House of Lords - European Union

Select Committee on European Union Tenth Report

CHAPTER 11: NATIONAL PARLIAMENTS—THE DEMOCRATIC CHALLENGE

11.1. It is one of the explicit aims of the Lisbon Treaty, set out in its Preamble, to enhance the "democratic legitimacy of the Union". This has been a theme of the whole process leading up to the Treaty, beginning with the Laeken Declaration in December 2001. The Treaty includes a new section of the TEU, Title II Provisions on Democratic Principles. This contains provisions for EU citizenship (see Chapter 2), and new provisions designed to improve the connection between the EU institutions and society at large. New Article 11 TEU creates a requirement in general terms for dialogue with civil society. It also provides for citizens' initiatives, whereby a million citizens can put an issue on the Commission's agenda (see also Article 24 TFEU). Article 17 TFEU provides particularly for dialogue with churches and similar bodies.

11.2. In this context the Lisbon Treaty presents substantially new provisions concerning national parliaments. These are set out below, in order of appearance in the Treaties.

GENERAL STATEMENTS

11.3. First, the Lisbon Treaty includes some general statements about national parliaments. "National Parliaments ensure compliance with the principle of subsidiarity" in accordance with the Protocol on the application of the principles of subsidiarity and proportionality (new Article 5 TEU). "National Parliaments contribute actively to the good functioning of the Union" in certain specified ways (new Article 12 TEU).

11.4. Those specified ways are:

Receipt of information and draft legislation direct from the EU institutions (discussed below)

Ensuring compliance with the subsidiarity principle (discussed below; see also new Articles 5 TEU, and 69 TFEU in respect of the area of freedom, security and justice)

Taking part in evaluation of EU policies in the area of freedom, security and justice (see also new Article 70 TFEU)

Monitoring and scrutiny of Europol (see also new Article 88 TFEU)

Involvement in evaluation of the activities of Eurojust (see also new Article 85 TFEU)

Taking part in any future Treaty revision (discussed in Chapter 3)

Being notified of applications to join the EU (see also Article 49 TEU as amended)

Interparliamentary cooperation both with other national parliaments and with the European Parliament (discussed below).

11.5. The first of several new Protocols to the Treaties is the Protocol on the role of national parliaments in the EU. This is to replace a Protocol of the same name which formed part of the Treaty of Amsterdam and is currently Protocol No. 9 to the TEU and TEC. According to the Preamble to the current version, Member States desire "to encourage greater involvement of national parliaments" in EU activities, and to enhance their ability to express views. The Lisbon Protocol repeats this sentiment, and specifies that the views in question may be on draft legislative acts as well as other matters.

RECEIPT OF DOCUMENTS AND TIME FOR SCRUTINY

11.6. The Protocol on the role of national parliaments in the EU provides more detail on other aspects of national parliaments' contributions to "good functioning" under new Article 12 TEU. First, it spells out their extended right to receive documents direct from the Commission (or other originating institution) rather than having to wait for deposit by government. Under the current Protocol, this applies already to Commission consultation documents. The Lisbon Protocol extends it to:

the annual legislative programme and other "instruments of legislative planning or policy"

"draft legislative acts", including initiatives from a group of Member States

Council agendas and minutes

the Court of Auditors' annual report.

11.7. In a bicameral parliament this right will apply to both Houses.

11.8. The current Protocol prescribes a period of at least six weeks between publication of draft EU legislation "in all languages" and placing it on a Council agenda for decision, to give time for scrutiny by national parliaments. The new Protocol strengthens this provision. There are to be at least eight weeks "between a draft legislative act being made available to national Parliaments in the official languages of the Union and the date when it is placed on a provisional agenda for the Council for its adoption or for adoption of a position under a legislative procedure". There are then to be at least 10 days between placing on the agenda and the adoption of a position. There is provision for exceptions "in urgent cases for which due reasons have been given".

INTERPARLIAMENTARY COOPERATION

11.9. The current Protocol put on a Treaty footing the Conference of European Affairs Committees of national parliaments, founded in 1989 and known as COSAC[256]. The Lisbon Protocol goes further, to provide a Treaty basis for cooperation between national parliaments and the European Parliament. National parliaments and the European Parliament "shall together determine the organisation and promotion of effective and regular interparliamentary cooperation". And there is to be "a conference of Parliamentary Committees for Union Affairs"—currently COSAC—with certain rights and duties. The conference:

may communicate with the European Parliament, the Council and the Commission
may not bind national parliaments or "prejudge their positions"
"shall" promote exchange of information and best practice
may organise interparliamentary conferences.

