Writing for BrusselsReport.eu, Polish MEP Jacek Saryusz-Wolski (PiS- ECR) sets out his proposals for the “Conference on the Future of Europe (CoFE)” in a working document, discussing “Principles of Subsidiarity and Proportionality”, submitted to the European Parliament’s Committee on Constitutional Affairs. He has served as the first Polish Europe Minister, from 1991, when this office was created, until 1996.
Introduction:
This Working Document on the principles of subsidiarity and proportionality offers reflections for the Conference on the Future of Europe (CoFE) about the current state of application of the principles of subsidiarity and proportionality in the European Union (EU) and explores the possible ways of enhancement of the process in which these principles are exercised.
Legal basis:
The principles of subsidiarity and proportionality govern the exercise of the EU’s competences.
The principle of subsidiarity is laid down in article 5 of the Treaty on European Union (TEU). The application criteria are set out in the Protocol (No 2) on the application of the principles of subsidiarity and proportionality annexed to the Treaties.
In areas in which the Union does not have exclusive competence, the principle of subsidiarity seeks to safeguard the ability of the Member States to take decisions and actions and authorizes intervention by the Union only when the objectives of an action cannot be sufficiently achieved by the Member States, but can be better achieved at Union level ‘by reason of the scale and effects of the proposed action’.
The proportionality principle is laid down in the art. 5 (4) TEU. It requires that the Union’s actions do not exceed what is necessary to the achievement of the Treaties’ aims in terms of content and form. The purpose of including a reference to the principle in the EU Treaties is also to ensure that powers are exercised as close to the citizen as possible, in accordance with the proximity principle referred to in art. 10(3) TEU.
Both principles are confirmed in the judgements of the EU’s Court of Justice, in particular Cases C-84/94 and C-233/94, where the Court found that compliance with the principle of subsidiarity was one of the conditions covered by the requirement to state the reasons for Union acts (under art. 296 TFEU), and Case C-547/14, where the Court reaffirmed that it must verify ‘whether the Union legislator was entitled to consider, on the basis of a detailed statement, that the objective of the proposed action could be better achieved at Union level’.
Principles of subsidiarity and proportionality apply to all EU institutions. They are included in interinstitutional agreements, i.e. the Framework Agreement on relations between the European Parliament and Commission of 20 November 2010, where both institutions undertook to cooperate with the national parliaments in order to facilitate the exercise by them their power to scrutinise compliance with the principle of subsidiarity, and the Interinstitutional Agreement on Better Law-Making of April 2016, according to which the Commission must explain in its explanatory memoranda how the proposed measures are justified in the light of the principle of subsidiarity and must take this into account in its impact assessments. The Parliament for its part committed itself (Rule 42 of the Rules of Procedure) to pay particular attention to whether that proposal respects the principles of subsidiarity and proportionality during the examination of a proposal for a legislative act.
The Subsidiarity principle in practice:
The main element of the subsidiarity principle procedure, as outlined in the Protocol No 2, is the early subsidiarity check of a proposed legislative act by national and regional parliaments (Early Warning System – providing for the possibility of issuing reasoned opinions, and triggering so called yellow and orange cards). In addition, according to article 6 of Protocol No 2, regional parliaments with legislative powers are consulted, where appropriate, by national Parliament or a chamber of a national Parliament.
According to the data provided by the Parliament’s Directorate for Relations with National Parliaments last updated on 5 May 2021, since the entry into force of the Lisbon Treaty, the European Parliament received from national parliaments only around 498 reasoned opinions (stating the non-compliance of draft legislative acts with the principles of subsidiarity) and around 3078 contributions (referring to issues other than subsidiarity) out of 1008 draft legislative acts sent for examination under Protocol No 2.
Also since the entry into force of the Lisbon Treaty, the ‘yellow card’ procedure has been triggered three times only, always against the Commission’s legislative proposals:
a/ in 2012 concerning the Commission proposal for a regulation concerning the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services (‘Monti II’);
b/ in 2013 as a consequence of the submission of the proposal for a regulation on the establishment of the European Public Prosecutor’s Office;
c/ in 2016 against the proposal for a revision of the Directive on the Posting of Workers.
The ‘orange card’ procedure has never been used so far.
There have however been at least two cases of national parliaments taking initiative in proposing of EU legislation (so called green card initiatives) put forward in 2015 on food waste and in 2016 on corporate social responsibility respectively.
Compliance with the principle of subsidiarity may be also reviewed ex post by means of a legal action brought before the Court of Justice of the European Union (in line with the Protocol 2). However, the number of challenges before the Court of Justice on subsidiarity grounds is low. It is estimated that since the introduction of the principle in the Maastricht Treaty and by 2019 there have been approximately forty challenges of this kind. What is also important, the Court of Justice has never struck down a measure for breaching the subsidiarity principle.
