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Coordinated subsidiarity checks before the entry into force of the Treaty of Lisbon

(updated until 1.06.2010)

Before the entry into force of the Treaty of Lisbon, national parliaments exercised their role in the scrutiny of compliance with the principles of subsidiarity and proportionality in EU legislative proposals in accordance with Article 5 of the Treaty establishing the European Community, "Protocol [No 9] on the role of national parliaments in the European Union" annexed to the TUE and the Treaties establishing the Communities and "Protocol [No 30] on the application of the principles of subsidiarity and proportionality" annexed to the TEC. The first protocol conferred a special role in the application of the principle of subsidiarity on the Conference of Community and European Affairs Committees (COSAC), which could address to the European Parliament, the Council and the Commission "any contribution which it deems appropriate on the legislative activities of the Union, notably in relation to the application of the principle of subsidiarity [...]".

At the XXXII COSAC meeting in The Hague on 22-23 November 2004, in connection with the proposal to establish the "early warning mechanism" provided for in the "Protocol on the application of the principles of subsidiarity and proportionality" annexed to the draft Constitutional Treaty, a decision was taken to conduct pilot subsidiarity checks with a view to assessing how the new procedure functioned in practice.

Since then, every year national parliaments could participate in one or two coordinated subsidiarity and proportionality checks of European legislative proposals. The checks were conducted under the auspices of COSAC on projects selected jointly by national parliaments. Starting in 2009, the selection of proposals was based on Article 10.6 of the COSAC Rules of Procedure, according to which each parliament had two votes, meaning that in the case of bicameral parliaments each chamber had one vote. Previously, in selecting proposals for scrutiny, unicameral parliaments had one vote and bicameral parliaments had two.

The procedure under which the checks were carried out was outlined in each case in an aide-mémoire of the COSAC Secretariat, drawn up on the basis of COSAC's decision. The document covered the following issues:

  • inviting the national parliaments to inform the COSAC Presidency of the legislative proposals they wish to be subject to the check,
  • reminding them of the time limit for scrutiny as provided in the Treaties (6 weeks from the date of transmission of a legislative proposal in all official languages) or setting a different (later) date in consultation with the Commission,
  • inviting comments on subsidiarity and proportionality to be transmitted directly to the Commission, the EP and the Council, copied to the COSAC Presidency,
  • reference to IPEX as a platform for information exchange between national parliaments on subsidiarity and proportionality checks.

The aide-mémoire of November 2007 recommended that the subsidiarity check procedure should be tested in accordance with Protocol No 2 annexed to the Treaty of Lisbon, pointing out the following issues:

  • 8-week period allowed for the check; however, as the wording of Article 6 of the Protocol was imprecise, it was agreed that the period would run from the transmission of a legislative proposal in all official languages of the Union. The COSAC Secretariat undertook to notify the date to parliaments,
  • national parliaments or parliament chambers were asked to transmit reasoned opinions on non-compliance with the principle of subsidiarity to the Commission, the EP and the Council, and to the COSAC Secretariat,
  • national parliaments were encouraged to post information on their checks on the IPEX website (in the context of the "yellow card" and "red card" mechanisms).

The recommendations were reiterated in July 2008 with reference to the check scheduled for 2009.

In addition, in November 2008, the XL COSAC meeting in Paris adopted the 10th Bi-annual Report, which presented the results of the working group on the cooperation in implementing Protocol No 2 annexed to the Treaty of Lisbon (Chapter 2 of the Report). In the Conclusions of the meeting, COSAC also noted that the period of 8 weeks was during the summer parliamentary recess and proposed that the period be extended.

In May 2009, the XLI COSAC meeting in Prague acknowledged the declaration of the European Commission concerning the suspension, after the entry into force of the Treaty of Lisbon, of the 8-week subsidiarity check period when parliaments are in recess.

In October 2009 , the XLII COSAC meeting in Stockholm agreed that in light of the prospects for an early entry into force of the Treaty of Lisbon no decision would be taken on further pilot exercises concerning subsidiarity checks. The Conference called on the incoming Spanish Presidency to reflect on possible forms of future cooperation in this regard.

In June 2010, the XLIII COSAC meeting in Madrid agreed that, after the entry into force of the Treaty of Lisbon, coordinated subsidiarity checks should no longer be a priority for the Conference. The checks may be conducted on an ad hoc basis on the proposal of each Presidency.

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