 on Subsidiarity
and Proportionality: (36283), 10651/15 + ADD 1, COM(15) 315
(b) Commission Report — Annual Report 2014 on relations
with national Parliaments: (36968), 10663/15 + ADD 1, COM(15)
316.
The Commission's Report on Subsidiarity and Proportionality
4.10 The Commission starts its report by indicating
that in 2014 it continued to apply internal procedures to ensure
compliance with subsidiarity and proportionality including by
undertaking 25 impact assessments. It illustrates the process
by using the example of the proposal for legislation on undeclared
work, on which the Commission's Impact Assessment Board required
further evidence to support the legislation. Although not mentioned
in this part of the report, the House of Commons issued a reasoned
opinion on this proposal.[ 10]
The Commission's Impact Assessment Boards have been replaced,
as part of the Better Regulation package by Regulatory
Scrutiny Boards with more independent membership and strengthened
powers.
4.11 The report continues by providing information
on the reasoned opinion procedure. During 2014 15 chambers or
parliaments issued 21 reasoned opinions covering 15 proposals.
The highest number reached on any one proposal was three. All
reasoned opinions are listed at Annex I to the report.
4.12 The Commission provides information on the activities
of other EU institutions, the most notable point being that the
Court of Justice delivered no significant judgments concerning
subsidiarity or proportionality during 2014.
4.13 Finally the report examines three "key
cases". None of the three reasoned opinions issued by the
House of Commons concerned these proposals, which were:
· The
proposal for a Directive on the Union legal framework for customs
infringements and sanctions.[ 11]
Three reasoned opinions were issued and three chambers issued
opinions in the framework of political dialogue. The Commission
has maintained this proposal which is still under consideration.
· The
proposal for a Directive amending Directives on waste, packaging
and packaging waste, landfill of waste, end-of-life vehicles,
batteries and accumulators and waste batteries and accumulators,
and on waste electrical and electronic equipment (Directive on
recycling and other waste-related targets).[ 12]
Three reasoned opinions were issued and ten chambers issued opinions
in the framework of political dialogue. In its 2015 Work Programme:
A New Start the Commission announced that it would withdraw
this proposal in favour of a new more ambitious proposal.[ 13]
· The
proposal for a Regulation on organic production and labelling
organic products.[ 14]
Two reasoned opinions were issued against this proposal and nine
chambers issued opinions in the framework of political dialogue.
In its 2015 Work programme the Commission indicated that
it would withdraw the proposal and replace it if agreement was
not found within six months.
The Government's View
4.14 In his Explanatory Memorandum of 22 July 2015
the Minister for Europe (Mr David Lidington) summarises the Report
and sets out the following policy implications:
"The Government agrees with Commission President
Juncker that respect for the principles of subsidiarity and proportionality
should be at the heart of the work of the new Commission. The
tone and content of the annual report gives some reason for cautious
optimism on the way in which the new Commission is approaching
this essential task. In contrast to preceding annual reports,
this one makes explicit the link between respect for subsidiarity
and proportionality and the Better Regulation agenda and contains
more information on how the Commission and the European Parliament
reflect on national parliaments' views. This is a welcome step
in the right direction.
"In the Government's Explanatory Memorandum
for this report in 2013, we welcomed the reference in the June
2014 European Council Conclusions to the principles of subsidiarity
and proportionality, and agreement that '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'. Given those European Council conclusions
were within the timeframe for this annual report, the Government
would have welcomed a reference within this report to the direction
which the European Council has set for the whole EU.
"The Government's position is that national
parliaments and national governments are the real source of democratic
legitimacy in the EU. People in Europe identify with their national
parliaments more than with EU institutions. People understand
how to make their voice heard through national parliaments. And
those parliaments are closer to, and understand better, the concerns
of citizens. The Government welcomes the text in the draft proposal
for an Inter-Institutional Agreement on Better Regulation, (published
on 19 May 2015) that states that: 'The three institutions reiterate
the role and responsibility of national parliaments as laid down
in the Treaties in the Protocol on the role of national Parliaments
in the European Union and Protocol 2 on the application of the
principles of subsidiarity and proportionality of the Treaty on
the Functioning of the European Union'.
