revision - Subsidiarity and proportionality.docx

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Subsidiarity and proportionality

Protocol on the application of the principles of subsidiarity and proportionality:any national parliament or

any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft

legislative act, in the official languages of the Union, send to the Presidents of the European parliament, the

Council and the Commission a reasoned opinion stating why it considers that the draft in question does not

comply with the principle of subsidiarity.

- National parliaments given 2 votes eachProtocol on the application of the principles of subsidiarity and proportionality,Article 7(2) wherer

reasoned opinions on a draft legistaltive acts non-complaince with the principles of subsidiarity represent at

least 1/3 of all the votes allocated to the national Parliaments, the draft must be reviewed. This thereshold

shall be 1/4 in the case of a draft legislative act submitted on the basis of Article 76 TFEU on the area of

freedom, security and justice. After such review, the Comission or, where appropriate, the group of Memebers

States, The European Parliament, the Court of Justice, the European Central Bank or the European Investment

Bank, if the draft legislative act originated from them, may decided to maintain, amend or withdraw the draft.

Reasons must be given for the decision

- Concern: National parliaments can only issue yellow card- Yello card = requiring to reconsider proposal- Not a red card= requiring abandonment- Only optional involvement of regional assemblies consulted only if respective national parliament

decides

- Criticisms formalistic- Politically inconceivable for commission ornational ggives to ignores 1/3/ of national parliaments- Problem: thereshold of 1/3 or 1/4- Ususally EU legislation wont cross some huge line but rather threaten a tradition important to just

one country idiosyncratic nature

Orange card introduced by Lisbon Treaty

Protocol on the application of the principles of subsidiarity and proportionality,Article 7(3):furthermore,

under the ordinary legislative procedure, where reasoned opinions on the non-compliance of a proposal for a

legislative act with the principles of subsidiarity represent at least a simple majority of the votes allocated to

the national parliaments, the proposal must be reviewed. After such review, the commission may decide to

maintain, amend or withdraw the proposal.

If it chooses to maintain the proposal, the Commission will have, in a reasoned opinion, to justify why it

considers that the proposal complies with the principle of subsidiarity. This reasoned opinion, as well as the

reasoned opinions of the national Parliaments, will have to be submitted to the Unions legislator, for

consideration in the procedure:

a) before concluding the first reading, the legislator ( the EP and the Council) shall consider whether thelegislative proposal is compatible with the principle of subsidiarity, taking particular account of the

reasons expressed and shared by the majority of national parliaments as well as the reasoned opinion

of the Commission;

b) if, by a majority of 55% of the members of the Council or a majority of the votes cast in the EuropeanParliament, the legislator is of the opinion that the proposal is not compatible with the principal of

subsidiarity, the legislative proposal shall not be given further consideration


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- Procedure seems unnecessarycommission wouldnt take proposal where over half of nationalparliaments opposed

- Only applies to ordinary legislative procedure but surely if problem with Commission discretion,surely it would affect institutions role in all legislative procedures.

- Positive majority needed high threshold means measure could be adopted despite fact thatmajority of national parliaments and half of members of Council thought incompatible

- Protocol looks like making of COSAC- Since 2007 more proactive and salient forum for securing subsidiarity principle.- Coordinated checks by national parliaments where Commission proposals appear to touch particular

national sensitivities.

Subsidiarity and Proportionality

Article 5(3), (4) TEU

Under principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act

only if and insofar as the objective of the proposed action cannot be sufficiently achieved by the MembersStates, 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.

- Preamble of treaty MS resolved to continue process of creating an ever closer union among thepeoples of Europe in which decisions are taken as closely as possible to the citizen in accordance with

the principle of subsidiarity

- Local or regional decisions are always better- The closer people are to decisions, the more they will be able to participate and more responsive to

the peoples concerns the decisions will be

- Subsidiarity about when to intervene- Proportionality about quality of intervention

1. Necessary for achieving objectives in questions2. Of several equally suitable measures, the one chosen should be that which imposes the

fewest constrains on individuals

3. Means should not be out of proportion to the ends sought- Subsidiarity and proportionality different but have been conflated by governance agenda- Cn see this in Article 5protocol on the application of principles of subsidiarity and proportionality -

Union has to justify relative efficacy of EU legislation vis--vis- its national or regional alternatives. But

also need to ensure financial and administrative impacts minimise and attention given to legislative

disturbance

Subsidiarity

2 logics

1. Union should not intrude on national,, regional and local political and cultural identities policinglimit of EU legislation. First made a Treaty provision in Maastricht

Article 5(3) test of local self government not efficiency of measure but related more to how the

measure forms part of tha national cultural identity eg left hand drive

2. Comparative federalism test of comparative efficiencyArticle 5(3) TEU whether objects of a measure can, by reasons of its scale or effectsm be better

achieved at EU level.