11.10. The first two of these attributes already apply to COSAC in the current version. The other two are new, and formalise activities which COSAC is already undertaking.

SUBSIDIARITY, PROPORTIONALITY AND THE YELLOW AND ORANGE CARDS

11.11. The principles of subsidiarity and proportionality entered the EU Treaties with the Maastricht Treaty. General statements of these principles are currently in Article 5 TEC and will be preserved in new Article 5 TEU. The new versions are as follows:

Subsidiarity—"In areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level" (the words in italics are new)

Proportionality—"the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties" (again, the words in italics are new).

11.12. The Amsterdam Treaty added a Protocol on the application of the principles of subsidiarity and proportionality, currently Protocol No. 30 to the TEC. This expands on the principles; it sets out in considerable detail what effects they do and do not have; and it gives guidelines for judging whether they have been observed. It also lays down procedural requirements. The Commission must:

consult widely before legislating
justify its proposals with regard to subsidiarity, using qualitative and if possible quantitative indicators
make an annual report on the application of the principles.

11.13. The Lisbon Treaty rewrites this Protocol, deleting everything except the procedural requirements. These however are considerably extended. Commission consultation is to "take into account the regional and local dimension". Justification is to cover proportionality as well as subsidiarity, and is to include financial and regulatory impact assessment.

11.14. The Lisbon Treaty introduces new procedures known as the "yellow and orange cards". These give national parliaments the right to express concerns on subsidiarity directly to the institution which initiated the proposed legislation. Within eight weeks from "the date of transmission of a draft legislative act in the official languages of the Union", any parliament or chamber may submit "a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity". A voting system then applies, with two votes for each national parliament. In a bicameral parliament each chamber has one vote, and they may be operated independently. With 27 Member States at present, the total number of votes available is 54.

11.15. If at least one third of available votes (currently 18) are cast against a proposal in this way, the institution which made it must review it. For proposals on judicial cooperation in criminal matters and police cooperation, the threshold is one quarter of votes (i.e. 14 at present). Following review, the institution which proposed the draft legislative act may maintain, amend or withdraw it; it must give reasons for its decision. This is the "yellow card" mechanism. Since 2005, COSAC has organised pilot subsidiarity checks, whereby committees from all national parliaments have been asked to assess selected proposals against the subsidiarity and proportionality principles within the time allowed and to report on their conclusions.[257]

11.16. The "orange card" mechanism applies only to the ordinary legislative procedure. It involves a higher threshold and more stringent consequences. If a majority of available votes (currently 28) are cast against a proposal, the Commission must review it. They may then maintain, amend or withdraw it. If they maintain it, they must give reasons. Before the end of first reading, the European Parliament and the Council must consider the proposal against the subsidiarity principle, in the light of the reasoning offered by national parliaments and by the Commission. If the Council, by a majority of 55%, or the Parliament, by majority of the votes cast, find against the proposal, it falls.

ARTICLE 308

11.17. Article 308 TEC is the "flexibility clause", providing a Treaty basis for action at EU level which is necessary to attain a Community objective but for which there is no other Treaty basis. The Lisbon Treaty renumbers it 352 and makes the following changes:

The objectives of the Community/Union referred to are reformulated (they are now set out in the TEU—see Chapter 2 above).

Article 308 currently applies only to the Community (first pillar). As amended, it will apply to the Union—but not to the CFSP.

Article 308 can currently be used "to attain, in the course of the operation of the common market, one of the objectives of the Community". As amended, it will be able to be used "within the framework of the Policies defined in the Treaties, to attain one of the objectives set out in the Treaties".

The new Article will not be able to be used to harmonise national laws "in cases where the Treaties exclude such harmonisation".

The Council is currently required to consult the European Parliament. The amended Article will require the Parliament's consent.

The Commission is to "draw national parliaments' attention" to proposals adopted under the amended Article, using the yellow and orange card procedure.

