Subsidiarity as a means to enhance cooperation between the EU

CONSTITUTIONAL AFFAIRS

Author: Diane FROMAGE, Maastricht University, The Netherlands

Research administrator responsible: Eeva ERIKSSON

Policy Department for Citizens' Rights and Constitutional Affairs

European Parliament

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Briefing

Subsidiarity as a means to enhance

cooperation between EU Institutions and

National Parliaments

KEY FINDINGS

 Rather than the introduction of the principle of subsidiarity itself in the Treaties in

1992, it is the creation of the Early Warning System in the Lisbon Treaty that has

really contributed to the enhancement of the cooperation between EU institutions and

national parliaments.

 The European Commission has been the primary interlocutor of parliaments in

this framework, although the European Parliament also receives and follows-up on

national parliaments’ reasoned opinions.

 Despite positive developments visible both at EU and at national level, important

challenges remain in particular in relation to the limited scope offered by the EWS

for more political engagement. As illustrated by the success of the Political Dialogue

with the European Commission and by the recent ”green card initiative”, parliaments

are eager to play a role in EU affairs, but they want this role to be positive rather

than negative as currently foreseen by the Treaties.

1. INTRODUCTION

Like the Treaty establishing a Constitution for Europe (Constitutional Treaty) before it, the

Lisbon Treaty has entrusted national parliaments (NPs) with the responsibility to

monitor the respect of the principle of subsidiarity in new EU legislative proposals

adopted in areas of non-exclusive EU competence (so-called Early Warning System (EWS)).

To this end, since 2009, all legislative proposals are forwarded to NPs by the European Union

(EU) Institutions directly (alongside other planification and consultation documents such as

the Commission’s Annual Work Programme or green and white papers).

Once a legislative

proposal has been made available in all official languages, NPs have eight weeks to adopt and

forward their “reasoned opinions” to the Presidents of the European Parliament (EP), the

Council and the Commission if they consider that the proposal in question breaches the

principle of subsidiarity. Each NP has two votes whereby bicameral NPs attributes one vote to

each of their chambers. Once the eight-week period has passed – a period during which the

proposal cannot be placed on the Council’s agenda except in cases of emergency –, if the

number of reasoned opinions amounts to 1/3 of the total number of votes (1/4 in the Area of

Freedom, Security and Justice), the EWS is activated. EWS activation is the so-called “yellow

card”. Under the ordinary legislative procedure, if the number of reasoned opinions issued

equals half the total number of votes available, an “orange card” is triggered; this has not yet

happened to date. Once a card has been shown, the institution author of the proposal – most

commonly the Commission – must review it. The Commission may then decide to maintain,

amend or withdraw the proposal and must justify its decision. The Union’s legislators are also

involved in the instance of an orange card.

EWS has only been activated in three occasions since the entry into force of the Lisbon Treaty

seven years ago.

Therefore, it is important to reflect on the potential this principle has

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represented so far and represents today for the enhancement of the relationship between EU

Institutions and NPs. This is particularly the case because this system has frequently been

deemed inefficient

and it is therefore necessary to assess whether this statement holds true.

Brexit and the 60

anniversary of the signature of the Rome Treaty also represent a

momentum for deep(er) reflection as to the future of Europe and the potential NPs may

represent to bridge the gap between the EU and its citizens.

2. THE RELATIONSHIP BETWEEN EU INSTITUTIONS AND NPs IN A

HISTORICAL PERSPECTIVE

For several decades, the Treaties did not foresee any relationship between NPs and

the Institutions of the European Communities (EC) (or later with those of the EU).

NPs were first mentioned in the Treaty of Maastricht as the object of a non-legally binding

declaration annexed to the Treaties

which foresaw that contacts and exchanges of

information between NPs and the EP should be enhanced while also urging national

governments to ensure that NPs receive Commission proposals in good time. With the

approval of the Amsterdam Treaty NPs’ importance was enhanced, both because they became

the object of a protocol

– which has the same value as the treaties – and because certain

guarantees were provided to them. For instance, sufficient time for proper scrutiny was

secured, since only after a period of six weeks could a legislative proposal be tabled on the

Council’s agenda. The real “revolution” in this domain however took place with the entry into

force of the Lisbon Treaty when the responsibility to “contribute actively to the good

functioning of the Union” (art. 12 TEU) was attributed to NPs alongside certain rights of

information and of participation. The most visible and frequently used right is the control of

the respect of the principle of subsidiarity.

Hence, until the Lisbon Treaty NPs depended on national legal provisions (or customs)

to be involved in EU affairs. Their capacities to control their governments and actively

participate largely varied,

ranging from some having the capacity to mandate their executive

representatives in the Council to others being barely informed. In fact, it appears that proper

information remained largely an issue until the Lisbon Treaty introduced the direct

transmission of legislative proposals and planification documents, as information was often

insufficient or could intervene too late. Furthermore, even where NPs had been secured rights

of participation in EU affairs at national level such as in the German Bundestag, they were

not always very keen on using them; sometimes MPs belonging to a political majority

preferred using informal and hence less visible contacts with the government to avoid showing

potential diverging opinions.

There are several reasons for this original lack of mention of NPs in the Treaties.