Highly centralising cos can always say one standard better than many- Schapf subsiidairty principles puts on palce a bipoal consitiutional logic


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- Court has yet to annul a measure as in breach of the principle- Netherlands v EP and Council

Example of lightness of touch Case on patents

- Commentators suggested ways to compensate- Weiler:

creation of European Constitutional Court with judges from European constitutional courts presided over by president of ECJ idea that only most senior should be able to police limites of community powers

- Lon Brittan: creation of chamber of national parliamentarians who would vet Unions legislative

proposals on grounds of subsidiairty before thye became law

taken up by Treaty of Lisbon central function of national parliaments is now to patrol Commision drafts for verification

with principle of subsidiarity

wait and see how well it works- Article 5 requires justifictionin regards to principles judges could have this role- Could see reasoning and justification easily cohenerncy, consistency etc- BUT to what extent will theyw ant to question reasons of political institutions- German case regarding Deposit Guarantee Directive [1997]

Express reference to principles werent required Worrying that will accept it was considered even if no evidence to support that Dashwood- clear for something to be annulled on that basis it would have to be

extreme

Proportionality

- Article 5(4) TEU content and form of Union action shall not exceed what is necessary to achieveobjectives of treaty

- Case law has done a lot to it though- ex p Fedesa [1990]modern formulation when there is a choice between several

appropriate measures recourse must be had to the least onerous, and the disadv caused

must not be disproportionate to the aims pursued.

- from this ^ doctrine probably entails 3 part test1. is the measure suitable to achieve legitimate aim2. is the measure necessary to achieve that aim3. does the measure have an excessive effect on the applicants interests? (Harbo

wording: measure, although suitable and necessary, nevertheless imposes and

excessive burden on individual stricto sensu test arguably undermines

proportionality test because meant to give structure and be objective but then this

test means court can decide either way)

- Tridmas: argues courts dont distinguish between (2) and (3). Says just 2 tests1) Test of suitability2) Test of necessity

- More important is what test actually enables courts to do- Tridmas:

Enables court to review legality and to some extent merits of legislative and administrative measures


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Thats why perceived to be most far-reaching ground of review most potentweapon

Depends how strictly applied In community law, proportionality flexible principles

- Marked contrast in case law between application with regard to MS and with regard to EUinstitutions

- MS= strict test- EU institutions = more lenient

Ex parte Fedesa [1990] 0 In agricultural policy Community legislature has discretionary power which

corresponds to the political responsibilities given to it by the Treaty so the legality of

a measure adopted in that sphere can be affected only if the measure if manifestly

inappropriate

manifestly inappropriate = weak test- Impact of proportionality test probably felt more in change of legislative culture- Inter-institutional Agreement on Better Law making 2003 EU institutions committed

themselves to move away from process of law making to regulation

Commission will ensure any use of co-regulation or self-regulation is alwaysconsistent with community law and transparent and represents parties involved

and added value of general interest

Must ensure swift and flexible regulation which does not affect principles ofcompetition or unity of internal market

Co-regulation Self- regulation

- Justification for them is that they enable market participant to decide the level and form ofregulation in a manner suitable for them and in a way that minimises adjustment and

financial costs

- Concerns that checks and balance lost- Chalmers [2005-6]:

1. How effectively protect public goods and how much ambitious they are in doing it2. Protection of credential goods deal with problems of asymmetries of info. In

contrast to parliamentary statutes or case law, opacity of her entitlements

undermines her ability to feel comfortable about and trust her surrounding

environment, and her sense of social status, self-esteems and confidence to makechoices.

3. Distributive asymmetriesSubsidiarity, proportionality and better regulation

- 2005 Communication adopted with objective to establish European regulatory frameworkthat fulfils the highest standards of law making respecting the principles of subsidiarity and

proportionality - want to simplify EU law because concern that could generate unnecessary

costs, restricts business activity and limit efficiency and innovation.

-

But better regulation is not de-regulation

Documents

revision - Subsidiarity and proportionality.docx