Overview of proposals by the European Parliament:
Proposals for reforms in the functioning of the principles of subsidiarity and proportionality have been voiced by the European Parliament in several resolutions voted during the previous legislature. The overview of relevant proposals is provided in Annex I (see below).
Recommendations of the European Commission’s ‘Task Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’:
In July 2018, the European Commission released the report of the ‘Task Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’ [1]. The report provides an overview of the principles of subsidiarity and proportionality and offers a set of valuable and pragmatic recommendations. It introduces among others the concept of ‘active subsidiarity’ which is predicated on ‘a common understanding of subsidiarity and proportionality and a greater participation of all stakeholders and particularly national, local and regional authorities who often have a specific role in implementing Union legislation on the ground’, and it is intended to ‘promote greater ownership and understanding of what the Union does by those involved’. In agreement with proximity principle enshrined in art. 10(3) of TEU the report also underlined the need ‘to improve the current policymaking processes and to allow the Union to use it resources more efficiently’.
In October 2018, the Commission issued the Communication ‘The Principles of subsidiarity and proportionality: Strengthening their role in the EU’s policymaking’[2]. In accordance with this document, the Commission introduced a number of measures aiming at improving application of the principles of subsidiarity and proportionality, such as an assessment grid, and discounting holidays from the eight-week period in which national parliaments can submit reasoned opinions.
Observations:
Although the Covid-19 crisis has delayed the launch of the CoFE, the experience of pandemic has rendered the issues of subsidiarity, proportionality, and proximity all the more important as problem solving closer to the Europeans has become more urgent. The cooperation among the Member States and between the Member States and the EU institutions has been, and continues to be crucial in mitigating the crisis. Nevertheless, it is also important to note that the effects of this cooperation have revealed many deficits showing that the efficiency of EU’s performance is strongly correlated with the EU’s adherence to the principles of subsidiarity and proportionality, and the principle of proximity, which is complementing both of them. It should be highlighted that these principles apply to the EU system as a whole. This document is written as a reflection/discussion paper, and not as a position paper. It aims to capture the pluralistic spirit of the CoFoE, and as such it is meant to serve as a basis for further discussions as it encompasses wide array of ideas and concepts. Consequently, this document proposes a number of measures to reinforce the principles of subsidiarity, proportionality and proximity within the EU by e.g.:
- introduction into the legislative process stronger mechanisms of ex ante and ex post control to ensure that the EU institutions respect subsidiarity and proportionality principles and acti within the limits of Treaty provisions and do not venture in ultra vires areas;
- recognizing the role of national constitutional courts in safeguarding Treaty-based respect for subsidiarity and national identities;
- strengthening the role national parliaments by improving their participation in the EU affairs.
It is important that the exercise during the CoFE is carried out in both directions: not only to discuss more Europe where it would bring added value, but also less Europe, to respect the subsidiarity principle where goes beyond what is necessary. The CoFE should provide the possibility to bring to an end the process of the competence creep in which the EU assumes new competences in a non-Treaty based manner. It is epitomized by the long-established practice to use the crises to seize more competences for the EU institutions.
The management of Covid-19 crisis by the EU has made it clear that most efficient solutions come from acting in line with the principle of subsidiarity, thus as close as possible to the citizens. The Commission’s initiative to coordinate the efforts across the EU to fight pandemic has to be recognized. However, at the same time, the Commission’s performance was suboptimal and it was not an effect of insufficient competences, but infective use of the current ones. Therefore, postulates to transfer more competences in the health policy to EU are unfounded.
The only way to preserve the European project is to listen to the voice of European citizens who wish to be ‘united in diversity’, and let them take the – maximum advantage of possibilities offered by the principle of the subsidiarity and proportionality. That will allow the EU to be closer to its citizens and to respond to their real needs and problems.
Institutional Reform: the importance of focusing on core tasks that add value:
Following-up on the conclusions from the report of Commission’s ‘Task Force on Subsidiarity, Proportionality and Doing Less More Efficiently’, rather than discussing institutional matters at the CoFE, a discussion should be held on how the EU can act most effectively, within its competences, in the domains where it generates a clear added value.
