103. The principles of subsidiarity and proportionality
were incorporated into Community law through the Maastricht Treaty
of 1992, which gave effect to the following in respect of shared
'In areas which do not fall within its exclusive
competence, the Community shall take action, in accordance with
the principle of subsidiarity, only if and insofar as the objectives
of the proposed action cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale or effects
of the proposed action, be better achieved by the Community.
'Any action by the Community shall not go beyond
what is necessary to achieve the objectives of this Treaty.'
104. A Protocol to the Treaty of Amsterdam of 1997
provided further guidance:
'For Community action to be justified, both aspects
of the subsidiarity principle shall be met: the objectives of
the proposed action cannot be sufficiently achieved by Member
States' action in the framework of their national constitutional
system and can therefore be better achieved by action on the part
of the Community.
'The following guidelines should be used in examining
whether the above-mentioned condition is fulfilled:
- the issue under consideration has transnational
aspects which cannot be satisfactorily regulated by action by
- actions by Member States alone or lack of Community
action would conflict with the requirements of the Treaty (such
as the need to correct distortion of competition or avoid disguised
restrictions on trade or strengthen economic and social cohesion)
or would otherwise significantly damage Member States' interests;
- action at Community level would produce clear
benefits by reason of its scale or effects compared with action
at the level of the Member States.'
The Protocol also provided that the reasons for proposed
Community legislation should be stated, demonstrating compliance
with the subsidiarity principle by means of 'qualitative or, wherever
possible, quantitative indicators', that the Commission should
produce an annual report on the application of the principles
of subsidiarity and proportionality, and that the Council and
the EP should also take account of those principles in any amendments
to Commission proposals.
105. The UK Permanent Representative told us that
there had been 'a distinct improvement since the principle of
subsidiarity was implanted in the Maastricht Treaty, strengthened
by the Protocol in [the Treaty of] Amsterdam and supported by
a change of policy, if not yet a complete change of culture, within
the Commission and the other Union institutions'. He particularly
commended the Commission in this respect,
and we note the statements relating to subsidiarity in the Commission's
White Paper on European governance.
However, the Permanent Representative also indicated that 'there
are still cases where the United Kingdom has expressed concerns
on subsidiarity grounds'.
We too encounter legislation clearly offending against the principle
of subsidiarity most recently the proposed legislation
on racism and xenophobia.
106. Debates in the Convention have indicated strong
support for the principle of subsidiarity.
However, support for the principle in the abstract does not necessarily
lead to application of it in specific matters, and there are widely
differing views as to what constitutes subsidiarity, illustrated
by the combination in the speech of 22 May 2002 by the Commission
President (Romano Prodi) of references to subsidiarity and a call
for, among other things, 'an integrated European police force'.
Sir Neil MacCormick MEP described as 'one of the oddities' the
fact that national governments support the principle in theory
but breach it in the Council in practice, referring to the 'curious
excess of zeal of the States acting together to bind the States
Alain Lamassoure MEP described the problem to the Scottish Parliament's
European Committee as follows:
'No European institution is in reality willing
to comply with the principle of subsidiarity... I have personal
experience of that as a member of the European Parliament and
as a former member of the Council of Ministers... The Commission
is not keen to comply with the principle of subsidiarity
it is a matter of authority and retaining its power. For the same
reasons, the European Parliament is not keen on subsidiarity.
It is more surprising that the European Court of Justice does
not consider itself to be in charge of scrutinising compliance
with the subsidiarity principle. The main responsibility of the
European Court of Justice is to secure equality of competition
throughout Europe. Equality of competition usually means the same,
single regulation for the whole of Europe's great single market.
'It is even more surprising that even the Member
States are not in favour of abiding by the subsidiarity principle
at least the members of the Council of Ministers are not.
Why is that so? It does not matter to a Minister for agriculture,
environment or the budget whether the last word is in Brussels
rather than in his or her capital city that Minister does
not feel that he or she is losing authority or competence. The
only difference is that decisions are made in Brussels instead
of in the Minister's capital city the Minister is always
at the table. It is even more convenient for a Minister who is
a member of the Council of ... Ministers to negotiate and decide
in Brussels than in his or her capital city, because in Brussels
the Minister is among fellow Ministers who are in charge of the
same competence. Such Ministers are also more remote from the
scrutiny of Prime Ministers, national media and national Parliaments
they have a wider margin for manoeuvre'.