First, the original European Parliamentary Assembly was composed of delegates designated

by NPs among their members. Arguably, the Assembly had only limited, predominantly

consultative, powers but its composition of members of national parliaments (MPs), at least

in theory,

guaranteed a link between national and European levels of governance. Secondly,

and perhaps most importantly, the EC was conceived as a classical international organization.

This resulted in EC affairs being predominantly assimilated to foreign affairs within

parliaments, and this assimilation lasted for several decades in certain cases. This is, for

example, illustrated by the fact that EC affairs were long under the remit of the Foreign Affairs

committees, and even when and where a specific EC committee was created it remained

dependent on the Foreign Affairs Committee in some occasions. Beyond this assimilation of

EC affairs to foreign affairs, a strong importance was given to the output of the integration

process, i.e. peace and wealth, and less to democratic legitimacy. Citizens themselves were

largely off the radar during several decades as the integration process largely moved forward

on the basis of decisions made by political elites.

In the post-war period, there existed a

general and permissive consensus in favour of the integration process meaning that the

question of democratic legitimacy was not a real issue for several decades. Democratic

legitimacy became an issue with the accession of less pro-integration Member States in the

1970s; coupled with the emergence of an economic recession in Europe at approximately the

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same time. The question of the EC’s democratic legitimacy and the existing “democratic

deficit”

also became more acute as more competences were transferred to the supranational

institutions and as qualified-majority voting progressively replaced unanimity.

3. CONTEXT AND RATIONALE FOR THE INTRODUCTION OF THE

PRINCIPLE OF SUBSIDIARITY IN 1992

The introduction of the principle of subsidiarity should be seen in this broader context of

the evolution of the European integration process. This principle was already included in the

Single European Act of 1986 but solely in reference to the environment policy (art. 130R).

With the approval of the Maastricht Treaty, it was upgraded to the status of general

principle of EU law and thus became liable for judicial review by the European Court of

Justice.

The upgrade of this principle can be traced back to the growing importance of the issue of the

EC’s democratic deficit. The EC was deemed by some to attribute too many powers to itself

or to neglect the federal entities existing in certain Member States. Therefore, the principle

of subsidiarity was introduced in the Treaties in 1992 in order to provide remedy to both

sources of dissatisfaction as expressed at the time in particular by the United Kingdom and

the German Länder respectively. It was conceived as a useful tool to provide remedy to the

absence of clear division of competences as well as to the lack of definition between shared

and exclusive competences at European level.

It could serve both to the detriment or to the

advantage of the Union’s actions and it was sufficiently broad to reconcile diverging views. It

was even said to have been the “word that saved Maastricht”.

Additionally, the then

Commission President, Jacques Delors, appears to have been a fervent advocate of this

principle himself.

However, at the time no specific link between subsidiarity and parliaments was made

and it would have been hard to predict that this principle would gain the importance it has

now acquired within the EU. In fact, there was a certain paradox in the introduction of the

principle of subsidiarity, applicable only in areas of shared competence, at a time when there

was no clear definition of the different types of competences. This does not mean that the

principle of subsidiarity was not taken into consideration by the Commission, but the absence

of the definition of the exclusive competences hindered that all the objectives that had

motivated the introduction of the principle could be achieved.

A few months after the approval of the Maastricht Treaty, the Council provided some guidance

as to how the principle should be applied.

For instance, it considered that applying this

principle now contained in Article 3b of the EC Treaty would amount to asking the question:

“Should the Community act?”. It further spelt out the obligation for all EC Institutions to

respect it and also insisted on the dual nature of this “dynamic principle” which could (and

still can) serve both to expand and to limit the EC’s (now EU’s) capacities to act in domains

of shared competence. An interinstitutional agreement followed.

These criteria were later

laid down in a new protocol on subsidiarity annexed to the Amsterdam Treaty:

at the time

both this principle and NPs became the object of protocols. Although the “EU added value”

and the “sufficiency” tests the Amsterdam protocol had introduced were not included in the

Lisbon Treaty protocol, the Commission continues to use them and has encouraged NPs to do

so as well.

4. SUBSIDIARITY AS A MEANS TO STRENGTHEN THE RELATIONSHIP

BETWEEN EU INSTITUTIONS AND NPs

As stated above, in attributing the task to monitor subsidiarity to parliaments, the

Constitutional Treaty and later the Lisbon Treaty have represented a dramatic

change in NPs’ role within the EU. While it is true that the principle existed and some NPs,

such as the UK House of Commons, had already started monitoring it before the introduction

of the EWS, in other chambers it was not scrutinised. In fact, some NPs, such as the Spanish

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parliament, did not regularly monitor EU legislative proposals at all: even if the added value

of the EWS can be subject to debate, it is certainly true that its introduction has

contributed to setting EU affairs on NPs’ agendas in providing a reason for them to

conduct systematic scrutiny.