"The Government fully supports national
parliaments in their endeavours to strengthen their role. The
Government was disappointed that the Commission has not yet formally
responded to the request from national parliaments to establish
a working group to consider ways to strengthen national parliaments'
role. However, the Government welcomes national parliaments' continued
commitment to these issues and the recent decision of the Chair
of COSAC to establish a working group within COSAC to consider
both the 'green card' proposal and ways to strengthen the existing
'yellow card'. The Government also welcomes First Vice-President
Timmermans' commitment, at the July meeting of COSAC Chairs, to
take seriously any 'green card' proposal received from a group
of national parliaments.
"These are some of the ways in which the
new Commission is demonstrating its interest in establishing better
relations with national parliaments. The three reasoned opinion
case studies detailed in the annual report also reflect some changes
to the ways the Commission is working; with a withdrawal of one
proposal and a commitment to withdraw another if agreement could
not be found with the co-legislators within six months. The Commission
has indicated its intention to reintroduce a similar proposal
to the withdrawn proposal on the waste directive, and the Government
will be keen to see if that new proposal appropriately addresses
national parliaments' subsidiarity concerns.
"Although there was a reduction in the number
of reasoned opinions in 2014, this should be seen in the context
of fewer legislative proposals given the changeover of the Commission
and the European Parliamentary elections. As reasoned opinions
have to be issued within eight weeks of the publication of a legislative
proposal, they are dependent on new legislation being published.
Opinions by national parliaments can be issued at any stage during
the legislative process, and therefore, as we see in the report,
were less affected by the lower levels of new legislation.
"The Government is committed to helping
Parliament make full use of its power to directly influence EU
initiatives; and continues to embed an understanding of these
issues - and of Parliament's crucial role - across Whitehall departments
dealing with EU business. UK officials regularly liaise with Committee
clerks in Westminster and Brussels."
The Commission's Report on its relations with
national parliaments
4.15 This report starts by noting that in 2014 the
new Commission announced its intention of forging a new partnership
with national parliaments including by more frequent visits by
Commissioners. It notes a 19% drop in the number of opinions issued,
to 506, which it attributes to the drop in the number of legislative
initiatives. These are analysed by chamber, by subject matter
and by lead Commission service in Annexes 1 to 3 to the report.
It states that 80% of opinions came from just ten chambers. Most
opinions concerned legislative proposals, 13 of which alone generated
six or more opinions. 12 opinions emanated from our predecessor
Committee.
4.16 The Commission indicated that it "is encouraging
national Parliaments to engage in the pre-legislative phase, either
by responding to public consultations or by commenting on policy
documents, such as green papers. However, so far, very few chambers
have made their views known before the adoption of a legislative
proposal".
4.17 Three key topics of the political dialogue are
identified:
· The
proposal for a Directive amending Directives on waste, packaging
and packaging waste, landfill of waste, end-of-life vehicles,
batteries and accumulators and waste batteries and accumulators,
and on waste electrical and electronic equipment (Directive on
recycling and other waste-related targets);
· The
proposal for a Regulation on organic production and labelling
organic products.
Both these proposals are referred to above.
· The
proposal for a Regulation on the establishment of the European
Public Prosecutors Office (EPPO). This proposal had been subject
to a reasoned opinion yellow card in 2013, but the Commission
continued to maintain it. In 2014, 10 Parliaments or chambers
sent follow up opinions, mostly expressing dissatisfaction with
the Commissions' decision on the yellow card, particularly the
narrow definition of subsidiarity used by the Commission. Our
predecessor Committee shared these concerns and expressed them
as part of the political dialogue.[ 15]
4.18 The report next provides a commentary on how
two legislative proposals (of the three attracting most attention
from national parliaments in 2013) adopted in 2014 might have
been influenced by political dialogue. These are the Tobacco Products
Directive[ 16] and the
Directive on maritime spatial planning.[ 17]
4.19 Finally the report has sections reporting on
the meetings of COSAC[ 18]
and other conferences, the wider context of proposals on the future
role of national parliaments and the new Commission's emphasis
on national parliaments, and bilateral visits and contacts by
Commissioners and Commission officials.