The role of national parliaments and national Constitutional Courts in safeguarding the respect for subsidiarity:
One should bear in mind that ‘the Community was founded on the fundamental principle on indirect administration, which is itself based on the political philosophy of subsidiarity’[3]. In other words, as stipulated in art. 4(3) TEU and art. 291 (1) TFEU the Member States are the only ones to have power to implement the European law, and that other institutions, such us the Commission or the Court of Justice, can only supervise. The EU does not have ‘power of implementation of laws through executive measures’[4], as it is not a federation. The Treaties remain very clear about the principle of ‘indirect administration’, and art. 197 (2) TFEU stipulates that ‘The Union may support the efforts of Member States to improve their administrative capacity to implement Union law’. It clearly shows that an excessive centralisation goes explicitly against the spirit of the Treaties, therefore against the principle of subsidiarity and proportionality. Although subsidiarity and federalism are strongly intertwined in the federal states’ systems, the EU system is much more complex and it is undergoing constant evolution, thus the subsidiarity principle should be correctly and fully applied. It is crucial to ensure more equilibrated multilevel governance system equipped with checks and balances, thus allowing to prevent its excessive centralization at the expense of keeping it close to citizens.
Currently, national, regional and local authorities are not sufficiently involved in the EU policy-making processes, and as a result are under-committed. Taking into account the Treaty obligation, enshrined in art. 4 ( 2) TEU to respect the national identities of the Member States, more should be done to boost the participation of national, regional and local authorities in EU policy making. Particularly, the Commission should reflect on new means of involving and better associating national parliaments throughout the entire EU policy cycle, especially when shared competences are at stake. The Commission ought to respect the principles of subsidiarity and proportionality with more strength. Moreover, there is a need for stronger culture of subsidiarity to better acknowledge the policy areas that should be tackled on a national level and as close to the people as possible, as well as the domains where the EU proves to have scale benefits and a clear added value.
Art. 4(2) TUE clearly underlines the political and constitutional dimensions of national identity when it stipulates that ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. (…)’. Thus, acting in the spirit of subsidiarity obliges the EU institutions to take into account in their decision making the variety of constitutional identities in the EU and to work out relevant practices to foster dialogue, manage disputes, and alleviate tensions in the mutual relations.
Given the numerous tensions between the EU and the Member States, it has to be underlined that Member States’ institutions, and in particular national constitutional courts safeguard the Treaty-based respect for national identities. Such respect is additionally strengthened by the principles of subsidiarity and proportionality as they offer a valuable perspective for establishing more effective and resilient mechanisms to improve the functioning of the EU.
In order to mitigate potential conflicts between the Court of Justice of the EU and national constitutional courts, the CJEU should be obliged to engage in a dialogue and request a preliminary opinion from a national constitutional court in case when a given Member States refers to its constitutional identity. Introduction of such a mechanism will guarantee that the judicial dialogue will be a truly two-sided process that would contribute to the development and strengthening of the EU’s judicial area.
United in diversity: the role of Member States and their institutions:
The role of national parliaments and national Constitutional Courts is essential, alongside the European Parliament, in securing the democratic legitimacy of the EU and in promoting its pluralism and diversity and in granting its constitutional functioning. The Commission should improve current EU policymaking in order to strengthen the legitimacy of EU actions and to respect the exclusive competences of the Member States, fully respecting the conferral principle.
Avenues to be explored:
- Need for a comprehensive review of EU’s policies
A comprehensive review of EU’s policies has to be carried out with the aim to scrutinize their conformity with the principles of subsidiarity and proportionality. Furthermore, a mechanism of periodical annual review of policies should be introduced with a view to prevent violations of subsidiarity and proportionality principles.
2. Importance of balance among the EU institutions
The European Parliament is not the only institution composed of representatives directly elected by citizens. The Council constitutes also an essential link between the EU and Members States. In compliance with the principles of subsidiarity and proportionality, it is important to preserve the balance among the EU institutions. Being directly issued from the democratic vote, and representing the voice of the citizens, they are naturally best placed to ensure the respect of the subsidiarity and proportionality by preventing other institutions from capturing of competences and ensuring that the EU competences are exercised on the closest level to the citizens.
3. More attention to active subsidiarity and proportionality in the EU legislative process
Any EU’s legislative impact assessment in its early stage should include an obligatory examination of the conformity of legislative proposals or drafts of other policies and programs with the principles of subsidiarity and proportionality. Such examination would conclude in either granting or denying a ‘subsidiarity and proportionality seal’ indicating that given proposal has been positively tested and, thus legislative process is allowed to carry on. To achieve that goal, common guidelines should be established that would include criteria and indicated the procedure to assess the conformity of legislative proposals or drafts of other policies and programs with the principles of subsidiarity and proportionality. Moreover, and as a complementary measure, the assessment of the ‘subsidiarity value’ should be introduced in the EU legislative process in order to select the best governance structure of the most effective policy tool with an aim to achieve best possible results.