From the Constitutional Treaty to the Lisbon Treaty

After the Dutch and the French negative referenda, Commission President Barroso launched

its “Political Dialogue” initiative in May 2006;

note that this Political Dialogue has both

a written dimension (NPs submit their contributions) and a non-written one (in the form of

visits to NPs by Commissioners, for instance). The Commission “wishe[d] to transmit directly

all new proposals and consultation papers to national parliaments, inviting them to react so

as to improve the process of policy formulation”. The Commission also committed, on its own

initiative, to provide an answer to each and every single one of NPs’ submissions within three

months. No official obligation exists on the Commission since this initiative is merely informal.

After President Barroso’s announcement, the European Council subsequently set the emphasis

on the principles of subsidiarity and of proportionality in asking the Commission to pay

particular attention to NPs’ comments, in general and on those topics in particular.

The

practice that developed around this initiative has paved the way towards establishing the

relationships existing today between the Commission and NPs. The Political Dialogue was

immediately a huge success and, as shown by the figures included Table 1, it has been

used much more frequently than the EWS. This is, in particular, due to the fact that the

Political Dialogue is much more open than the EWS is; in its framework, NPs can submit

their contributions to the Commission at any point in time and are therefore not bound by the

eight-week limit. These contributions can address any issue at all whereas the reasoned

opinions addressed in the framework of the EWS are strictly limited to subsidiarity breaches.

In the framework of the Conference of Parliamentary Committees for Union Affairs of

Parliaments of the European Union (COSAC), eight pilot-tests were also conducted pre-Lisbon

to test the EWS and to help NPs adapt their procedures in preparation of the entry into force

of the Lisbon Treaty.

Tendencies in the post-Lisbon practice

The period that has followed the entry into force of the Lisbon Treaty has been characterised

by the co-existence of the Treaty-based EWS and the informal Political Dialogue

between the Commission and NPs. President Barroso decided to maintain the informal Policy

Dialogue, even though the EWS had been formally introduced by the Lisbon Treaty.

This

decision should be welcomed as the Political Dialogue is a good complement to the EWS:

it broadens the scope of the exchanges between NPs and EU institutions and, in so doing,

arguably makes participation more (politically) attractive to MPs.

The vast majority of opinions transmitted by NPs have been contributions, i.e.

opinions unrelated to a breach of subsidiarity (between 86.8 and 97.7% of the total number

of opinions were resolutions over the period 2010-2015 – Table 1). Furthermore, the number

of contributions and reasoned opinions has varied over time quite drastically. The number of

reasoned opinions increased progressively during the first years after the entry into force of

the Lisbon Treaty and peaked in 2013 at 88. This figure has since been decreasing: in 2015,

only 8 reasoned opinions were transmitted to the Commission. This evolution can be linked

back to the organisation of elections to the EP in 2014 when consequently a renewal of the

Commission also took place. President Juncker’s decision to make fewer legislative proposals

has also mathematically influenced the number of reasoned opinions.

As to the contributions, they increased sharply during the first years that followed

the entry into force of the Lisbon Treaty but decreased again in 2014 and 2015. This

evolution will have to be monitored in the future to determine whether this is a long-lasting

tendency or whether this decrease was only accidental. It should additionally be kept in mind

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that the Political Dialogue, in its written dimension, embraces many different aspects. NPs

can for instance submit their views on the Commission’s Annual Work Programme or on non-

legislative proposals and green papers. In 2015, 11 out of the 19 Commission documents that

received the most opinions were non-legislative documents.

This change has been

encouraged by the Commission and could compensate for the decrease in the number of

legislative proposals tabled by the Commission.

Another recent development should also be monitored as it might have an influence on the

frequency of these written exchanges in the long run: As stated above, the Political Dialogue

is not limited to its written dimension as it also encompasses the participation of

Commissioners in interparliamentary conferences or Commissioners’ visits to NPs. When it

took office in 2014, President Juncker expressed its willingness to cooperate more closely with

NPs. This is visible in the creation of the figure of Vice-president for Better Regulation,

Interinstitutional Relations, the Rule of Law and the Charter of Fundamental Rights in charge

of, among others, “Coordinating the work on better regulation within the Commission,

ensuring that every proposal respects the principles of subsidiarity and proportionality, which

are at the heart of the Commission's work” and of “Overseeing the European Commission's

relations with the other European institutions and promoting a new partnership with national

Parliaments”.

Commission President Juncker’s commitment is also visible in the important increase in the

number of visits and meetings between Commissioners and NPs. In 2013, Maroš Šefčovič,

Vice-President and Commissioner for inter-institutional relations and administration made

eight visits to NPs and he received visits from another eight of them in Brussels

. In

comparison in 2015, Commissioners paid over 200 visits to NPs.

This tendency was

confirmed by 11 out of 39 parliaments/chambers which considered that the number of visits

by Commissioners had “significantly” increased in October 2016 while another 16 of them

judged that it had “somewhat” done so.

It remains to be seen if over time these regular

visits will not replace (part of) the written exchanges, especially since visits allow for a

personal direct exchange and dialogue while written submissions imply that NPs have to wait

to receive an answer which, in addition, in many occasions, has given little satisfaction to

them (see challenges below).