DEVOLUTION

11.18. In the UK, the "national parliament" is the Westminster Parliament. It does not include the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly. According to the new Protocol on subsidiarity and proportionality, before voting for a yellow card national parliaments may consult regional parliaments "where appropriate". Consultation with the devolved institutions is discussed in Chapter 6.

EUROPEAN COURT OF JUSTICE

11.19. There is one further procedure, prescribed in less detail. The ECJ will have express jurisdiction to enforce the subsidiarity principle. Actions may be brought by Member States; or may be "notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof". The Court can currently judicially review legislation adopted to check compliance with subsidiarity under Article 5 TEC, and has done so.[258] To the best of our knowledge, however, it has never struck down a piece of EU legislation on the basis that it infringes subsidiarity.

PUTTING THESE PROVISIONS IN CONTEXT

11.20. These provisions build on foundations laid over several years. COSAC was founded in 1989. In 1992 the Maastricht Treaty articulated the principles of subsidiarity and proportionality. The Amsterdam Treaty in 1997 went further on these two principles, created a formal opportunity for scrutiny of draft EU legislation by national parliaments (the six week period described above), and put COSAC on a Treaty basis. The House of Commons opened a UK National Parliament Office in Brussels in 1999, to improve contact with the EU institutions and input to COSAC; a member of the staff of this House joined the Office in 2005.

11.21. In 2006 the Commission launched the "Barroso initiative" for direct dialogue with national parliaments.[259] It began to send documents to national parliaments directly, and for the first time opened a formal pathway for national parliaments to respond with views on these documents. We have also, on our own initiative, sent to the Commission those of our reports which recommend action by the Commission, and in each case the Commission has responded. [260]

11.22. Cooperation between parliaments has also grown. The parliament of the Member State holding the Presidency currently organises a number of joint committee and joint parliamentary meetings with the European Parliament to which representatives from all national parliaments are invited.

11.23. This Committee has reported several times on the yellow card procedure at various stages of its evolution. Our most recent report was based on the now defunct Constitutional Treaty, and was published in April 2005; but most of what it said still stands. The main points are summarised in Box 4.

BOX 4

Our report on the yellow card of 2005—main points

The report went into detail on the meaning and history of the subsidiarity principle, and the emergence of the proposal for the yellow card. It recorded different views as to the effectiveness of the subsidiarity principle to date.

We considered in detail how the procedure should operate in this House. We recommended that the vote should be cast by the House, on the basis of a report from ourselves. We recommended that exceptionally, if the deadline for decision fell in recess, the House could delegate the decision to this Committee. We recommended that, if either House voted for a yellow card, the Government should not support the proposal in question in the Council without first giving reasons to Parliament; the Government agreed "in principle". While we envisaged close communication with the Commons, we reckoned that in the end the two Houses were entitled to take different views.

The Government submits an Explanatory Memorandum (EM) on every EU document deposited for scrutiny in Parliament, including a view on subsidiarity. It is meant to do so within two weeks of deposit. Given the short time allowed for the yellow card procedure, we recommended that, if the EM were delayed, the subsidiarity analysis should be presented separately. The Government undertook to present it "as early as possible".

The report considered how devolved assemblies could play a role in the new procedure. It also considered the provision allowing national parliaments to invoke the ECJ.

We also considered how the procedure would play out beyond Westminster. We examined the readiness of each chamber around the Union to operate the new procedure, and we strongly advocated cooperation between national parliaments in doing so. But we came out against tactical voting; national parliaments should vote on the merits of each case, not on the basis of the prospect of reaching the threshold for a yellow card. We noted that adverse votes would exert political pressure, even if the threshold were not reached.

Strengthening national parliamentary scrutiny of the EU—the Constitution's subsidiarity early warning mechanism, 14th Report 2004-05, HL 101

Government response published in Scrutiny of Subsidiarity: Follow up Report, 15th Report 2005-06, HL 66

Evidence

OBLIGATIONS ON NATIONAL PARLIAMENTS

11.24. The original draft of the Lisbon Treaty stipulated in what is now Article 12 TEU that "national parliaments shall contribute …" This was translated in French, which has no direct equivalent of the English mandatory "shall", as "Les parlements nationaux contribuent …" This can be translated literally, "national parliaments contribute". However this does not mean that the French version is necessarily devoid of mandatory connotation.