There is a need to improve the quality of impact assessments carried out by the Commission, particularly by better reflection of the territorial (regional) effects and distributional effects of the planned actions. This will allow for a more complete assessment of the impact of the regulation not only on an EU-wide basis, but also on a national and regional basis, in order to improve the quality of decision-making in the EU. The implementation of this approach would respond to Member States’ long-standing expectations of the need to assess the territorially differentiated distribution of the effects of new legislative proposals of the Commission.
Greater consideration should be given to aspects of subsidiarity, proportionality and legislative density in the evaluation process of existing EU regulations under the Regulatory Fitness and Performance Programme (REFIT). It is also suitable to extend the scope of this evaluation to include delegated and implementing acts, the provisions of which may in many cases be crucial for the implementation of EU law.
The European Parliament should enhance its ability to examine the legislative acts with a view of ensuring their compliance with principles of subsidiarity and proportionality. Thus, the Parliament should amend its Rule 42 of the Rules of Procedure to guarantee the stricter observance of the said principles.
5. Establishment of a separate Subsidiarity chamber, composed of presidents of national constitutional courts, in the Court of Justice to monitor EU legislation
Due to the fact that the Court of Justice has never struck down a measure for breaching the subsidiarity principle, establishment of a separate Subsidiarity chamber, composed of presidents of national constitutional courts, should be a proper response to overcome this political bias and improve the quality of legislation reviews.
6. Strengthening the role of national parliaments
One of the principal methods of improving the mechanism of monitoring the compliance of draft EU legislation with the principle of subsidiarity should focus on strengthening the role of Member States’ parliaments in the EU decision-making, in particular by enabling them to exercise more effective scrutiny of the compliance of EU law with the principle of subsidiarity.
Current policy-making processes need to be improved, leaving sufficient room for decision-making at other levels. The intention must be to ensure that national, regional and local authorities contribute more effectively to the EU policy-making and the drafting of legislation. More participation of these authorities in policy design and implementation, in accordance with the principle of multi-level governance, encourages the development of a more ‘active subsidiarity’.
a) Extension of consultation period for national parliaments
The current eight-week period for national parliaments to issue reasoned opinions should be extended to twelve weeks (in case of Treaty change) starting from the day they receive the EU’s proposals, in order to enable them to assess more effectively the approximately five hundred draft EU acts received each year (the deadline of twelve weeks should be also granted to the Commission for a reply). The additional time would allow national parliaments to exert a proper ex ante and ex post scrutiny of their governments’ actions in the Council, as parliaments would have the opportunity to prepare more effectively the mandates for all files of major significance and for those relevant to the national budget (i.e. the European semester), and governments would be able to seek the parliamentary mandates at the latest prior to the conclusion of a first-reading agreement between the Council and the European Parliament. Furthermore, in order to facilitate the legislative process the EC should inform national parliaments well in advance about its legislative proposals
b) Introduction of a politically binding green card mechanism
The Commission should consider as politically binding a reasoned opinion or a resolution calling for a proposal initiative of an EU act if it has reached the threshold of 1/3 of national parliaments.
c) Introduction of a politically binding red card mechanism
The current yellow and orange cards can too easily be dismissed by the Commission. A red card could be more effective. Therefore, the Commission should consider as politically binding any reasoned opinion on the non-compliance with the principle of subsidiarity if it has reached the threshold of 60 percent of national parliaments and, consequently, the Commission should instantly and completely remove the challenged draft act. The introduction of such a mechanism does not require amending the Treaties, as it could be based on a political agreement between Member States.
d) Introduction of a politically binding late card mechanism
It would provide the national parliaments with the opportunity to voice their concerns at a later stage of the ordinary legislative procedure. The reason for this measure is strengthening democracy by taking into account reality, i.e. that national debates very often start when the legislative process is being finalised on the EU level.
7. Efficient implementation of other recommendations proposed by the ‘Task Force on Subsidiarity, Proportionality and Doing Less More Efficiently’
First of all, the concept of active subsidiarity should be comprehensively implemented. Moreover, the EU institutions and national parliaments should use a common method for assessing issues related to the principle of subsidiarity, the principle of proportionality and the legal basis of EU legislation. In order to encourage the development of a common understanding of those principles, the European Parliament and other EU institutions should organize exchanges of permanent staff between those institutions and the national parliaments, which will provide basis for future cooperation and better legislation.
The Commission should take account of reasoned opinions received from national parliaments in the Commission’s annual reports on the principles of subsidiarity and proportionality. The Commission should also make available to the Council and the Parliament during the legislative process information on objections raised in case when national parliaments submit a significant number of reasoned opinions on a given draft legislation.