Table 1 : NPs’ reasoned opinions and contributions (2006-2015)

Reasoned opinions

Contributions

Percentage reasoned

opinions

2006

2007

168

2008

200

2009

250

2010

353

8.8

2011

558

10.3

2012

593

10.5

2013

533

14.2

2014

485

4.1

2015

342

2.3

Source: Own compilation on the basis of the European Commission’s Annual reports on relations with national

parliaments

For what concerns the three yellow cards triggered thus far,

both their individual

circumstances and their outcome differed. A brief summary will be provided here to allow for

their consideration in the assessment of the current and future perspectives of the EWS below.

The first yellow card concerned the 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 (Monti II proposal). It was triggered in 2012 following the

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adoption of 12 reasoned opinions amounting to a total of 19 votes. The Commission

subsequently decided to withdraw its proposal in a standardized letter it sent to all parliaments

that found a subsidiarity breach, despite the fact that in its view there was no breach. Since

the proposal had been adopted on the basis of the flexibility clause (art. 352 TFEU), unanimity

was required in the Council and it appeared that the proposal would never be adopted. In

fact, the question of the legal basis was critical in this case as it was doubtful whether the

Union even had competence to act. Should this not have been the case then there would not

even have been any question of subsidiarity. Beyond this, the Commission had failed to justify

adequately why the proposal was in line with the principle of subsidiarity.

As regards the second yellow card triggered in 2013 – also under the presidency of J.-M.

Barroso – it was issued on the proposal for the creation of the European Public Prosecutor’s

Office (EPPO). 13 parliaments/chambers amounting to 18 votes considered that the principle

of subsidiarity was not respected but in that occasion, the Commission decided to maintain

its proposal in identical terms. It did this time provide NPs with a more detailed and timelier

answer as it announced its decision only three weeks after the yellow card had been triggered.

This time around the Commission also provided individual answers for all the arguments that

did not regard subsidiarity some months afterwards.

The legal basis for this proposal was

clearer than it had been in the case of the first yellow card: since the entry into force of the

Lisbon Treaty, Article 86 TEU allows the Council to establish an EPPO from Eurojust. Like the

flexibility clause used as a basis for the Monti II proposal, this legal basis was also particular,

as it provides for the possibility to establish an EPPO by means of enhanced cooperation if

Member States cannot agree. As a consequence, even though some Member States had

expressed their disagreement with the proposal in their reasoned opinions, it could not be

deemed to fail only on these grounds. The existence of this possibility of enhanced cooperation

could have contributed to the Commission’s decision to maintain its proposal in identical

terms. In this second case it is also interesting to note that the breach of subsidiarity was

linked again to the lack of proper justification on the side of the Commission.

Finally, the third yellow card was issued on a topic related to that of the first card as it

concerned the question of posted workers. Even if this proposal was maintained identically –

like the EPPO proposal before it –, it differs from the previous cards in several regards: it was

issued under the Juncker Commission in 2016, and most importantly it has evidenced a strong

divide between Western on the one hand, and Central and Eastern European Member States

on the other. All but one of the 14 reasoned opinions issued were adopted by the parliaments

of Central and Eastern European Member States.

In this case as well it is true that the

Commission failed to properly justify why the proposal was in line with the principle of

subsidiarity but other than that there was no issue of subsidiarity so that legally the

Commission was right to maintain its proposal without modifying it, even if this could be

disappointing for NPs. It appears that actually in this case what these Central and Eastern

European Member States parliaments wanted to show was rather their disagreement with the

content of the proposal itself rather than its breach of subsidiarity.

Opportunities and challenges

Over the past seven years, the practice of the control of the respect of the principle of

subsidiarity by NPs has evidenced certain opportunities and challenges in its capacity to

enhance the relations between NPs and EU institutions.

Regarding the opportunities for NPs as “European actors”, the biggest achievement has

been that the EWS, and the Political Dialogue since 2006, have allowed for the establishment

of a direct and constant exchange between NPs and EU institutions. In this regard, the

Commission plays the biggest role but the EP’s potential should not be neglected. In fact, the

EP was even the instigator of the introduction of the principle in the 1980s: the EP proposed

to include a provision on it in the draft TEU in 1984

and later on reaffirmed its support for

the principle of subsidiarity in several resolutions.

In the framework of the EWS, it also

receives all reasoned opinions and has established a detailed procedure for the adequate

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treatment and follow-up of parliamentary reasoned opinions and contributions:

all of them

are duly examined and the reasoned opinions are even translated. Moreover, these exchanges

also take place in a context in which the initiatives for increased interparliamentary

cooperation between the EP and NPs are always more numerous.

The existence of the EWS in itself also brings about some benefits for NPs: Knowing

that NPs will control its legislative proposals, the Commission will be less inclined to not

respect the principle of subsidiarity in the first place and will limit NPs’ chances to be unduly

deprived of the exercise of their competences. With this in mind, it would be misleading to

judge the EWS’s efficiency solely on the number of yellow cards triggered as effectiveness

should arguably rather be measured in the absence of frequent system activations.