11.25. Following representations by the EU scrutiny committees of both Houses[261], the English version of Article 12 TEU has been amended to delete "shall"; but in other languages the drafting has not changed. The Government insist that there are no obligations (e.g. Explanatory Memorandum on the Treaty of Lisbon para 15), and in September 2007 both Kim Darroch, UK Permanent Representative to the EU, and Christian Leffler of the Commission, told us that no obligation was envisaged when the Treaty was drafted (Work in Progress[262] para 30). Mr Darroch said, "There is no mandatory sense in the French". Responding to Work in Progress, the Government said, "That position has been acknowledged by all Member States and by the Presidency; Portuguese Foreign Minister Amado wrote to the Foreign Secretary to confirm that: 'this article imposes no obligation on national Parliaments and is purely declaratory in nature'".[263] The point is however arguable: see Appendix 4.[264]

11.26. "Shall" was also removed from Article 5 TEU and Article 69 TFEU, both of which deal with national parliaments ensuring compliance with subsidiarity. It survives in the Protocol on the role of national parliaments, in Article 9 on interparliamentary cooperation (see above). The Government explained that this "refers to the need for the European Parliament to cooperate with national Parliaments".

11.27. Andrew Duff MEP, a supporter of the Treaty, saw Article 12 TEU as merely a useful description (p S138). The European Parliamentary Labour Party welcomed it, on the basis that it "formalises" the right of national parliaments to be involved in EU law-making (p S140). On the other hand, the Campaign against Euro-federalism, quoting it in its original form, considered that it "underlines the subordinate role of national parliaments" (p S125). The Democratic Party[265] felt the same, and were not comforted by the deletion of "shall" (p S157).

11.28. The correspondence about the Treaty which we received from the general public sometimes complained that national parliaments were marginalised by the EU (i.e. "Erosion of national competence under so many areas will make Westminster redundant"—e-mail from Nick Atkinson p S120). But we received no such correspondence complaining about the imposition of obligations.

RECEIPT OF DOCUMENTS

11.29. The provisions for national parliaments to receive additional documents direct are not a subject of widespread comment, perhaps because the Commission are already sending legislative proposals direct as part of the Barroso initiative. The European Parliamentary Labour Party saw this as a "key innovation" (p S139); Professor Peers regretted that it did not go further (p S155).

YELLOW AND ORANGE CARDS

11.30. Mr Nymand Christensen of the Commission considered the Treaty provisions on national parliaments in general, and the yellow and orange card procedures in particular, to be a significant step forward, which "advances the democratic quality of the EU". Subsidiarity "is an important principle for the Union and should be brought to the fore". He hoped that national parliaments would "wake up" to their new role (Q S322).

11.31. John Palmer agreed that the yellow and orange card provisions were important (p S15). In his view their impact would depend on the capacity of national parliaments to exploit them, and to co-operate with one another (Q S34). He advocated involving MEPs in the process of national parliamentary scrutiny. Likewise Professor Wallace saw them as a "window of opportunity being opened", which this House was well placed to exploit (Q S189). Sir Stephen Wall supported the changes; he advised Parliament to organise itself to move fast, particularly over recesses, and to improve coordination with other parliaments (Q S228). The National Farmers' Union welcomed these provisions; they would ensure that the EU "only acts in areas where it adds value" (p D15). They were likewise welcomed by the Coalition for the Reform Treaty (p S130).

11.32. The Law Society of Scotland and Sir David Edward drew attention to the special challenge of operating the yellow card procedure in the particular context of criminal justice. In the UK this is a devolved matter, where Scotland has its own law and institutions. This is discussed in more detail in Chapter 6.

11.33. Lord Leach of Fairford, speaking as Chairman of Open Europe, called the cards "tokenist" (Q S47). Neil O'Brien and David Heathcoat-Amory MP explained the reasoning behind this position (QQ S98-102). The yellow card could only make the Commission think again, which national parliaments can do already. For the orange card, the bar was set so high that, if it were reached, the proposal would in any case be blocked in the European Parliament or the Council. Even the orange card only required the Commission to explain itself better. What was missing was a red card, allowing national parliaments to block a proposal altogether (see also Peers, p S155).

11.34. As evidence that the cards would be ineffective, Mr O'Brien referred to the first COSAC pilot, on the 3rd railway package in 2005. 14 chambers raised subsidiarity issues, but the package was passed regardless in 2007 (Q S100).

