Select Committee on European Union Eleventh Report

Closer monitoring of subsidiarity

40.  The Convention's Working Group proposed a strengthening of the Commission's obligation to examine any legislative proposal against the principle of subsidiarity. The Group's report suggests that the Commission should attach a 'subsidiarity sheet' to every legislative proposal so that all parties affected by it may easily assess compliance of the proposal with the principle of subsidiarity.

41.  The Working Group agreed that subsidiarity should be debated from the very beginning of any legislative process. As a practical suggestion for applying this proposal, the Group cited the Commission's annual legislative programme as a suitable document that could inform a preliminary debate by the European Parliament and national parliaments on the application of subsidiarity in forthcoming legislative proposals.

42.  The Working Group concluded that ensuring respect for subsidiarity and proportionality was a shared responsibility and that the Commission, the European Parliament, the Council and national parliaments must all ensure compliance[57]. It said that national parliaments had an essential role to play, and should be involved as early as possible in the legislative process in monitoring subsidiarity[58]. It rejected the idea of creating new permanent or ad hoc bodies or institutions for this purpose[59].

43.  It is instructive to compare these proposals with those of the Commons Committee, which has argued that national parliaments should play a part in checking subsidiarity, for three reasons:

·  EU institutions are not in practice keen on applying the principle;

·  National parliaments do not have an inherent, institutional interest in transferring powers to the EU level;

·  Being generally closer to the people than any EU institution, national parliaments are more likely to reflect the views of citizens on such matters.[60]

44.  For these reasons, the Commons Committee has argued that national parliamentarians should have stronger rights than consultation and should look at the Annual Work Programme to see if measures are being taken at an EU level when action would be more effective at a national level[61]. The Committee argued that subsidiarity should be monitored throughout the legislative process, and recommended a 'subsidiarity watchdog' to which items of legislation could be referred by national parliamentarians for compliance.

45.  We note that the Working Group concluded that the principle of subsidiarity is essentially of a political nature. This was affirmed by Peter Hain in his letter to the chair of the Working Group[62]. It is very difficult to establish unequivocally that 'objectives of the proposed action cannot be sufficiently achieved by the Members States and can therefore be better achieved by the Community.'[63] Such a judgement entails a considerable degree of discretion for the European institutions.[64]

46.  We agree with the Working Group's conclusion that the monitoring of compliance with subsidiarity has a strong political content. We welcome the importance that the Working Group has attached to greater involvement of national parliaments in the monitoring of the application of subsidiarity. An opportunity has to be provided for such monitoring at the earliest possible stage of the legislative process. We accordingly undertake to continue to monitor all proposals coming before us in this light. We also note that an alternative means of controlling the application of subsidiarity would be the creation of a constitutional council. If any such proposal were to emerge - particularly during the Convention's deliberations or at the forthcoming IGC - we would examine it in due course.

Early Warning System

47.  The Working Group has proposed a number of amendments to the subsidiarity protocol that will address the lack of national parliamentary involvement. The Working Group's report suggests the creation of an 'early warning system'. This system would allow national parliaments to issue a reasoned opinion regarding the compliance of each proposal with the principle of subsidiarity. This opinion should be expressed by a majority and commit the whole assembly in accordance with procedures it will itself determine. The reasoned opinion should relate only to the theoretical question of compliance with subsidiarity and not with its substance in general. Such a reasoned opinion would be sent to the Presidents of the European Parliament, the Council and the Commission.

48.  The Working Group has qualified this right of complaint in a number of ways. If opinions from one third of national parliaments are delivered, the Commission would re-examine a proposal, and could maintain it, amend it or withdraw it. The Commission would have final discretion to override national parliament opinion at this stage by re-submitting the proposal. Gisela Stuart has termed this 'the yellow card'[65].

49.  The Working Group's final report remarks that such an early warning system would allow greater national parliament involvement in the European legislative process without lengthening the EU legislative process, as national parliaments would have to give their opinion within the present six week period allowed for scrutiny.

50.  The proposals have received a mixed reception. The Prime Minister interpreted the Working Group's recommendation as "a radical strengthening of the subsidiarity principle...if a sufficient number of national parliaments object the Commission's proposal will have to be revised" [66]. The proposal was described in the House [67] as "groundbreaking…The Union has never had a mechanism that would allow national parliaments to make a political judgment on whether the EU's legislative proposals suggest action at the right level"[68]. On the other hand the proposal was also described in the House as labour leading to "a very small brown mouse" with no practical effect[69].

51.  The "yellow card" proposal raises practical questions, particularly as presented by the Praesidium. First, the proposed protocol allows each national parliament one vote, raising questions about how a bicameral parliament will operate the system, and about the involvement of regional parliaments. The Praesidium proposes to meet these difficulties by leaving them to national parliaments to sort out.

52.  The principle of "one Parliament one vote" is unsatisfactory. Not only does it raise practical questions about process: it also raises the possibility of the views of one House being "crowded out" by the other. We have recently proposed that COSAC operates on the basis of two votes per Member State, specifically to provide flexibility for bicameral parliaments. We recommend that the proposed subsidiarity protocol likewise be amended to provide two votes per Member State, with the presumption that bicameral parliaments will allocate one vote to each House.