The Government's view
4.20 In his Explanatory Memorandum on this report,
also of 22 July, the Minister summarises the report, reiterates
the Government's view that national parliaments and national governments
are the real source of democratic legitimacy in the EU, and expresses
the following views:
"The Government is encouraged by the number
of opinions raised in 2014, even though the number fell from 2013.
The Government notes the decline in activity is due to the changeover
to a new Commission. The process of raising opinions is one way
to ensure EU legislation is being scrutinised at national parliament
level and the views of the national parliaments are being fed
through to the Commission. The House of Lords and House of Commons
between them issued 33 opinions. The Government acknowledges the
work undertaken by the Committees and it remains committed to
helping Parliament make full use of its power to directly influence
EU initiatives; and continues to embed an understanding of these
issues - and of Parliament's crucial role - across Whitehall departments
dealing with EU business. UK officials regularly liaise with Committee
clerks in Westminster and Brussels.
"The Government supports the Commission's
interest in greater engagement from national parliaments at an
early stage of the legislative process. This would give national
parliaments greater influence in shaping decision making and contribute
to the policy development process.
"It is encouraging to see national parliaments
across Europe engaged in this important debate. We welcome the
proposals put forward by the Danish, Dutch, French and Polish
parliaments and will continue to discuss this important issue
with EU partners.
"While the Government is disappointed that
the Commission has not yet formally responded to the request from
national parliaments to establish a working group to consider
ways to strength national parliaments' role, we do welcome the
commitment made by COSAC in June to take forward work on the green
card proposal to support greater engagement between the national
parliaments and the Commission, as well as considering ways to
strengthen the existing yellow card. First Vice-President Frans
Timmermans has already expressed support for making the yellow
card system work more effectively and at the COSAC meeting in
July committed to take seriously any green card proposal received
by a group of national parliaments, and to improve the dialogue
throughout the legislative process."
The UK renegotiation
4.21 When giving evidence to the House of Lords Select
Committee inquiry on Renegotiation and Referendum on UK Membership
of the EU the Minister for Europe was asked about the future
role of national parliaments. He responded:
"First, giving greater weight to national
parliaments in the system of checks and balances within the EU
is one essential element in reconnecting Europe with ordinary
citizens who, to judge by Eurobarometer or pure research findings,
have grown pretty disaffected with EU institutions. That is by
no means unique to the United Kingdom. If one looks at the opinion
poll findings in France or Spain in particular, one will find
some real disillusion in those countries. If you talk to parliamentarians
in Scandinavian countries and the Netherlands, you find that there
is a very keen appetite for reform of this type. The Dutch and
Danish parliaments have both produced papers advocating changes
that are very similar to the ones that we are putting forward.
"It is true that there have been only two
yellow cards. Part of the problem is the very short window of
time that is available to national parliaments to submit a reasoned
opinion, and the fact that if one looks strictly at the current
grounds on which a yellow card can be tabled, it relates to subsidiarity
only and not to proportionality or other factors. At the European
level those things need to be addressed. I also think there is
a challenge to parliaments themselves in how to organise their
own affairs and procedures so that they are in a position to respond
rapidly to a decision to submit a reasoned opinion, but also to
network with other parliaments. Just as Governments around Europe
have had to get used to the idea of picking up the phone or texting
Ministers regularly and trying to construct agreements, comprises
and common positions, so will parliaments, if the system is to
work well, need to develop that sort of networking approach too.
