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OIDE Notes

The principle of subsidiarity and national parliaments in the Lisbon Treaty

SUBSIDIARITY PRINCIPLE BEFORE THE LISBON TREATY

The principle of subsidiarity, considered today as one of the main principles underpinning the Union, was introduced by the Treaty of Maastricht. It meant that in areas which do not fall within its exclusive competence, the Community takes action only if and in so far 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.

By the Treaty of Amsterdam, Protocol [No 30] on the application of the principles of subsidiarity and proportionality was annexed to the TEC, setting forth precise criteria for the application of both principles. Besides, a formal basis was created for the consideration of the principles of subsidiarity and proportionality by national parliaments, allowing them 6 weeks for the examination of a legislative proposal or a proposal for a measure to be adopted under Title VI of the TEU on police and judicial cooperation in criminal matters (a period of 6 weeks had to elapse between a proposal being made available in all languages to the EP and the Council and the date when it is placed on a Council agenda – Article 3 of Protocol No 9 annexed to the TEU, TEC and TEAEC by the Treaty of Amsterdam).

SUBSIDIARITY SCRUTINY OF DRAFT LEGISLATIVE ACTS UNDER THE LISBON TREATY

The Treaty of Lisbon has expanded and reinforced the tools made available to national parliaments. In particular, for the first time national parliaments were provided for in the text of the Treaties themselves:

  • in Article 5(3) of the TEU, which provides that national parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol [No 2],
  • in Article 12 of the TEU, which states that national parliaments actively contribute to the good functioning of the Union, and lists all relevant competences,
  • in Article 10(2) of the TEU, which emphasises democratic accountability of governments to their national parliaments.

Specific provisions on the competences of national parliaments are contained in the TEU, TfEU, and in two Protocols, Protocol [No 1] on the role of national parliaments in the EU and Protocol [No 2] on the application of the principles of subsidiarity and proportionality, annexed to the TEU, TfEU and TEAEC under the Treaty of Lisbon.

Definition of the draft legislative act

Parliaments receive all draft legislative acts directly from EU institutions, and not from their governments, as was the case previously. Draft legislative acts are defined in Protocol No 1 and in Protocol No 2 identically. They are “proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice (CoJ), recommendations from the European Central Bank (ECB) and requests from the European Investment Bank (EIB) for the adoption of a legislative act”. It should be noted that – as provided for in the Protocol No. 2 – parties initiating the legislative process (and the Council on behalf of some of them) are required to forward to parliaments not only draft legislative acts but also amended draft acts. The European Parliament also transmits its legislative resolutions, and the Council – its positions.

In bicameral parliaments, each chamber has the right to receive both information and legislative proposals.

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Subsidiarity scrutiny under the Treaty of Lisbon is conducted in accordance with:

  • Article 5 of the TEU – definition of the subsidiarity principle [Union shall act, in areas which do not fall within its exclusive competence, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level] and indication of the role of national parliaments,
  • Article 12(b) of the TEU – indication that national parliaments actively contribute to the good functioning of the Union by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol No. 2,
  • Article 69 of the TfEU – indication that national parliaments ensure the compliance with the principle of subsidiarity of the proposals and legislative initiatives submitted as part of police and judicial cooperation in criminal matters, as provided for in the Protocol No 2,
  • Protocol [No 2] on the application of the principles of subsidiarity and proportionality – definitions and procedure arrangements, including early warning mechanism.

It should be noted that, although the Protocol No 2 regulates the application of both principles, the new powers of national parliaments derive only from the subsidiarity control mechanism.

New arrangements for subsidiarity scrutiny:

  • an extended definition of the principle of subsidiarity – in the Member States, the principle applies not only at central level, but also at regional and local level: the Union takes action only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, both at central level and at regional and local level; national parliaments consult regional parliaments with legislative powers (Article 5(3) of the TEU, Article 6 of Protocol No 2),
  • the obligation of direct forwarding of draft legislative acts and amended drafts to national parliaments (Title I of Protocol No 1),
  • extension of the deadline for examination of draft legislative acts from 6 to 8 weeks. It is the period between a draft legislative act being made available to parliaments in the official languages of the Union and the date when it is placed on a provisional agenda for the Council. Except urgent cases, no agreements are made on a draft during those 8 weeks. In addition, also except urgent cases, the period between the date when a draft legislative act is placed on a provisional agenda for the Council and the adoption of a position is 10 days (Article 4 of Protocol No 1),
  • establishment of the early-warning mechanism (EWM), which is a tool allowing parliaments to directly interfere with the EU legislative process. The EWM includes the so-called yellow and orange cards (Articles 6 and 7 of Protocol No 2),
  • the possibility for a national parliament to bring an action with the CoJ through its government, on a legislative act infringing the principle of subsidiarity, sometimes referred to as the red card (Article 8 of Protocol No 2),
  • the Commission’s obligation to draw national parliaments’ attention – under the subsidiarity monitoring procedure – to proposals based on Article 352 of the TfEU. It contains the “flexibility clause”, which allows measures to be taken that are not provided for by the Treaties, but are necessary for the achievement of objectives defined in them, except those related to the common foreign and security policy.

It is also worth noting that due to the abolition of the pillar structure of the EU, the objective scope of the application of the principle of subsidiarity has been expanded, as relevant legislative acts are issued in all areas, except the common foreign and security policy.

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Early-warning mechanism (EWM)

Under the early-warning mechanism each parliament or each chamber may send to the presidents of the European Parliament, the Council and the European Commission – within 8 weeks from the date of transmission of a draft legislative act to national parliaments in the official languages – a reasoned opinion on its non-compliance with the principle of subsidiarity.

Each parliament has 2 votes (in the case of bicameral parliaments, each chamber has one vote). According to Article 7 of Protocol No 2, the originator of a draft legislative act takes account of reasons opinions. Where reasoned opinions represent one-third, and in the case of a proposal based on Article 76 of the TfEU – one fourth of all the votes allocated to national parliaments, the proposal must be reviewed (yellow card). As a result of the analysis, the originator of the proposal (the Commission, a group of Member States, EP, CoJ, ECB, EIB) may decide to maintain, amend or withdraw the proposal. Reasons must be given for this decision.

An orange card may be given only under the ordinary legislative procedure and only with regard to proposals originating from the Commission. If reasoned opinions on non-compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national parliaments (which in practice means 50% plus one, i.e. absolute majority), the Commission may, following a review, maintain, amend or withdraw the proposal.

If it chooses to maintain the proposal, the Commission presents a reasoned opinion on its compliance with the principle of subsidiarity, and the European Parliament or the Council, having acquainted themselves with reasoned opinions of national parliaments and the Commission, may reject the proposal before concluding the first reading. This requires a majority of 55% of the members of the Council (no demographic test required) or a simple majority of the votes cast in the European Parliament (a lowered threshold compared with the ordinary procedure, under which the EP rejects the proposal by qualified majority).

National parliaments are unable to block a draft legislative act on their own.

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