98. The Protocol on the Application of the Principles
of Subsidiarity and Proportionality attached to the Amsterdam
Treaty states that "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".
99. The principle of subsidiarity therefore obliges
the Commission to justify all EU legislative proposals and formally
limits the Commission to legislate only in areas where action
cannot be achieved sufficiently at national constitutional level.
The draft Treaty states that "the use of Union competences
is governed by the principles of subsidiarity and proportionality".
The draft Treaty has further developed the importance of the principle
of subsidiarity in the European decision-making process in three
distinct ways, set out in a revised version of the Amsterdam Protocol.
100. First, the draft Treaty extends the requirements
for the Commission to justify its legislative proposals with regard
to subsidiarity. The Commission is obliged to send all its legislative
proposals and its amended proposals directly to national parliaments
at the same time as to the EU institutions. The draft Treaty also
obliges the Commission to justify all legislative proposals with
regard to subsidiarity and proportionality by issuing a detailed
statement which will allow clear assessment of whether subsidiarity
is being adhered to.
101. The draft Treaty stipulates that the subsidiarity
statement must include an assessment of proposals' financial and
legislative impact in Member States and must also substantiate
the reasons for pursuing Community action through qualitative
and wherever possible quantitative indicators. When proposing
legislation, the Commission is obliged to take account of financial
or administrative burdens at Union, national, regional or local
level implied in proposed legislation. The Commission is also
obliged by the draft Treaty to submit to EU institutions and the
Member States' national parliaments an annual report on the application
of the principle of subsidiarity.
102. Secondly, the draft Treaty introduces a formal
role for national parliaments in monitoring compliance of legislation
with the principle of subsidiarity. The draft Treaty states that
any national parliament or chamber of a national parliament can
issue an objection to a legislative proposal on the grounds of
violation of the principle of subsidiarity. This objection must
be sent (within six weeks of transmission of the Commission's
proposal) to the Presidents of the European Parliament, the Council
and the Commission and must consist of a reasoned opinion stating
why the proposal does not comply with the principle of subsidiarity.
103. This procedure is referred to as the "yellow
card". Unicameral national parliaments will have two votes,
while the chambers of a bicameral parliament will have one vote
each. If objections on the grounds of violation of the principle
of subsidiarity are received from at least one third of all the
votes allocated, the Commission will review its proposal and decide
to maintain, amend or withdraw its proposal. (In the case of proposals
in the area of freedom security and justice the level is set at
one quarter). The Commission must give reasons for its decision.
104. In addition, the European Court of Justice will
have jurisdiction to hear actions on grounds of infringement of
the principle of subsidiarity brought by a Member State on behalf
of its national parliament. There will, however, be no obligation
on a government to do so. The Committee of the Regions may bring
such an action in legislative areas where it has a right to be
105. It is unclear whether the proposed yellow card
procedure will only apply when the Commission initiates or amends
a proposal. What about proposals originating from the Council
or the Member States, and amendments made by the Council or by
the European Parliament, for example during co-decision and conciliation?
Peter Hain told us (Q51):
I am pretty sure that the spirit at least of this
proposal, as any new legislative proposal coming from wherever
it is initiated from, is that this subsidiarity mechanism applies
and it also tracks it through the process. One of the points made
to me in the context of the Convention was that
it is the Council or the Parliament that amends Commission legislation
that threatens subsidiarity or proportionality more than the Commission's
proposal might have done.
106. In addition, under the provisions of the Protocol,
national parliaments are, when operating the subsidiarity mechanism,
to consult "where appropriate" regional assemblies with
107. The Protocol on Subsidiarity also refers to
the principle of proportionality stating that: "Any action
by the Community shall not go beyond what is necessary to achieve
the objectives of this Treaty" (Protocol on Subsidiarity,
Art 5.3) The principle of proportionality therefore requires any
Union measure to be no more burdensome than is necessary to achieve
its objectives. A judgement on whether a Union measure complies
with the principle of proportionality is less clear-cut than one
on the compliance with the principle of subsidiarity as it relates
to substance. Nevertheless, in monitoring the compliance of measures
with the principle of subsidiarity, national parliaments should
also take into account the closely related principle of proportionality.
Once the legitimate aim or objective of a measure is identified,
an assessment of compliance with the principle of proportionality
could be made by applying a three-fold test: is the measure a
suitable or useful means of achieving the objective; is it necessary
for achieving the objective; and is there a reasonable relationship
between the measure and the objective.
108. We have considered carefully whether proposals
giving national parliaments a "yellow card" procedure
on subsidiarity go far enough. Some have argued that this procedure
introduces an entirely new dynamic to the EU decision-making process.
For the first time in the EU's history, national parliaments will
have, by Treaty, a right to object directly to the Commission
about proposed legislation. It was suggested to us that the very
fact of the Commission having to read the views of national parliaments
would be a contribution to enhancing the democratic legitimacy
of the Union.
109. The Government has accordingly described the
procedure as "groundbreaking"
arguing that it greatly strengthens the role of national parliaments
in the EU decision-making process and provides mechanisms to ensure
that the EU shall only act if the objectives of the intended legislation
cannot be sufficiently achieved by the Member States. As such,
it is argued, these proposals emphasise the role of Member States
and introduce a voice for national suffrage in the EU decision-making
process where none existed previously.