The EWS

is also a means for NPs to gain visibility and make their concerns more salient. When

NPs issue a yellow card or transmit several opinions to the Commission, NPs have a chance

to be more visible in the European arena. This usage of the EWS is perhaps not always fully

in line with its purpose – see the case of the third yellow card – but on the other hand it has

allowed them to express their opinion and become active participants in EU affairs. The EWS

furthermore provides NPs with a motive to enhance interparliamentary cooperation

among themselves. The EWS is a collective instrument and NPs depend on one another for

their reasoned opinions to attain the yellow-card threshold, resulting in a potential incentive

for NPs to work with one another. This positive aspect should not be overestimated however

since some chambers/parliament do not generally consider the EWS to be an efficient

instrument (e.g. Finland) and where NPs do coordinate their positions, they in some occasions

largely follow their governments’ position as was illustrated in the case of the third yellow

card.

In addition to these benefits for NPs as European actors, the EWS has contributed to enhance

NPs’ role in EU affairs in their MS. First and foremost, the need to control the respect of

the principle of subsidiarity has led certain NPs to start conducting systematic scrutiny of

EU documents. This has also contributed to the establishment or the reinforcement of

systematic exchanges with their governments.

Despite these positive developments, important challenges remain. These are both

inherent to the EWS itself and to the way in which the EU Institutions have been responding

to its introduction.First, the EWS’s scope is narrow since it only encompasses the principle

of subsidiarity and does not formally allow NPs to express their opinions on other elements,

even the principle of proportionality which is also contained in the same protocol cannot be

the object of NPs’ reasoned opinions. As detailed below, this is one of the elements that

requires change in the future: NPs want to play a more active role in EU affairs, subsidiarity

is not politically as attractive to MPs as comments on content are, and the principle of

subsidiarity is in any case interpreted in different ways by NPs. The problem of the lack of

(common) definition of the principle of subsidiarity has indeed surfaced, resulting in some

NPs' attempts to develop a “voluntary, non-binding set of best practices and guidelines on

the subsidiarity check”.

NPs, in assessing the two aspects that compound the subsidiarity

check – whether an action cannot be sufficiently achieved at Member State level while being

better achieved at EU level – are likely to come to different conclusions based on elements

such as the size of their Member State or its administrative capacities for example or simply

because some of them include other elements, such as proportionality, whereas others do

not. Even if the Lisbon Treaty has now specifically provided NPs with the capacity to bring an

action for annulment before the Court of Justice of the European Union (CJEU), so far they

have not used this avenue and the CJEU has not clarified the content of the principle either.

Another issue that has arisen is that of the time span reserved for the subsidiarity check.

The Lisbon Treaty now reserves eight weeks to this end (which is already more than the

Constitutional Treaty had since it only foresaw a period of six weeks) but this has been

deemed to be too short a period. Procedures for the conduct of the subsidiarity scrutiny differ

among NPs with some of them providing for the involvement of more than one parliamentary

committee and some also requiring the approval of the plenary. Bearing this in mind, eight

weeks may indeed be short, especially because the period of session at national level may

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differ from the European one.

It is true that NPs should in any case start their scrutiny early

and not wait until the proposals are actually forwarded to them to start their scrutiny. NPs

can do this, for example, by participating during the consultation phase or monitoring the

Commission’s Annual Work Programme and the Presidencies’ programme. However,

especially in the Member States in which regional parliaments with legislative competences

may also be consulted,

respecting the eight-week deadline could be challenging. This brings

to the fore the question of the moment at which the subsidiarity check intervenes; it is

to a certain extent too late for NPs to truly influence the content of the proposal which, at the

same time, will still be modified during the legislative procedure while these modifications

could have a bearing on the outcome of initial subsidiarity assessment.

Due to the way in which the EWS functions, NPs are also highly dependent on each other.

In other words, one isolated reasoned opinion will be treated under the Political Dialogue

initiative in whose framework the Commission has the obligations it has committed itself to

as these exchanges take place outside of the Treaty framework. If NPs want their voice to be

heard and the Commission to be under the obligation to review its proposal, they must reach

the thresholds required to trigger a yellow card, and cooperate in some way to be successful

in this endeavour in the short time span of eight weeks. NPs have to invest important

resources to keep up with this demanding timeline with no guarantee that a yellow card will

be triggered and even if it is, they are not sure whether their opinions will have any impact

as illustrated by the second and the third yellow cards. One issue for parliaments is that the

Commission is free to decide what to do. There may be little doubt that the Commission

is right to maintain its proposal from a legal point of view but it remains that this outcome

does not incentivise NPs to keep performing their subsidiarity check. The same applies to the

quality of the answers provided by the Commission: they have often been deemed too

short, standardised and intervening too late.

The Juncker Commission has committed to

improve this situation and revised the structure of the answers it provides. Yet it remains to

be seen whether this will be satisfactory in NPs’ opinions.

This is all the more important as,

at present, imbalances exist in the level of participation of the different chambers:

Some are very active whereas others barely send anything.

5. THE FUTURE OF THE EARLY WARNING SYSTEM

It results from the preceding analysis that the principle of subsidiarity and in particular the

EWS have indeed contributed to fostering closer relations between NPs and EU institutions.

However, some shortcomings have become apparent in the post-Lisbon era which are likely

to impede the development of closer ties if they remain unsolved.

