House of Lords - The Role of the National Parliaments in the European Union

The Role of the National Parliaments in the European Union - European Union Committee Contents

CHAPTER 4: The Reasoned Opinion procedure

Overview

60. The Lisbon Treaty 2009 gave national parliaments a formal role in the scrutiny of EU legislative proposals, notably through the reasoned opinion procedure. This procedure is explained in Box 1.

BOX 1

The Reasoned Opinion Procedure

· Sometimes known as the 'Yellow Card' procedure, though there is no mention of coloured cards in the EU Treaties.

· Draft legislative acts are transmitted by the Commission to national parliaments.

· Within eight weeks, each national parliament, or chamber, may issue a "reasoned opinion" "stating why it considers that the draft in question does not comply with the principle of subsidiarity" (Article 6, Protocol 2).

· Definition of subsidiarity principle: "the Union shall act only if and in so far 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" (Treaty on European Union (TEU) Article 5).

· A reasoned opinion from one of the 15 unicameral Parliaments counts as two votes; a reasoned opinion from a chamber in one of the 13 bicameral Parliaments counts as a single vote. There are 56 votes available in total.

· If reasoned opinions are submitted comprising more than one third of the total votes (a Yellow Card), the Commission must review the proposal and "may decide to maintain, amend or withdraw" it. "Reasons must be given for this decision" (Article 7(2), Protocol 2). For legislative proposals concerning police co-operation or criminal justice, the threshold is one quarter of votes, not one third.

· If reasoned opinions comprising over half of the total votes are submitted (an Orange Card), the Commission must review the proposal and, if it nonetheless wishes to proceed, justify why it considers that the proposal complies with the principle of subsidiarity (Article 7(3), Protocol 2). If the Commission does proceed, a majority vote in the European Parliament, or a vote of 55% of the Member States in the European Council, will block the proposal.

· These procedures do not apply in areas where the Union has exclusive competence (customs union; competition rules necessary for the internal market; monetary policy; conservation of marine resources under the Common Fisheries Policy; common commercial policy).

· The procedures do apply to any legislative initiatives from institutions other than the Commission: groups of Member States, the European Parliament, the European Central Bank and the European Investment Bank.

· The Protocol also provides that a national parliament may bring a case before the EU Court of Justice, arguing that an adopted legislative act does not comply with the principle of subsidiarity. This is known as the Red Card procedure.

Source: Articles 5 and 12, TEU; Protocols 1 and 2 to the EU Treaties

From the coming into force of the Lisbon Treaty in December 2009 to the end of February 2014, two Yellow Cards had been triggered (see Box 3), no Orange Cards had been triggered, and no Red Cards had been issued.

BOX 2

What is the difference between a Reasoned Opinion and a Yellow Card?

A reasoned opinion is issued by a national parliament or chamber if it thinks that a draft EU law does not comply with the principle of subsidiarity (it thinks that the matter could better be addressed by Member States individually, not the EU collectively).

A Yellow Card is triggered if enough parliaments or chambers issue reasoned opinions on the draft law. A Yellow Card forces the European Commission to conduct a review.

61. Miroslav Krejca, Chairman of the Committee on European Affairs, Czech Senát, described the reasoned opinion procedure as "a stimulating factor that could enhance" the involvement of national parliaments in EU affairs.[47] In other words, the procedure is important as it encourages national parliaments to take an active interest in EU matters, beyond the narrow terms of the procedure itself. This is illustrated by the fact that in 2009, the year before the procedure came into effect, national parliaments sent around 250 written opinions to the Commission on EU policy matters: by 2012 this had risen to 663 written opinions (including 70 reasoned opinions).[48] The European Union Policies Committee of the Italian Camera dei Deputati considered that the new powers conferred on national parliaments "have promoted a dramatic increase in the EU-related activities of most assemblies".[49]

62. Since the Lisbon Treaty came into force at the end of 2009, until the end of 2013, the Commission introduced around 454 draft legislative acts which were eligible for the reasoned opinion procedure.[50] In each case the Commission was required to explain why it considered that the proposal was consistent with the principle of subsidiarity—and in most cases there has been little serious doubt.