53.  A second objection to the early warning mechanism is that it is conceivable that, as a matter of practical politics, national parliaments might register a subsidiarity objection either because they had not reached a view on a proposal and wanted to leave their options open, or because they objected to its substantive policy content. We consider that this argument is met by the requirement for national parliaments to give a "reasoned opinion" when registering a subsidiarity objection.

54.  As for the objection that the "yellow card" mechanism is a "mouse" - that it is in effect a procedure with no sanctions - we note first that the Commission will be obliged to give reasons for proceeding if one third of national parliaments object to a proposal on grounds of subsidiarity. This does provide a form of accountability and hence a sanction, albeit of limited direct effect. We nevertheless recommend that the Commission be required to communicate its reasons direct to national parliaments.

55.  We also note that the proposed protocol gives national parliaments the right to issue a "reasoned opinion" on subsidiarity if a Conciliation Committee is convened. We support this but would go further - we have already called for an opportunity for full national parliamentary scrutiny at the Conciliation stage[70].

Strengthening the yellow card?

56.  There are also a number of options for strengthening such an early warning mechanism should that be desired. First, it has been suggested that where, for example, one third of national parliaments object to a legislative proposal on the grounds of subsidiarity, the Council must proceed by unanimity[71]. A second proposal came from Gisela Stuart who suggested a "red card"[72] procedure whereby, if the Commission received reasoned opinions from two-thirds of national parliaments, the Commission would be required to withdraw its proposal. Ms Stuart also suggested that during the rest of the legislative process, national parliaments should be kept informed of any amendments to the text so they could monitor changes. Should national parliaments feel that later changes violated the principle of subsidiarity, they could use the proposed early warning mechanisms.

57.  An objection to the "red card" proposal could be that it could be thought a drive to slow down the EU's legislative process, or an attack on the Commission's right of initiative. This can be countered by the argument that a two-thirds threshold is going to be quite hard to achieve, meaning that the "red card" will always remain a weapon of last resort.

58.  We note that the Praesidium's proposed protocol on subsidiarity takes forward only the "yellow card" proposal and not the "red card". We consider that this will, in most circumstances, strike the right balance, providing an individual right to be heard, rather than a collective right to block. We nevertheless recommend that the "red card" proposal be maintained. The successful marshalling of the necessary majority to activate the "red card" will, in our view, be a very rare event. The fact that so many national parliaments were concerned about a proposal might well reveal a serious concern that would need addressing. Any effective early warning system would of course require an effective mechanism to allow national parliaments to exchange information.

Broader Court of Justice referral

59.  In her submission to the Convention, Gisela Stuart has also argued that any national parliament should be allowed to refer a matter to the Court for violation of the principles of subsidiarity and proportionality[73].The proposed protocol does not achieve this. It instead provides that "the Court of Justice shall have jurisdiction to hear actions brought by Member States on the grounds of infringement of the principle of subsidiarity, where appropriate at the request of their national parliaments, in accordance with their respective constitutional rules". This looks impressive but in fact it does nothing. The Court does not need any additional jurisdiction to rule on subsidiarity at the behest of a Member State. It can do that now (and on at least one occasion has done so[74]). Further, there is nothing to stop a Member State having an arrangement whereby it will bring an action before the Court where its Parliament requests it to do so. We are, however, pleased to note that the proposed protocol will give the regions, through the Committee of the Regions, a right of action, at least as regards subsidiarity.

60.  We agree with the Working Group that it is important that national parliaments should have the possibility of challenging a measure in the Court of Justice on subsidiarity grounds. The proposed protocol accordingly needs strengthening, as Gisela Stuart proposed, to give national parliaments the right to bring proceedings for violation of the principles of subsidiarity and proportionality.

57   Working Group IV Report, para. 22. Back

58   Working Group IV Report, para. 23.  Back

59   Working Group IV Report, para. 24. Back

60   33rd Report, 2001-02, para. 113. Back

61   33rd Report, 2001-02, para. 131. Back

62   WD 22 - WG I: Letter from Mr Hain to Mr Mendez de Vigo. Back

63   Art 5 (ex Article 3b) TEC in SN 2790/02 Working Group 1 Working Document 1. Back

64   Reappraising Subsidiarity's Significance after Amsterdam, De Burca, G, Cambridge MA: Harvard Law School, 1999. Back

65   QQ 6-10. Back

66   Speech in Cardiff on 28 November 2002 - A clear course for Europe (http// Back

67   Debate on 7 January 2003 HL Deb cols 897-985. Back

68   Baroness Symons of Vernham Dean speaking or the Government Hl Deb 7 Jan 2003 col 981. Back

69   ibid col 934. Back

70   1st report session 2002-3, para 35. Back

71   Lord Owen speaking in the House of Lords (HL Deb 7 January 2003, col 948). Back

72   CONV 540/03 - see also QQ 6-10. Back

73   CONV 540/03. Back

74   Case C-84/94, United Kingdom v Council [1996] ECR I-5755. Back

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