11.35. Brendan Donnelly agreed that the yellow card only formalised political reality (p S134). The Commission was not likely to promote a proposal which numerous national parliaments would find offensive to subsidiarity; and if they did, and those parliaments protested, the Commission would think again. A red card would have been impractical, and would also have offended the theory that the main role of national parliaments was to control national governments, leaving democratic control of the Commission to the European Parliament.

11.36. The Centre for European Policy Studies, Egmont and the European Policy Centre (in "the Joint Study")[266] agreed that the cards would not have a big impact, for several reasons. They addressed the wrong target: subsidiarity was more often violated not by EU legislation, but by the implementation of legislation in comitology procedures or by the Commission or Council. The cards lacked teeth, since the Commission might react by maintaining its proposal. The provision in the orange card procedure that a majority of 55% in the Council or a simple majority in the European Parliament killed a proposal (Protocol on Subsidiarity, Article 7.3(b)) was a statement of the obvious. And the record of engagement by national parliaments in EU affairs was generally so poor that regular use of the cards would require a "revolution".

11.37. Richard Corbett MEP regarded the card procedures as an important safeguard, but not one which would be used very often (Q S330). The procedures applied only to proposals as introduced; "the violation of subsidiarity is often with the knobs that are added as you go through Parliament and Council, and especially the Council sometimes" (Q S331).

11.38. The yellow card covers proposals not just from the Commission, but also from other EU institutions with powers of initiative.[267] The orange card covers only Commission proposals. The Commission told us in September 2007 that this was an oversight (Work in Progress fn 12), and that non-Commission proposals were rare and specialised.

11.39. It is interesting to speculate whether national parliaments will be independent of national governments in their use of the card procedures, or whether the decision to vote for a card will in reality be made by the government using its parliamentary majority. The British Government, responding to a recent report of the European Scrutiny Committee of the House of Commons, said, "It is unlikely that the Government would be 'whipping' on the use of the yellow or orange cards".[268]

11.40. What might be the consequences of not playing the yellow card? In our report of 2005, we considered its effect on the procedure for a national parliament to invoke the ECJ. We concluded that "failure to raise the yellow card might cast doubts on the merits of a challenge where the substance of the act in question has not changed and thus have a prejudicial effect on the chances of success of a challenge". Sir David Edward suggested that, if national parliaments did not raise subsidiarity objections at the yellow card stage, then it might be harder for any party to run subsidiarity arguments later (QQ S148-151).

PROPORTIONALITY

11.41. The Protocol covers proportionality as well as subsidiarity; but the cards can be played only on the ground of subsidiarity. We asked the Government why. They replied,

"Subsidiarity involves the assessment of whether the objectives of a particular measures can be sufficiently achieved by Member States, either at central level or regional and local level. It is therefore particularly important, and appropriate, that National Parliaments are given a direct role in relation to this assessment. Compliance with the principle of proportionality is assessed and enforced on the same basis as other general principles of EU law." (p S81)

EIGHT WEEKS

11.42. Eight weeks is longer than the six envisaged in the draft Constitution. John Palmer called this "useful" (p S15); but Professor Chalmers considered it was still not long enough (p S16). He observed that it was the bare minimum allowed for general Commission consultations. He also observed that, following the 2004 enlargement, most dossiers were now agreed at first reading in the European Parliament, rather than later; in such cases, national parliaments' views submitted towards the end of the eight week period would only affect the EU legislative process if the prescribed threshold had been reached to trigger the formal review mechanisms in the Protocol. He recommended that national parliaments should deal with this by strengthening their position upstream in the process, in dialogue with the Commission and with the committees of the European Parliament.

EUROPEAN COURT OF JUSTICE

11.43. The Joint Study raised the possibility that some national parliaments, frustrated by the ineffectiveness of the cards, might make systematic use of the power to invoke the Court. Sir Francis Jacobs expected subsidiarity and proportionality to be raised more often with the Court in any case, and possibly with more success. If the Court began to have more regard to subsidiarity, whether at the behest of individual national parliaments or not, the legislative process could be affected (p S148).