63. The 2012 Annual Report of the European Commission Impact Assessment Board (a quality control body which examines and issues opinions on all Commission impact assessments) noted that the proportion of occasions on which it raised concerns about the handling of subsidiarity decreased from 43% in 2010 to 33% in 2011. The Board remained concerned that misgivings were still expressed in a "significant number of opinions" and recommended that all services "pay particular attention to the justification of proposals on subsidiarity grounds, particularly in view of the new subsidiarity control mechanisms introduced by the Lisbon Treaty".[51] This suggests that Dr Ben Crum, Vrije Universiteit Amsterdam, and Professor John Erik Fossum, University of Oslo, are correct in their view that the Commission is internalising the principle of subsidiarity, but also underlines the importance of national parliaments remaining vigilant in assessing the compliance of new legislative proposals with that principle.[52]

TABLE 1

Number of Reasoned Opinions issued 2010-2013

Year	Reasoned Opinions	Yellow Cards
2010	34	0
2011	64	0
2012	70	1
2013	92	1
TOTAL	260	2

Sources: see Appendix 6

64. Even taking into account that Commission proposals are subject in advance to an internal subsidiarity check, the number of reasoned opinions issued by national parliaments, around 260 over four years, is very low (see Table 1).[53] The number of Yellow Cards triggered, two, is remarkably low. In the first case the Commission decided to withdraw the proposal concerned, but asserted that this was not because of the Yellow Card; and in the second case it decided to maintain the proposal unchanged. Box 3 provides more details.

BOX 3

Yellow Cards

Right to Strike ('Monti II') proposal[54]

In an attempt to address concerns that, in the single market, economic freedoms would prevail over fundamental freedoms such as the right to strike, the Commission proposed to clarify the relationship between those freedoms. It set out provisions on resolution mechanisms in the case of disputes in circumstances with a cross border character. Several national parliaments were unconvinced either that the proposal was justified or that it would help to clarify the relationship between the freedoms. Reasoned opinions amounting to 19 votes were issued, triggering in May 2012 the first Yellow Card.[55] The Commission withdrew the Monti II proposal—but asserted that it was being withdrawn because of political disagreement in the Council, and not because of the Yellow Card played by national parliaments.

European Public Prosecutor's Office (EPPO) proposal[56]

The Commission's proposal would establish an EU level body with the exclusive power to investigate and prosecute criminal offences affecting the financial interests of the Union and closely related offences. Many national parliaments considered that the Commission had failed to demonstrate the desirability of the proposed EU level action and that it would fail to achieve its objectives as it would have damaging effects on existing Member State systems. Reasoned opinions amounting to 18 votes were issued, triggering in October 2013 the second Yellow Card.[57] The Commission quickly decided to maintain the EPPO proposal, and its fate now lies in the hands of the Council and the European Parliament.

65. Some of our witnesses argued that the procedure is not working as intended. The Saeima of Latvia argued that "subsidiarity checks have not added real power to national parliaments".[58]

66. A January 2014 report by the European Parliament, prepared by the Legal Affairs Committee, welcomed "the closer participation of national parliaments in the framework of the European legislative process". The report went on to note "with concern that some reasoned opinions from national parliaments highlight the fact that, in a number of the Commission's legislative proposals, the justification of subsidiarity is insufficient or non-existent"; and to highlight "the need for the European institutions to make it possible for national parliaments to scrutinise legislative proposals by ensuring that the Commission provides detailed and comprehensive grounds for its legislative decisions on subsidiarity and proportionality in accordance with Article 5 of Protocol No 2 to the Treaty on the Functioning of the European Union".[59]

67. The reasoned opinion procedure can, and must, be made more effective. It is an important way in which national parliaments can contribute to the making of EU legislation; and can thereby enhance the quality and legitimacy of that legislation.