The question of the definition of the principle of subsidiarity appears to be one of the

most pressing issues as a common understanding would not only make NPs’ task lighter,

which is particularly important in the light of the shortage of time and resources NPs suffer

from. A definition would also make the Commission’s role easier at the time of classifying,

assessing and responding to all reasoned opinions received. In this regard, it could also be

useful for NPs to adopt a common format for their reasoned opinions. A broader definition

of the principle which should also encompass proportionality or the legal basis might also be

envisaged.

Perhaps this is a satisfactory solution in the short term since it could make NPs’

better heard at EU level and all their opinions related to the content of a proposal would not

automatically be labelled as contributions and treated under the Political Dialogue initiative.

However, such broad(er) interpretation of the principle of subsidiarity also entails certain

problems. For instance, there is little doubt that the CJEU should continue to apply the strict

definition contained in the Treaties if it were to assess the respect of the principle of

subsidiarity. Furthermore, such an evolution would not change the fact that certain guidelines

need to be elaborated so that NPs judge on the same basis. On the contrary, this need would

become even more acute if the principle were to become broader.

As to concerns about the timeframe and the fact that all reasoned opinions are treated

as contributions if the thresholds necessary for a yellow card fails to be triggered,

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in the absence of any Treaty reform the Commission may not formally accept any extension

of the eight-week period or decide on the activation of the EWS where the thresholds have

not been reached. It would, however, be desirable for the Commission – and the EP alike –

to pay specific attention to the proposals that receive numerous reasoned opinions and to

provide them with some visibility. The Commission should continue to enhance the level of

detail of its annual reports on relations with NPs, in particular regarding the impact reasoned

opinions and opinions have had. It should equally keep improving the quality and

speediness of the answers it provides. It is furthermore necessary that more attention

is devoted to the justification enclosed in the legislative proposals.

The EP has already announced that its Connect database will be made available to all

and

this will usefully complement the already available monthly “State of Play” notes. Perhaps the

introduction of a dedicated annual report stating how it has followed up on reasoned

opinions and contributions could be useful to NPs – and citizens – in identifying the impact

of these opinions.

Initiatives currently under discussion at present are the “red card” and the “green card”.

The red card arose, among others, in the pre-Brexit discussions but it would conversely not

have provided a remedy to the challenges previously identified. The threshold for a red card

to be triggered would have been even higher than the threshold for yellow and orange cards,

hence potentially even more unattainable. The Council would have been responsible for the

treatment of the reasoned opinions alone, and it would have had to “discontinue the

consideration of the draft legislative act in question unless the draft is amended to

accommodate the concerns expressed in the reasoned opinions”.

At first glance, this

procedure seems very protective of NPs’ opinions but it would have set the Council in a difficult

position since, as we know, the “concerns expressed in the reasoned opinions” are not always

strictly related to subsidiarity.

NPs themselves have proposed the introduction of a pro-active green card. Several

understandings as to the form this initiative should take co-exist,

but a consensus appears

to have emerged around the possibility that it should provide NPs with the ability to invite the

Commission to adopt a legislative proposal (this right would be similar to the one held by the

EP on the basis of art. 225 TFEU). Even in the absence of any formalisation in the Treaties,

this initiative should be encouraged (provided perhaps that certain thresholds are defined so

that the Commission is not suddenly flooded by suggestions) since it would provide NPs with

a possibility to influence the direction in which the EU is developing in setting the EU’s

agenda.

6. CONCLUSION

The principle of subsidiarity, and most importantly the introduction of the EWS, have certainly

contributed to the enhancement of relations between NPs and EU institutions. However, this

avenue for multi-level cooperation appears to be too narrow to satisfy NPs’ thirst for being

better involved in EU affairs. This is why the positive developments observed since the EWS

has started to function cannot be detached from the broader context, and in particular from

the added value ensured by the Political Dialogue in its written and non-written dimensions.

These instruments should be praised since they have undoubtedly contributed to turning NPs

into true European institutions and have established a constant dialogue between NPs and

the Commission.Whether these positive effects will continue to endure in the absence of

reforms is unclear. Reforms should probably be implemented to make active participation

more attractive to MPs; one of these reforms could be the implementation of an additional

“green card” initiative, another reform could be enhanced attention paid by the Commission

where a significant number of reasoned opinions have been issued even when these opinions

are received slightly after the deadline.

Policy Department C: Citizens' Rights and Constitutional Affairs

10 PE 583 131

These changes and those previously mentioned would encourage NPs to remain active

participants in the EWS (and the broader Political Dialogue) and hopefully contribute to

making it attractive to those who do not engage in this system at present. However, these

solutions are only partial solutions. They will only satisfy NPs’ thirst for a more active role

in EU affairs to a certain extent as it seems that the (giant) step taken by the Lisbon Treaty

is generally insufficient. The “Treaty of parliaments” as the Lisbon Treaty has been nicknamed

has turned NPs into “European institutions” deemed to “contribute to the good functioning of

the Union” (Art. 12 TEU). But the instruments it has attributed to them to this end seem

inappropriate and have little attraction to MPs. The latter is because MPs – especially in pro-

EU Member States – do not want to be circumscribed to a negative role. The

prerogatives NPs have received in the Treaty are largely negative or of control: they can delay

the adoption of a proposal that does not respect the principle of subsidiarity and they can

veto the use of certain passerelle clauses and so forth.

