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The Conduct of subsidiarity checks of EU legislative proposals by national Parliaments: analysis,

observations and practical recommendations

Philipp Kiiver - Nov 2011

Purpose of article:

Look at procedural details of system admissibility of reasoned opinions Substantiveness of opinions Formulation of policy recommendations what else to take into account

National parliaments n the European Treaties

- Already some experience through COSAC starting in 2004Subsidiarity check: procedural framework

- Not just a loose exchange of opinions- Legally formalized communication framework with rights and obligations, admissibility criteria and

deadlines

- Article 6 of Protocol no.2 to the TEU and the TFEU- Reasoned opinion must:

1. Originate in a national parliament or chamber Regional parliament? National parliament issue opinion on minority vote? Should allow this because

shouldnt regulate internal activities of national parliaments and how they submit

opinions

2. Refer to a draft legislative act Broader than seems includes Initiatives of a group of MS and the EP etc. Narrower green and white papers, amended drafts If commission, prompted by subsidiarity check, amends legislation, not object of

another subsidiarity check

- Commission committed to replying to all letters even if not about subsidiarity (part of dialogue) - Concerns letters where yellow/orange cards thresholds not metso thersholds not that important?- Even reply to early and late letters (past deadline)- 8 week period

clock starts ticking after last translation(can be difference of several weeks) August doesnt count (summer recess) Only applies to commission and not other initiators of legislative drafts Doesnt apply to other recess periods e.g. Christmas Article 4 of Protocol no.1 can override 8 week period so basically subsidiarity check

over (but reasons must be given)

3. Reasoned opinion must give reasons4. Allege breach of subsidiarity

Neat definition in Article 5(3) TEU But different parliaments think it means different thinsg

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Form and scope of reasoned opinions

Form

- Reluctant to outright say its a breach- Send positive opinions even though probably not technically possible to do so- When can it be considered negative also debatable- Commission doesnt make standpoint clear- COSAC secretariat plays it safeonly counts unequivocal nos- Argument that if broader of counting votes, yellow card would have been reached by now- Eg 2009 same objections as proper no vote but had formulated more cautiously or said it was

proportionality argument when actually subsidiarity (would have had 20 votes)

Scope

- Which principles relevant to subsidiarity check?- Based on reasoned opinions given, clear that should have broader scope- Chambers vary in how they formulate their reviews and how bound they feel by scope of subsidiarity.

So some frame it as much as possible in parallel to subsidiarity argument (Dutch)

- Lords and Bundesrat very political views expressed and often suggest very detailed amendment- Ultimately all political because why would any politician bother if it wasnt

Recommendations for members of national parliaments

1. Phrase objections to EU measures as far as possible in form of subsidiarity arguments even if onlypartly to do with it and to state explicitly that it is a reasoned opinion alleging breach

Otherwise danger commission will think its just part of political dialogue (barosso ratherthan EWM)

Much better and more interesting for news and politicians if can actually stop legislation2. Completely legitimate to declare an insufficient justification a procedural breach of the principle of

subsidiarity in particular ofArticle 5 of Protocol

3. Legality or competence can be brought under the subsidiarity check For example when internal-market directive threatens to unlawfully regulate aspect of

family law etc.

4. Even under a subsidiarity heading , a proposal can go too far (dont understand this)5. Surely legitimate to argue that an already existing international agreement makes EU action

superfluous so that it will not produce better action than on an individual state level

Conclusion

- Regarding form and scope of reasoned opinions, national parliaments still experimenting- compareeach others letters and observe different styles possible

- Commission also strict in assessing admissibility for such letters (though may just be doing thisbecause doesnt want national parliaments telling it what to do)

- Parliaments should seize media opportunity that comes with a yellow card