107. Jens-Peter Bonde MEP emphasised the role the
European Court of Justice had played in extending EU competences.
The EP Constitutional Affairs Committee report observes that 'the
wording of the Treaties and the history of the single market have
often led the Court to defend the most Community interpretation.'
108. Several of our witnesses argued that the EU
institutions, especially the Council, were capable of ensuring
adherence to the principle of subsidiarity,
but we do not share that view, for the reasons given by Alain
agree with those who have advocated new procedures to enforce
the principle of subsidiarity. We therefore seek to answer
the following questions:
- Is a new definition of subsidiarity needed, and,
if so, what should it be?
- Should its enforcement be a political or a judicial
- In either case, how should it be enforced, and
by who, and should national parliaments have a role here?
- At what stage in the legislative process should
proposals be checked for compliance with subsidiarity?
109. Sir Neil MacCormick MEP defined subsidiarity
as 'the principle that decisions should be taken as close to the
persons affected by them as is consistent with equity and with
efficiency'. He pointed out that there is general agreement about
what the principle is but not about how it applies for
example what is equitable and efficient in a particular policy
area. The Government
does not have a new definition of its own.
We encountered some criticism of the Treaty definition,
but we do not believe redefining the principle of subsidiarity
will contribute much to better application of it.
110. The Minister for Europe told us he had an open
mind on whether enforcement of subsidiarity should be by judicial
means (through the ECJ) or political means (through some form
of second Chamber).
The EP's Constitutional Affairs Committee has proposed that the
ECJ become a Constitutional Court with the role of enforcing subsidiarity.
Sir Neil MacCormick MEP wanted 'a detached and judicial or quasi-judicial
arbiter to decide whether subsidiarity as a legal principle is
violated or not by some piece of legislation', as with devolved
and reserved powers in the UK, and told us that the courts gradually
build up precedents which define very broad and general terms,
and could do so in respect of 'equitable' and 'efficient' in relation
111. On the other hand, Klaus Hänsch MEP regarded
subsidiarity as a political rather than a judicial matter because
'in the end you cannot tell people or tell the governments who
decided on a European level that this was not possible because
of the principle of subsidiarity.'
The Scottish Executive's Deputy First Minister supported 'early
political intervention' to halt decisions on laws offending against
subsidiarity on the practical grounds that this would be faster
than involving the ECJ and therefore a better safeguard.
112. Since the principle of subsidiarity is incorporated
in the Treaties, it must be capable of being interpreted by the
ECJ. However, we believe enforcement of the principle of subsidiarity
should be a political matter, for two reasons. The first is
the practical one that political enforcement is likely to be faster.
The second is that decisions on whether the objectives of a policy
would be better achieved at a particular level of government are
fundamentally political ones.
113. If there is to be political enforcement of the
principle of subsidiarity, or at least political involvement in
the process, there are three reasons, in our view, why national
parliaments should play a part:
- As Alain Lamassoure MEP and others have argued,
the EU institutions are not in practice keen on applying the principle;
- While many national parliaments strongly favour
greater EU integration, they do not have an inherent, institutional
interest in transferring powers to the EU level, and could therefore
counterbalance the EU institutions;
- National parliaments, being generally closer
to the people they represent than any EU institution, are more
likely to reflect the views of citizens on such matters.
We note that the proposal to involve national parliaments
has wide support, most speakers in the recent Convention debate
favouring some sort of mechanism composed of national parliamentarians.
We believe national parliamentarians should have a role in
determining questions of subsidiarity.
114. We consider in the next section of this Report
how national parliaments and their members might do this.
Here we note that various methods are possible: they (or particular
members or committees) might make the decision, might refer cases
for decision by another body, or might just advise. If cases
are referred for decision by another body, we would favour that
body being a political or quasi-judicial arbiter or watchdog,
as discussed later.
115. A further question is at what stage in the legislative
process any questions of subsidiarity should be raised. The EP's
Constitutional Affairs Committee observed that clearing a proposal
at an early stage would mean that subsequent amendments by Council
or EP offending against subsidiarity could not be remedied, whereas
examining a proposal at a late stage might result in months of
work being undone. It concluded that examination at a late stage
was a better option because it would encourage the Council and
EP to adopt a cautious approach.