ARTICLE 308

11.44. Lord Pearson of Rannoch expressed concern about Article 308 TEC (renumbered 352 TFEU), the "flexibility clause" (p S151). He drew our attention to recent reports on this subject by the European Scrutiny Committee of the House of Commons. In their 29th Report for 2006-07,[269] they discussed two approaches to the interpretation of the Article: the "literal" approach and the "purposive" approach. Application of the literal approach led to the view that Article 308 was not an appropriate legal base for a measure if it did not have a substantive connection with the operation of the common market. The Committee noted, however, that the usual approach of the ECJ was to interpret the EC Treaty to give effect to what the Court understood to be its purpose. If the purposive approach were applied to Article 308, "in the course of the operation of the common market" might impose little or no constraint on the use of the Article. But the Committee also noted that the ECJ had not been asked to rule on the interpretation of the words and so the interpretation remained arguable. Accordingly, while recognising the weight of opinion in support of the purposive interpretation, the Committee concluded that it would be premature to dismiss the literal approach.

11.45. The Lisbon Treaty will settle this question in favour of the purposive interpretation. According to Mr Nymand Christensen of the Commission, "The new Article 308 is largely the article we know today". The one big change was that the European Parliament would acquire a veto, making the Article less likely to be used than at present (Q S326).

CONSULTING CIVIL SOCIETY, CITIZENS' INITIATIVE

11.46. Professor Chalmers described the Treaty material on representative and participatory democracy as having "a certain symbolic input" (Q S2). He speculated that citizens' initiatives might proliferate, taking up the Commission's time and capturing the agenda (Q S28).

11.47. Mr Nymand Christensen of the Commission did not share these concerns. Initiatives would act as an "electric shock". The procedure would "motivate a debate about what Europe should be doing", and lead to "a stronger, more participatory democracy in Europe" (Q S324).

11.48. The provisions on consulting civil society, and for citizens' initiatives, were welcomed by the NSPCC and Save the Children (p S150). They envisaged that the million citizens required to trigger a citizens' initiative might include children. This will presumably depend on the regulations for citizens' initiatives to be drawn up under Article 24 TFEU. The NFU likewise welcomed the citizens' initiative provisions; they noted that proposals arising this way would be subject to the same level of scrutiny as proposals arising more conventionally (p D15).

Conclusions

OBLIGATIONS ON NATIONAL PARLIAMENTS

11.49. Following the deletion of "shall" from three of the four places where it occurred, we regard it as settled that the Lisbon Treaty places no obligations on national parliaments. Even if a sense of obligation can be construed from some of the other languages, it is inconceivable that anyone would seek to enforce these obligations. In any case, national parliaments will in our view be under a strong political obligation to take seriously the new opportunities created by the Treaty.

YELLOW AND ORANGE CARDS

11.50. The yellow and orange card procedures are a useful innovation. It may be that they will seldom be invoked, but this is true of many of the sanctions available to scrutineers in a democracy. The existence of a sanction gives scrutiny teeth, while making it less likely that the sanction will need to be deployed. The Commission can disregard adverse votes from national parliaments and maintain its proposal; but this may be politically difficult, and if an orange card has been played the proposal is unlikely to find the necessary majority in the Council.

11.51. The extension of the period allowed for scrutiny from six to eight weeks makes the yellow and orange card procedures significantly easier for national parliaments to operate than would otherwise be the case. In practice this Parliament may have even longer, since English is usually the first language to emerge from the Commission translators, and it is typically another month before the last language emerges and the formal scrutiny period begins. Nonetheless it will be challenging even for this Committee to reach a considered view on subsidiarity within this time, particularly if, in the case of an adverse opinion, time needs to be factored in to put a motion to the House, and particularly if much of the period falls in recess.

11.52. A well-founded reasoned opinion may be ineffective for lack of the necessary supporting votes from other chambers within the eight weeks. The success of the card procedure will depend on coordination between national parliaments.

11.53. The increasing trend towards "first reading deals" makes it all the more important that there should be a period for parliamentary scrutiny. It has consequences for parliamentary scrutiny beyond the question of subsidiarity, making it more important for national parliaments to make their views known upstream. The burden is on national parliaments; those which leave it to the end of the eight weeks to express a view, or even later, risk being too late to make any difference. We do not however consider that this undermines the yellow and orange card procedures: during the eight weeks allowed for playing the card, no formal legislative step can be taken, save in case of urgency.