I think the red card would add something to our armoury. National
parliaments being able to say in sufficient numbers, 'Look, this
point clearly does not command democratic consent across Europe
as a whole, so call a halt', would, it seems to me, be a constitutional
check that a sensible Europe would find a place for."[ 19]
The pilot "green card"
4.22 The green card, as envisaged by the Dutch Tweede
Kamer would enable national parliaments, in a form of joint
action, to propose new European policies to the European Commission.
This would include the possibility of a proposal to amend or revoke
existing legislation.
4.23 Following discussions in COSAC and on the basis
of an initiative by the House of Lords EU Committee,[ 20]
a pilot green card has been developed, asking the Commission to
adopt a strategic approach to food-waste reduction, including
the following five elements, in addition to the approach to food
waste set out in the proposal in a new "Circular Economy"
package :
· EU
Food Donation guidelines;
· An
EU co-ordination mechanism;
· The
commission to monitor the business to business cross-border food
supply chain;
· A
Commission Recommendation on the definition of food waste and
on data collection; and
· The
establishment of a horizontal working group within the Commission
to assess the consideration of food waste within policy making
across the Commission.
4.24 A letter issuing this pilot green card, signed
by 16 chairpersons of EU Committees of national parliaments or
chambers (including by Lord Boswell, Chairman of the House of
Lords EU Select Committee), was sent to Commission President Juncker
on 22 July 2015.
Previous Committee Reports
None, but see, in respect of the 2013 reports on
subsidiarity and proportionality and relations with
national parliaments Thirteenth Report HC 219-xiii (2014-15),
chapter 2 and chapter 3, (15 October 2014), Thirtieth Report HC
219-xix (2014-15) chapter 1, (21 January 2015).
7 See Thirty-seventh Report HC 219-xxxvi (2014-15)
chapter 1 (18 March 2015), Fiftieth Report HC 83-xlv (2013-14),
chapter 6 (14 May 2014), First Report HC 219-i (2014-15), chapter 13
(4 June 2014), Sixth Report HC 219-vi (2014-15), chapter 3 (9
July 2014) and Twenty-fifth Report HC 219-xxiv (2014-15), chapter 7
(10 December 2014). One formal reasoned opinion was issued by
the Netherlands Lower House. Back
8 See, in particular, Danish paper Folketinget: Twenty-three recommendations to strengthen the role of national parliaments in a changing European governance
and Dutch Report Tweede Kamer: Ahead in Europe -on the role of the Dutch House of Representatives and national parliaments in the European Union
and the House of Lords EU Select Committee Report The Role of National Parliaments in the European Union. Back
9 See our First Report HC 342-i (2015-16), chapter 1 (21 July 2015)
which recommends this package for debate in European Committee
C. Back
10 Forty-ninth Report HC 83-xliv (2013-14), chapter 1, (7 May 2014)
plus annex. Back
11 For the latest Report from our predecessor Committee see First
Report HC 219-i (2014-15), chapter 11, (4 June 2014). Back
12 For the last Report from our predecessor Committee see Thirty-seventh
Report HC 219-xxxvi (2014-15), chapter 25, (18 March 2015). Back
13 The proposal was withdrawn in February 2015. Back
14 For the last Report from our predecessor Committee see Twelfth
Report HC 219-xii (2014-15), chapter 1, (10 October 2014). Back
15 See Thirty-first Report, HC 83-xxviii (2013-4), chapter 8, (22
January 2014) and Forty-fifth Report HC 83-xl (2013-14), chapter 10,
(2 April 2014). Back
16 See our First Report HC 342-i (2015-16), chapter 30, (21 July
2015). Back
17 For the last Report of our predecessor Committee on this see Twentieth
Report HC 83-xix (2013-14), chapter 6, (30 October 2013). Back
18 The Conference of Parliamentary Committees for Union Affairs of
Parliaments of the European Union. Back
19 Evidence session 1of 30 June 2015. See Q 15. Back
20 The Conference of Parliamentary Committees for Union Affairs of
Parliaments of the European Union. Back
| 