We are not persuaded that an 'either/or' decision is necessary:
stopping proposals which offend against subsidiarity at an early
stage would prevent much wasted effort, but it could also be possible
to scrutinise for subsidiarity problems at the end of the legislative
process any changes made to a proposal. We note that the
Commission says it is committed to withdrawing proposals 'where
inter-institutional bargaining undermines the Treaty principles
of subsidiarity and proportionality or the proposal's objectives'.
'Ever closer union'
116. Article 1 of the Treaty on European Union refers
to 'the process of creating an ever closer union among the peoples
of Europe.' 'Ever closer union' is a legitimate aspiration, and
may come about if the people of Europe desire it. However, we
do not regard it as appropriate for a treaty to commit the peoples
it covers to such a vague and open-ended process. The closeness
of the union should depend on decisions made openly and democratically
at each stage. Removing the phrase from the Treaties would help
to reduce the perception that the EU is engaged in a one-way process
towards greater centralisation regardless of what citizens want.
The reference to 'ever closer union' should be removed from
190 Treaty of Nice, Declaration 23. Back
See also European Commission, European governance: a White
Paper, p. 20. Back
Q. 111. Back
Q. 348. Back
i.e. 'living marine resources in the zones covered by the Treaty'. Back
This paragraph is based on Convention document SN 1990/3/02 REV3,
25 April 2002, Preliminary reflections on the delimitation
of competence between the European Union and the Member States. Back
Draft report on the division of powers between the European
Union and the Member States ('Lamassoure report'), February
2002, 2001/2024 (INI), pp. 16-17. Back
Article 308 EC provides that measures may be taken 'if action
by the Community should prove necessary to attain, in the course
of the operation of the common market, one of the objectives of
the Community and this Treaty has not provided the necessary powers'. Back
Speech at The Hague, 21 February 2002. Back
Response of Scottish Executive to Scottish Parliament's European
Committee's 9th Report, February 2002, p.2. Back
Ev 182, 184. Back
QQ. 186, 472; Ev 96. Back
EP, A5-0133/2002, Lamassoure report, p. 20. See also Q. 186. Back
Speech at The Hague, 21 February 2002. Back
Now part of Article 5 EC. Back
Treaty of Amsterdam, 1997, Cm 3780, p. 85, paragraph (5). Back
Ibid., pp. 85-6, paragraphs (4), (9), (11). Back
Q. 147. Back
European governance: a White Paper, pp. 10-11, 22. Back
Q. 147. Back
ESC, 2001-02, HC 152-xxi, para. 3. See also ESC, 2001-02, HC
152-xxxiii, para. 13 (seat belts). Back
Note on the Convention plenary meeting, 15-16 April 2002 (CONV
40/02), p. 7; note on the Convention plenary meeting, 23-4 May
2002 (CONV 60/02), pp. 4-5. Back
Speech of 22 May 2002. Back
Q. 198. See also Q. 239. Back
Quoted in 9th Report from the European Committee of the Scottish
Parliament, The governance of the European Union and the future
of Europe: what role for Scotland?, SP Paper 466, para. 81.
See also QQ. 81, 441, 473. Back
Q. 482. Back
EP, A5-0133/2002, Lamassoure report, p. 25. See also Ev 198. Back
QQ. 239, 243; Ev 75, 172. Back
Para. 106 above. Back
Q. 198. See also Ev 183. Back
Q. 290. Back
QQ. 186, 441. Back
Q. 291. See also speech by the Foreign Secretary at The Hague,
21 February 2002. Back
EP, A5-0133/2002, Lamassoure report, p. 25. See also the EP resolution,
16 May 2002, P5-TA (2002) 0247, paras. 41-3. Back
QQ. 198-9. Back
Q. 160. Back
Q. 377. Back
Note on the Convention plenary meeting, 15-16 April 2002 (CONV
40/02), p. 7. See also QQ 108, 110, 428; EP, A5-0133/2002, Lamassoure
report, p. 25. Back
Paras. 131-5 below. Back
Paras. 134-5 below. Back
EP, A5-0133/2002, Lamassoure report, p. 25. Back
European governance: a White Paper, p. 22. Back
For the argument that it should be replaced by a statement of
the EU's objectives, see Convention document CONV 22/02, p. 3
(Andrew Duff MEP). Back