In order to apply “Doing less, more effectively” approach, the EC should prioritize the use of directives over regulations. Moreover, the directives should be formulated in such a way to provide a sufficient room for Member States to take into consideration the variety of setting at the lower levels of governance.
Conclusion:
In order to foster democracy in EU, there is a need to review, restore, and enhance the treaty-based principles of subsidiarity, proportionality, and proximity and improve their implementation.
[1] The report of the ‘Task Force on Subsidiarity, Proportionality and “Doing Less More Efficiently”, report-task-force-subsidiarity-proportionality-and-doing-less-more-efficiently_en.pdf (europa.eu), 2018
[2] Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and The Committee of The Regions – The principles of subsidiarity and proportionality: Strengthening their role in the EU’s policymaking (COM/2018/703 final), https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A52018DC0703, 2018
[3] “The Lisbon Treaty, a Legal and Political Analysis”, Jean-Claude Piris, Cambridge University Press, 2010, p. 97
[4] Ibid, p. 97.
Annex I. Overview of proposals of the European Parliament concerning the principles of subsidiarity and proportionality
| ● Resolution of 16 February 2017 on improving the functioning of the European Union building on the potential of the Lisbon Treaty (2014/2249(INI)):
– suggested flexibility regarding the date of transmission of draft legislative acts enshrined in the Protocol, and called on the Commission to improve the quality of its responses to reasoned opinions; – stated that the practical cooperation between national parliaments needs to be strengthened, inter alia to enable them, in close cooperation among themselves, to reach the necessary quorum under art. 7(3) of Protocol No 2 on the application of the principles of subsidiarity and proportionality in case of an alleged breach. |
| ● Resolutions of 17 May 2017 on the Annual report 2014 (2015/2283(INI)) and Resolution of 12 April 2016 on the Annual reports 2012-2013 (2014/2252(INI) called among other for:
– the Commission to improve its explanatory statements on subsidiarity and proportionality in certain of its legislative proposals to facilitate the examination of the proposals carried out by national Parliaments; – the extension of the scope of the subsidiarity control mechanism proposed by some national parliaments; suggestion to include the compliance of proposals with proportionality within the scope of reasoned opinions; – possible Treaties’ revisions: extension of reasoned opinions’ scope to the assessment of proportionality; thresholds of national parliaments responses required to trigger ‘yellow card’ or ‘orange card’ procedures; extension of the time period of eight-week in which reasoned opinions can be issued on the grounds of time constraints (i.e. natural disaster or recess period) in a view of a fair balance between the right of national Parliaments to raise objections on subsidiarity grounds and the efficiency of the Union in responding to citizens’ demands; – the introduction of a ‘green card’ mechanism as an instrument to improve the political dialogue aimed at allowing national parliaments to suggest legislative initiatives to the Commission; – development of a mechanism to improve the participation of national Parliaments in the EU legislative process by creating tools permitting information exchange such as IT platforms which EU citizens can have access to. |
| ● Resolution of 18 April 2018 on the Annual Reports 2015-2016 on subsidiarity and proportionality (2017/2010(INI)), which presented a different view concerning the need for the reform of the subsidiarity and proportionality procedure, than the above two mentioned resolutions. The report stated among other that:
– the full use of the existing tools to monitor the application of subsidiarity and proportionality is encouraged rather than creating even more complex administrative structures and lengthy procedures in times; – any improvement to the subsidiarity control mechanism should not entail Treaty change thus the extension of the eight-week time limit period proposed by some national Parliaments, which necessarily results in an amendment of the Treaties, is not deemed necessary; – the use of yellow card procedures show that the system functions and that national Parliaments have all the instruments to take part to the subsidiarity debate in a easily and timely manner; – no need to create new institutional and administrative structures unnecessarily complicating the process: national Parliaments already play a constructive role as proven by the two first green card initiatives signed in 2015 on food waste and in 2016 on corporate social responsibility respectively, the former then reflected in the revised Circular Economy package adopted by the Commission in 2015. |
| ● Resolution of 19 April 2018 on the implementation of the Treaty provisions concerning national parliaments (2016/2149(INI)):
– acknowledged the existing procedural shortcoming of the Early Warning System, which could be reformed within the current constitutional framework; – called on the Commission, in its responses to reasoned opinions issued within or outside the framework of the Early Warning System, also to address proportionality, and, where appropriate, any concerns about proposed policy options, in addition to its interpretation of the principle of subsidiarity; – suggested the full use of the system, whereby national parliaments can submit constructive proposals to the Commission with the aim of positively influencing the European debate and the Commission’s power of initiative.
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