68. In the rest of this chapter we set out key problems with the current operation of the reasoned opinion procedure, and suggest a range of ways in which these problems could be addressed.

69. National parliaments working together may wish to consider which particular changes they would like to see made to the operation of the reasoned opinion procedure.

70. The key elements of the procedure, including its scope, the deadlines, and the effect of a Yellow Card being issued, are set out in the EU Treaties and could only formally be changed through a revision to the Treaties. However, it would be possible for the Member States acting together in the Council, in co-operation with the European Commission, to agree a package of improvements. The parliaments, Council and Commission could undertake to operate the reasoned opinion procedure consistently with the agreed changes.

71. These are some of the options for inclusion in an inter-institutional agreement to improve the operation of the reasoned opinion procedure:

· scope: including the proportionality principle within the procedure, and a check that an appropriate legal base is being used;

· deadline: extending the time period for reasoned opinions to be submitted, from 8 weeks, to 12 or 16 weeks;

· Commission engagement: improving the quality of the Commission's explanatory memorandums on subsidiarity and its engagement with reasoned opinions;

· effect: establishing that if a Yellow Card is triggered the Commission will either withdraw or substantially amend the proposal;

· threshold: considering whether the threshold for triggering a Yellow Card should be lowered;

· timing: considering whether the reasoned opinion procedure might somehow remain open, or be re-engaged, later in the legislative procedure.

The rest of this chapter examines each of these options.

Scope

72. Many people have noted that there is no clear, detailed and widely accepted definition of what constitutes a breach of the subsidiarity principle. Some of our witnesses argued that there should be such a definition or commonly agreed understanding. Professor Asteris Pliakos, Professor of European Union Law at the Athens University of Economics and Business, suggested that national parliaments, the Commission, the European Parliament and the Committee of the Regions should agree "a commonly accepted definition".[60] A majority of the Members of national parliaments who commented shared the view of the EU Affairs Committee of the Estonian Riigikogu that "there should be enough freedom to interpret and understand the subsidiarity element at national level".[61]

73. It is inevitable that the assessment undertaken by national parliaments may include a 'political' as well as a strictly 'legalistic' element, and the assessment will be informed by the particular outlook of the national parliament in question. Indeed, the purpose of the procedure is, in part, to ensure respect for the diversity of the Union.

74. While there may be a useful role for COSAC in sharing practical experience in how to conduct subsidiarity assessments and how to prepare an effective reasoned opinion, we do not think that it would be sensible to attempt a more precise definition of the subsidiarity principle than the definition that is already set out in the EU Treaties.

75. Witnesses including the French Sénat suggested that the reasoned opinion procedure should be extended to cover proportionality as well as subsidiarity.[62] The principle of proportionality is defined under Article 5 of the Treaty on European Union as requiring that "the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties". As set out in Box 1, subsidiarity is defined in that Article as requiring that "in areas which do not fall within its exclusive competence, the Union shall act only if and in so far 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". In other words, subsidiarity requires that things be done at the lowest sensible tier of government, while proportionality requires that, where the Union takes action, that action must be proportionate to the achievement of the relevant Treaty objective.

76. The Swedish Riksdag has argued that proportionality and subsidiarity are often inter-linked, and indeed the section of the EU Treaties setting out the detail of the reasoned opinion procedure is already entitled the Protocol on the application of the principles of subsidiarity and proportionality (italics added).[63]

77. The two concepts are clearly closely related, and explicitly extending the procedure to include proportionality would avoid sterile disputes about whether a particular concern about a proposal fell under one heading or the other. It would make it more clear that, as well as examining the objectives of the proposed action, national parliaments should be examining the precise content and form of that action.

78. EU legislative proposals must specify under which article of the EU Treaties they are being introduced (their 'legal base'), and the French Sénat argued that the reasoned opinion procedure should encompass consideration of whether the legal base for the proposal adequately supports the action proposed by the Commission.[64] This seems to the Committee a logical modest extension to the reasoned opinion procedure, which would allow national parliaments to confirm that each legislative proposal has an appropriate basis under the EU Treaties. Without such a basis, action should not be taken at EU level.