Subsidiarity check is also too narrow and of limited political attractiveness. MPs may

try and gain influence by controlling their governments. As a matter of fact, for these and

other reasons, NPs’ main focus in EU affairs appears to be (still) set on their national

government, even if NPs then eventually depend on their national constitutional arrangements

and on whether their governments can themselves be heard in Brussels.

As NPs, or some of them at least, appear to be eager for a more significant role within the EU

integration process, this opportunity should be praised in the future to try and enhance the

EU’s democratic legitimacy. In this context, the question of the need for a (re-)establishment

of an arena for their collective representation at EU level should certainly be posed.

Art. 12 TEU and Protocol no 1 and 2 annexed to the Treaties.

Art. 1 and 2 Protocol no 1.

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, COM (2012) 130; Proposal for a Council Regulation

on the European Public Prosecutor's Office, COM(2013) 534; Proposal for a Directive of the European Parliament and

of the Council amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996

concerning the posting of workers in the framework of the provision of services, COM (2016) 128 final.

Among others: A. Cygan, ‘National parliaments within the EU polity - no longer losers but hardly victorious’, ERA

Forum, 2011, 12, 517-533. p. 525, P. Kiiver, ‘The Early-Warning System for the Principle of Subsidiarity: The National

Parliament as a Conseil d’État for Europe’, European Law Review, 2011, 36(1), 100 and T. Raunio, ‘Destined for

Irrelevance? Subsidiarity Control by National Parliaments’, Real Instituto Elcano Working Paper 36/2010.

Declaration no 13 on the role of national parliaments.

Protocol no 9 on the role of national parliaments in the European Union.

See on NPs’ role in EU affairs during the first decades of the integration process: A. Maurer and W. Wessels (ed),

National parliaments on their ways to Europe: Losers or latecomers?, Nomos, Baden-Baden, 2001.

K. Auel, ‘The Europeanisation of the German Bundestag: Institutional Change and Informal Adaptation’, German

politics, 2006, 15(3), 249-268.

It has been shown that, de facto, the level of diffusion of the knowledge gained by the delegated MPs on EU affairs

was only limitedly spread among the rest of MPs back in the capitals. In the French National assembly, for instance,

the MPs who were also members of the European Parliamentary Assembly had to present an annual report on the

main European questions to the Foreign affairs committee. Yet in practice they only complied with this obligation

after 1970. E. Saulnier, La participation des parlements français et britannique aux Communautés et à l’Union

européenne, LGDJ, Paris, 2002, 283.

K. Featherstone, ‘Jean Monnet and the ‘Democratic deficit’ in the European Union’, Journal of Common Market

Studies, 1994, 32(2), 149-170.

The expression “democratic deficit” was first used by David Marquand: D. Marquand, Parliament for Europe, John

Cape, London, 1979, 64.

P. Craig, ‘Subsidiarity: A Political and Legal Analysis’, Journal of Common Market Studies, 2012, 50(1), 72-87, 73.

European Independent newspaper as quoted by D.Z. Cass, 'The Word That Saved Maastricht? The Principle of

Subsidiarity and the Division of Powers within the European Community', Common Market Law Review, 1992, 29(6),

1107-1136, 1136.

On this context: D. Fromage, ‘Subsidiarity: from a general principle to an instrument for the improvement of

democratic legitimacy in Lisbon’ in M. de Visser and A. P. van der Mei (Ed.) The Treaty on European Union 1993-

2013: Reflections from Maastricht, Antwerp, Intersentia, 139-156.

Annex 1 to the Conclusions of the Council Summit of Edinburgh of 12 December 1992.

Interinstitutional Agreement of 25 October 1993 on the procedures for implementing the principle of subsidiarity

and resolution of the European Parliament of 13 May 1997.

Protocol no 30 on the application of the principles of subsidiarity and proportionality.

European Commission, Report on Subsidiarity and Proportionality 2010, 2011, 2.

Subsidiarity as a means to enhance cooperation between EU Institutions and National Parliaments

DISCLAIMER

The content of this document is the sole responsibility of the author and any opinions expressed therein do not necessarily represent the

official position of the European Parliament. It is addressed to Members and staff of the EP for their parliamentary work. Reproduction and

translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior

notice and sent a copy.

This document is available at: www.europarl.europa.eu/studies

Contact: [email protected]

Manuscript completed in 2017

PE 583 131

CATALOGUE QA-01-17-174-EN-C (paper)

CATALOGUE: QA-01-17-174-EN-N (pdf)

ISBN: 978-92-846-0732-7 (paper)

ISBN: 978-92-846-0733-4 (pdf)

doi:10.2861/063576 (paper)

doi: 10.2861/60702 (pdf)

Communication from the Commission to the European Council of 10 May 2006, A citizens’ agenda delivering results

for Europe, COM(2006) 211 final.

Presidency Conclusions, 15-16 June 2006, 14.

On NPs’ reaction to the pilot-tests: COSAC, 7

bi-annual report, 6f.

Letter by Commission President Barroso and Vice President Wallström of 1 December 2009.