110. On the other hand some have described the procedure
as "a mouse"
presumably on the grounds that none of this really matters if
the Commission can just ignore the wishes of national parliaments
and proceed with a proposal anyway. Hence there has been a call
for a "red card", which would trigger the withdrawal
of a Commission proposal. Its use could perhaps be confined to
cases where the Commission has ignored a yellow card; or, as an
alternative, the Council could be required to act unanimously
in any case where a yellow card has been shown.
111. Some have argued that the Commission would not
in practice ignore a yellow card. M Haenel suggested (Q10) it
would be "very difficult" for the Commission to ignore
the collective will of national parliaments under this procedure,
a view endorsed by our own Government (White Paper, paragraph
112. We accept the argument that, if national parliaments
operate effectively, the yellow card procedure could have the
effect of causing the Commission to change its proposals. We nevertheless
also see force in the argument that the Protocol should also contain
a "red card" procedure by which a higher threshold of
national parliamentary votes - say two thirds (or half in the
case of proposals in the area of freedom security and justice)
- would have the effect of blocking a proposal if the Commission
ignored the yellow card. This, it could be argued would provide
a valuable long-stop, which would be only very rarely, if ever,
used, but the fact that such a number of national parliaments
continued to maintain serious concerns would indicate that there
were significant issues that needed to be addressed.
113. On the other hand, we note that the existence
of a red card might weaken the effect of a yellow card if that
procedure was not sufficiently robust to be of value in itself.
The danger would be that a yellow card would be easy to ignore,
not being the ultimate sanction of a red card; and that a red
card in turn would be almost impossible to obtain, given the high
114. The Government has argued that the subsidiarity
provisions provide "a good basis for securing a more active
role of national parliaments".
If the Government and others are right that the yellow card will
have effect in practice, then there is a significant duty on national
parliaments to make these new provisions work.
115. Although we have previously pressed for a
red card, we accept that the subsidiarity mechanism as it stands
in the Protocol to the draft Treaty is intended to strengthen
democracy in the EU. To do so, however, the mechanism must work,
and must work effectively. The Government must accordingly satisfy
Parliament that the yellow card will indeed be an effective mechanism.
We consider that the yellow card procedure requires further safeguards
and to this end we make a series of recommendations to strengthen
what is proposed in the draft Protocol.
116. The draft Protocol provides for the Commission
to give its reasons in responding to a "yellow card".
If the yellow card is indeed to be the only procedure, there is
a duty on the Commission to adhere strictly to its obligations
and to be accountable for its decisions. Accordingly, the Commission's
reasons for responding as it does to a "yellow card"
should be detailed, should relate directly to the concerns expressed
by national parliaments and should be promptly transmitted to
national parliaments and to the Presidents of the European Parliament
and the Council of Ministers (to whom the Protocol provides for
national parliaments' concerns to be conveyed).
117. We also recommend that the Protocol's subsidiarity
procedure should extend to issues of proportionality, that is
cases where the Commission is thought to be acting correctly but
too intrusively or too heavy-handedly. Although we can see an
argument that concerns about proportionality will be less clear
cut than those of subsidiarity, and the mechanism thus harder
to operate, we nevertheless consider that, to enhance the democratic
safeguards provided by the yellow card procedure, it should extend
to proportionality as well as subsidiarity. We are thus pleased
to see that our Government is pressing for this.
118. The draft Protocol also needs to make it
clear that the proposed subsidiarity mechanism applies at every
stage of every legislative proposal.
119. Looking to the role of national parliaments,
we first recommend that this House develops a strong internal
procedure for the subsidiarity mechanism, drawing on co-operation
with the Commons where appropriate but recognising that each Chamber
will have an independent vote. It should be noted that, even
if the two Houses reach a different conclusion in a particular
case, the votes will not cancel each other out, as the procedure
envisages votes building to a threshold rather than seeking to
achieve a majority. Once the draft Treaty has been agreed,
we will report further to the House on the mechanics of operating
the subsidiarity mechanism.
120. An effective subsidiarity mechanism will
also require resolute and efficient collective action by national
parliaments to ensure that concerns are shared within the timescales
set by the Protocol.
121. On matters of detail, the draft Protocol does
not specify who will count, record and announce the result of
the voting under the yellow card. It may be implied that it will
be the Commission. This would not be acceptable: an independent
monitor should be appointed for this purpose.
122. We accordingly recommend that national parliaments
develop a system to allow the collective recording of subsidiarity
objections by a simple means - preferably by way of contributions
by each national parliament to a special website. National parliaments,
again acting collectively, should appoint a monitor to count objections
and notify the Commission when the threshold is reached.
123. Overall, we consider that a subsidiarity
mechanism with these additional features would indeed represent
an important development of democracy in the Union and, by clearly
stating and enhancing the role of national parliaments in helping
to ensure that the Commission does not act when it should not
do so, would help to confirm that the European Union is a union
of Member States.