The monitoring of subsidiarity
and proportionality
45. A separate Protocol (No. 2) on the application
of the principles of subsidiarity and proportionality is annexed
to the Reform Treaty. Existing Treaty provisions set out the principle
of subsidiarity in some detail and require the Commission to consult
and justify its actions. Except for a steer to COSAC to look at
subsidiarity issues, the existing Treaties are silent on the questions
of national parliamentary scrutiny of subsidiarity.
46. We recommend that the Government explain
why the text of Article 8c inserted by the Reform Treaty only
mentions respect for subsidiarity and not proportionality: the
Protocol covers both.
47. Protocol (No. 2) provides that:
- EU institutions shall respect
subsidiarity.
- Draft legislative acts shall be forwarded to
national parliaments "justified with regard to the principles
of subsidiarity and proportionality" including a financial
assessment; assessment of implications for national and regional
legislation; and qualitative and where possible quantitative indicators;
and shall take account of the need for financial and administrative
burdens to be "minimised and commensurate with the objective
to be achieved".
- National parliaments have eight weeks in which
they can send a reasoned opinion saying why a draft does not comply
with the principle of subsidiarity.
- If a sufficient number of chambers of national
parliaments[9] raise concerns,
the proposal will need to be reviewed and the EU institution concerned
(usually the Commission) would have to review its proposal and
could decide to maintain, amend or withdraw the draft. "Reasons
must be given for this decision". (This is the so-called
"yellow card".)
- The European Court of Justice has "jurisdiction
in actions on grounds of infringement of the principle of subsidiarity
by a legislative act … brought by a Member State or notified
by them in accordance with their legal order on behalf of their
national parliament or a chamber of it".
48. Under the Constitutional Treaty the yellow
card was played if one third[10]
of chambers of national parliaments objected. Under the Reform
Treaty, in the case of draft legislative acts subject to the ordinary
legislative procedure[11]
where the reasoned opinions represent a simple majority "of
the votes allocated to national parliaments" the Commission
must, if it decides to maintain a proposal after review, "justify
why it considers that the proposal complies with the principle
of subsidiarity". The Union legislator (i.e. the Council
and the European Parliament) shall then take account both of the
national parliaments' opinions and the Commission's justification
before concluding first reading of the proposal. If 55% of the
Council members, or a majority of votes cast in the European Parliament,
object to the proposal on subsidiarity grounds it must be dropped.
This is the so called "orange card".
49. We probed in evidence whether the orange
card procedure in any way allowed the Council or the European
Parliament to act on behalf of national parliaments but witnesses
were clear that it did not: the provision allowed the views of
national parliaments to be taken into account (QQ 23, 27).
Andrew Duff as a member of the European Parliament would "greatly
welcome" national parliaments taking their scrutiny role
more seriously using the new procedure to increase their inputs
(Q 84).
50. We see no problem in there being two systems,
the yellow and the orange cards, as the orange card is a stronger
mechanism triggered at a higher threshold of votes. Certain detailed
questions may nevertheless be asked about the orange card:
- Is it appropriate to give national
parliaments what is an advisory rather than direct power of veto?
- Why is it restricted to Commission initiatives
and not available for proposals from the other institutions, as
the yellow card is?[12]
- Who is to submit national parliaments' reasoned
opinions to the legislator? Will it be the Commission? If so,
how will impartiality be seen to be ensured?
- Why is the threshold for votes in the Council
a majority of members rather than of votes cast, as is the case
with an vote in the European Parliament? What effect will abstentions
in the Council have on this process?
- How will national parliaments be informed of
the outcome of any such votes?
51. We recommend that the Government establish
a mechanism to ensure that the details of the operation of these
procedures are discussed and agreed with both Houses of Parliament.
52. During scrutiny of the now defunct Constitutional
Treaty the Committee produced a full report[13]
(with evidence from academics and others) on the parliamentary
implications of the yellow card[14],
covering issues such as the mechanisms by which the House might
wish to exercise its powers; and the complications in the proposal
for reference of a matter from national parliaments to the ECJ.
Principal features of that report were:
- full analysis of subsidiarity
and its history;
- criticism that the proposed six weeks period
was too short;
- a welcome for the independent yellow card for
each House but a commitment to cooperate with both the Commons
and regional parliaments and assemblies in coming to a view on
an individual legislative proposal;
- a recommendation that the House should cast the
vote under the yellow card, but that it should do so when a report
from the Committee triggered such a debate;
- considerable doubts about the meaning of the
provision to allow reference from national parliaments to the
ECJ and in particular some hesitancy on the part of the Government
to accept that this represented an independent power for Parliament.[15]
53. These detailed issues will need to be
revisited later in the light of the final Treaty text. The Committee
will accordingly wish to review its earlier report in some detail.
Existing exchanges with the Commission
54. A final issue with regard to this Protocol
is that it makes no mention of the system agreed by the Commission
and noted in the European Council Conclusions of June 2006 whereby
national parliaments are encouraged to correspond with the Commission
on any legislative matter, in particular (but not limited to)
subsidiarity and proportionality. This is sometimes called "the
Barroso initiative". The Committee attaches great importance
to this process, as does COSAC. The Committee asked the Government
whether it should be enshrined in the Treaty. The Minister replied
that the Barroso initiative was working well and "there is
no reason why it should not continue"[16].
Andrew Duff MEP hoped there would be more proactive networking
by national parliaments (Q 85).
55. In the light of the Minister's reply there
seems no need for the Barroso initiative to be included in the
Treaty but the Committee nevertheless reiterates the value of
maintaining it. We are pleased to note that the Commission remains
strongly committed to this initiative (QQ 55-57).
7 Ref to Minister in previous Report. Back
8
15th Report (2004-05), HL Paper 102 "Clause 2 of the European
Union Bill-the Constitution's Passerelle provisions" Back
9
The text clearly states that each chamber of a bicameral parliament
has one vote. Back
10
One quarter is the threshold in certain matters of freedom, security
and justice. Back
11
i.e. co-decision and QMV. Back
12
The Commission's view is that this was an oversight (Q 60). Back
13
"Strengthening National Parliamentary Scrutiny of the EU-the
Constitution's subsidiarity early warning mechanism", 14th
Report (2004-05) HL Paper 101. Back
14
The Committee did not support earlier suggestions for a "red
card", whereby a majority of national parliaments' votes
could block a proposal, which was then dropped. Back
15
In France, the national constitution was changed to make the power
of their parliament clear in this regard. Back
16
See Appendix 1. Back