79. Witnesses have made a strong case that the reasoned opinion procedure should be extended to include the principle of proportionality. There is also a strong case that the procedure should encompass whether the proposal is brought forward under an appropriate legal base. We support both of these suggestions.

Deadline

80. A large number of witnesses argued that the current maximum time period of eight weeks for national parliaments to assess legislative proposals, and prepare and submit reasoned opinions, is too short.[65]

81. In the Committee's experience, eight weeks is usually just about sufficient for an individual chamber to assess a legislative proposal, and issue a reasoned opinion if it wishes. However, this proves challenging for complex proposals, or at certain times of year. For example, the period for the subsidiarity check for the European Public Prosecutor's Office proposal began on 2 September 2013. During the parliamentary recess our Justice and Institutions Sub-Committee carefully considered the proposal and, as is usual, further information and assessment provided by the UK Government. The Sub-Committee then referred the proposal to the main EU Committee, which recommended that the House should issue a reasoned opinion. It was only possible to debate the proposed reasoned opinion on 28 October 2013, the day that the formal eight week period expired. It is also vital that devolved and regional parliaments and assemblies, which have an important role in the reasoned opinion procedure, have sufficient time to comment if they wish.

82. Moreover, eight weeks may well be insufficient to allow national parliaments to share information with each other. Effective communication was crucial in the issuing of the first Yellow Card with certain national parliaments, notably the Danish Folketing, active in spreading awareness of the implications of the Monti II proposal. Even with a conveniently timed COSAC conference in Copenhagen halfway through the eight week period the timings proved tight, with five chambers only passing their reasoned opinions in the final week before the deadline.[66] The Committee on the Constitution of the Swedish Riksdag has commented that a longer period would make it "easier for more parliaments to examine a greater number of proposals and would facilitate inter-parliamentary co-operation"[67] and Dominic Hannigan TD, Chairman of the Irish Oireachtas Joint Committee on European Affairs and a recent former chairman of COSAC, confirmed the importance of effective information exchange between national parliaments.[68] The eight week deadline also makes it highly unlikely that national parliaments will have time to obtain further information from the Commission.

83. There seems to be no significant drawback to a modest extension to the eight week time-limit. Legislative proposals are often preceded by consultation documents, can be many years in the gestation, and after publication usually follow a slow path through the EU legislative process. An extra four or eight weeks near the start of that process seems a small price to pay for better law at the end.

84. We consider that the time limit within which national parliaments can issue a reasoned opinion should be extended, to 12 or 16 weeks.

85. Under Article 4 of the Protocol on the role of national parliaments in the European Union, legislative proposals cannot be placed on the agenda of the Council within eight weeks of their transmission to national parliaments. This time period must obviously be extended to match any extension of the time period within which national parliaments can issue reasoned opinions.

Commission engagement

86. The Protocol to the EU Treaties on the application of the principles of subsidiarity and proportionality makes it clear that it is the responsibility of the Commission to provide "a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality", adding that "the reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators" (Article 5). We note that it is not up to national parliaments to prove beyond doubt that a proposal does not meet the subsidiarity principle: the onus is on the Commission to explain why it does. It is the responsibility of the Commission to provide a clear explanation of why it considers that a proposal complies with the principles of subsidiarity and proportionality. In the absence of a comprehensive and convincing assessment by the Commission, it is appropriate for a national parliament to come to the conclusion that it has not been proven that a proposal complies with the subsidiarity principle.

87. Whether or not a Yellow Card is triggered, the Commission replies to reasoned opinions in writing. Several national parliaments complained about the inadequacy of replies to reasoned opinions by the Commission. Edmund Wittbrodt, Chairman of the European Union Affairs Committee, Polish Senat, stated:

At its October 2013 conference in Vilnius, COSAC called for "better quality and more timely responses to reasoned opinions".[70]

88. Every reasoned opinion merits a reasoned response. When a reasoned opinion is issued by a national parliament, whether or not a Yellow Card is triggered, that opinion should be seriously considered by the Commission, and a response should be prepared which addresses the concerns raised in that reasoned opinion, in a timely manner.