European Commission, Annual report 2015 on relations with national parliaments, 2016, 3.

European Commission, Frans Timmermans. https://ec.europa.eu/commission/2014-2019/timmermans_en.

European Commission, Annual report on relations with national parliaments 2014, 2015, 8-9.

European Commission, Annual report on relations with national parliaments 2015, 2016, 11.

COSAC, 26

bi-annual report, 2016, 22.

Also the first four months of 2007 were counted.

See on the first yellow card: F. Fabbrini and K. Granat, ‘“Yellow Card, but not Foul”: The Role of the National

Parliaments under the Subsidiarity Protocol and the Commission Proposal for an EU Regulation on the Right to Strike’

Common Market Law Review, 2013, 50(1) 115-144, D. Fromage, Les Parlements dans l’Union Européenne après le

Traité de Lisbonne. La participation des parlements allemands, britanniques, espagnols français et italiens,

L’Harmattan, Paris, 2015, 359f and M. Goldoni, ‘The Early Warning System and the Monti II Regulation: The Case

for a Political Interpretation’, European Constitutional Law Review, 2014, 10(1), 90-108 ; on the second: C. Fasone,

‘Parlamenti nazionali e controllo di sussidiarietà: il secondo “cartellino giallo” sull’istituzione della procura europea’,

Quaderni costituzionali, 2014, 1, 165-167, D. Fromage, ‘The Second Yellow Card on the EPPO Proposal: An

Encouraging Development for Member States Parliaments?’, Yearbook of European Law, 2016, 35(1), 5-27; and on

the third: D. Jancic, ‘EU Law's Grand Scheme on National Parliaments: The Third Yellow Card on Posted Workers and

the Way Forward’ in id. (ed.), National Parliaments after the Lisbon Treaty and the Euro Crisis: Resilience or

Resignation?, OUP, Oxford, 2017, 299-312 and N. Lupo, ‘Le molteplici funzioni dell’early warning system, alla luce

del terzo “cartellino giallo” sui lavoratori distaccati’, Astrid Rassegna 19/2016.

Note that the issue of the need for the Commission to respect its duty of proper justification is also important to

the EP. Among others: European Parliament resolution of 13 September 2012 on the 18th report on Better legislation

- Application of the principles of subsidiarity and proportionality, 2010, 4.

It is noteworthy that contrary to common practice, in this occasion a dialogue could be established between the

Commission and NPs with some of them submitting a second or even a third opinion. Further on this: D. Fromage,

‘The Second Yellow Card on the EPPO Proposal: An Encouraging Development for Member States Parliaments?’ op.cit.

This obligation is nevertheless clearly anchored in art. 5 protocol no 2.

The exception here is Denmark which adopted a reasoned opinion for motives radically different from those of the

Central and Eastern European Parliaments.

Art. 12-2 Draft Treaty establishing the European Union, 14 February 1984.

For instance, Resolutions of 23 November and 14 December 1989, 12 July and 21 November 1990 and 18 May

1995.

Art. 42 European Parliament rules of procedure and

G. Barrett, ‘Monti II: The subsidiarity review process comes of age...or then again maybe it doesn't’, Maastricht

Journal of European and Comparative law, 2012, 19(4), 595-600, 599.

Information Note in relation to the COSAC Working Group 30 October 2015, Luxembourg "Yellow card" procedure

available at: http://www.cosac.eu/54-luxembourg-2015/cosac-working-group-30-october-2015/ .

This notwithstanding it is interesting to note that Advocate General Kokott has recently advocated a better

justification by the Commission (Opinion of Advocate General Kokott delivered on 23 December 2015, case (C-

547/14) Philip Morris Brands SARL, par. 188). See on the judicial review of subsidiarity: G. A. Moens and J. Trone,

‘The principle of subsidiarity in EU judicial and legislative practice: panacea or placebo?’, Journal of legislation, 2015,

41(1), 65.-102

Actually NPs have recently advocated both for the eight-week period to be extended to twelve weeks and for the

Christmas period to be excluded, like the month of August already does not count towards the eight-week deadline.

Information Note in relation to the COSAC Working Group 30 October 2015, op. cit.

Art. 6 Protocol no 2 specifically establishes that regional parliaments may be consulted by their respective NP

where appropriate.

COSAC, 24

bi-annual report, 2015, 17.

Some NPs observed a slight improvement under the Barroso Commission. COSAC, 26

bi-annual report 2016, 23.

Actually, the Dutch Tweede Kamer already considers the respect of the principle of proportionality and the legal

basis in its assessment of the respect of the principle of subsidiarity. COSAC, 24

bi-annual report, 2015, 18.

European Parliament, Annual report 2014-2015 on relations between the European Parliament and national

parliaments under the Lisbon Treaty, 2016, 26.

Draft Decision of the Heads of State or Government, meeting within the European Council, concerning a New

Settlement for the United Kingdom within the European Union, 2.2.2016.

COSAC, 23

bi-annual report, 2015, 31f.

C. Fasone and D. Fromage, ‘From veto players to agenda-setters? National parliaments and their “green card” to

the European Commission’, Maastricht Journal of European and Comparative law, 2016, 23(2), 294-316.