89. Since COSAC called, in October 2013, for better consideration of reasoned opinions, the Commission has briskly dismissed the Yellow Card on the EPPO proposal. The threshold for the Yellow Card was reached in late October, but only a few days later a Commission official was reported as saying that "the Commission is confident that the next steps towards a strong European Public Prosecutor's Office will be taken in 2014 under the Greek and Italian [EU] presidency".[71] In November 2013 the Commission formally decided to maintain the proposal unchanged.[72] The speed with which Commission officials appear to have briefed that the proposal would be maintained, and with which the Commission as a whole decided to maintain the proposal, do not suggest that the Yellow Card prompted a serious review of the complex, important and far-reaching proposal to establish a European Public Prosecutor's Office. What it suggests, in this case, is a Commission going through the motions to satisfy its treaty obligations.

90. In its response to the Yellow Card against the EPPO proposal,[73] the Commission distinguished certain arguments that it decided were not based on subsidiarity. The Committee does not consider it appropriate for the Commission to assume the sole responsibility for deciding what arguments do, or do not, come within the ambit of the subsidiarity principle. There should be dialogue between national parliaments and the Commission, to determine appropriate guidelines for the Commission to respond to reasoned opinions, whether or not a Yellow Card has been issued.

91. In the longer term, the existence of an effective reasoned opinion procedure will help to stimulate dialogue between the Commission and national parliaments. As Dr Julie Smith observed, "if national parliaments make clear that they are not going to accept certain things, particularly if they are likely to breach subsidiarity, then we might expect gradually the Commission to be seeking to talk to national parliaments … ahead of time, in the way that they will talk with the permanent representations [of the Member States] and the European Parliament, and get a sense of what might be acceptable".[74]

Effect

92. Some have argued that a Yellow Card should be treated as being a 'Red Card'[75] and having the effect of blocking a proposal.[76] The UK Government have advocated such a 'Red Card'. The Minister for Europe argued, in a December 2013 article relating to the EPPO proposal, that the Commission ought to treat every Yellow Card as though it were a 'Red Card'.[77]

93. This interest is perhaps unsurprising given the Commission's response to the Yellow Card on the EPPO proposal. As the EU Treaties recognise, national parliaments play a key part in "the good functioning of the Union" (Article 12, TEU). They are uniquely well placed to understand, and to represent, the views of the citizens of the Member States of the Union. Therefore, if a large number of national chambers have concerns about a legislative proposal which are serious enough for them to issue a reasoned opinion, triggering a Yellow Card, this deserves to be taken seriously.

94. As we have already observed in this Chapter, the reasoned opinion procedure currently places the Commission in a difficult position. A Yellow Card invites it to review a proposal which it will already have decided is consistent, from the Commission point of view, with the principle of subsidiarity. Moving the focus of the procedure to what should be altered as a result of the concerns expressed by a large number of national parliaments, and away from whether the concerns are consistent with the Commission's own interpretation of subsidiarity in relation to the proposal, should make the procedure more equitable.

95. The Committee considers that the Commission should make an undertaking that, when a Yellow Card is issued, it will either drop the proposal in question, or substantially amend it in order to meet the concerns expressed.

Threshold

96. The UK Government suggested that the threshold for triggering a Yellow Card should be lowered from the present one-third of available votes. This would presumably increase the number of Yellow Cards triggered, but an extension of the time period and the scope (to include proportionality and legal base) might also have the same effect, while ensuring that they are still only triggered through the involvement of a substantial number of chambers / parliaments. Nonetheless, the suggestion that the threshold for triggering a Yellow Card should be reviewed deserves further consideration.

Timing

97. The UK Government suggested exploring whether Yellow Cards might be issued "at any point during the legislative process and indeed whether they could be exercised in relation to existing legislation". The Dutch Tweede Kamer has similarly proposed that a "late card" procedure might be added to the existing Yellow and Orange Cards.[78]

98. There would be obvious benefits in allowing national parliaments to remain engaged, or to re-engage, with proposals which can undergo significant changes during the legislative process and which can take several years to come to legislative agreement, during which time the context for the proposal can have changed dramatically. It would be a challenge to create a mechanism which worked effectively from the point of view of national parliaments, and which did not make the already complex EU legislative process more unwieldy. The suggestion that the reasoned opinion procedure might remain open, or be re-engaged at some later point, deserves further consideration.

Another aspect of the legislative procedure: first reading deals

99. The Commission usually initiates legislative proposals, which are then put to the co-legislators—the Council and the European Parliament—for agreement. In recent years there has been an increase in early agreements, or 'first reading deals', between the co-legislators, based on negotiations in informal 'trilogues' also involving the Commission. These negotiations are something of a 'black box' for those not directly involved in them. Witnesses argued that the speed with which the deals are sometimes concluded "puts pressure on the ability of national parliaments to perform scrutiny in a timely fashion".[79] In 2009 this Committee noted that the use of informal trilogues "makes it harder for national parliaments to conduct effective scrutiny of EU legislation".[80]

100. As part of the re-evaluation of the reasoned opinion procedure, consideration should be given to improving the transparency of the later stages of the legislative procedure. The EU legislative procedure is already complicated, and we do not wish to add unnecessary additional layers. However, national parliaments have an important role to play and if that role is confined to the initial Commission proposal it is possible that they will be denied the opportunity to examine important changes brought forward during the negotiations between the Council and the European Parliament.

101. It is vital that national parliaments should have a recognised opportunity for their voices to be heard during the later stages of legislative negotiations, particularly when those negotiations result in major changes to draft legislation. We suggest that the Council consider making a commitment that, if a legislative proposal is significantly altered during its consideration by the co-legislators, the Council will allow sufficient time, and no less than 12 weeks, for each national parliament to scrutinise the new or significantly altered elements of the proposal. This would be a logical development of the role of national parliaments in EU policymaking and without such a commitment there will remain a fundamental gap in the legislative process.

102. Overall, appropriate engagement by national parliaments in the development of EU legislation will result in better scrutinised, and better, laws. As we have set out in the preceding two chapters, the EU legislative process should encourage national parliaments to make an early contribution to the development of policies. Through the reasoned opinion procedure, national parliaments should have an effective formal role when legislative proposals are introduced. National parliaments should be kept informed, particularly by their own governments, as negotiations progress. National parliaments should become involved again at the later stages if there have been major changes to a proposal.

47 Czech Senát. Back

48 Annual Reports from the Commission on Relations between the Commission and National Parliaments for 2009 (COM(2010) 291 final); and 2012 (COM(2013) 565 final). Back

49 Italian Camera dei Deputati. Back

50 European Parliament Directorate for Relations with National Parliaments (8 January 2014), State of Play on reasoned opinions and contributions submitted by national Parliaments under Protocol 2 of the Lisbon Treaty. Back

51 European Commission Impact Assessment Board Report for 2012. Back

52 Dr Ben Crum & Professor John Erik Fossum. Back

53 Appendix 6 sets out the numbers of reasoned opinions issued by each national parliament or chamber, together with information about the total number of written opinions (whether reasoned opinions or opinions submitted under the political dialogue). Back

54 COM(2012) 130 final: Proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services. Back

55 This took place before Croatia formally acceded to the EU on 1 July 2013, so the threshold for triggering a Yellow Card in this case was one third of 54: 18 votes. Back

56 COM(2013) 534 final: Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office. Back

57 This is a proposal relating to Justice and Home Affairs, so the required threshold was one quarter of 56:
14 votes. Back

58 Saeima of Latvia. See also Ashley Fox MEP, Q 115; Richard Corbett, Q 80. Back