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EU decision-making procedures
The subsidiarity principle and the role of national parliaments
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Introduction
Application of the principle of subsidiarity
Protocol on the role of national parliaments
Summary table
The principle of subsidiarity regulates the exercise of powers. It is intended to determine whether the Union can intervene or should let the Member States take action. In accordance with this principle, the Union may intervene in areas which do not fall within its exclusive competence only insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The principle of proportionality is the second major principle governing the exercise of powers. By virtue of this principle, action taken by the Union, in terms of its form and content, does not exceed what is required to achieve the objectives set out in the Constitution.
The current Treaties stipulate that both principles must be applied by all the institutions. This is also stated in the text of the Constitution. However, the Constitutional Treaty introduces a major innovation in this regard, suggesting that the national parliaments should be directly involved in monitoring the proper application of the subsidiarity principle.
The Constitutional Treaty thus strengthens the application of the subsidiarity principle and the active role of national parliaments via:
- increased information and transparency in relation to national parliaments (forwarding of Commission proposals, etc.);
- the new role assigned to national parliaments, allowing them to deliver a reasoned opinion if they consider that the principle of subsidiarity has not been complied with (early warning system).
These new provisions allow the national parliaments to establish political control,
which ensures that the Commission does not take initiatives for which it is not competent,
while at the same time taking care not to prejudice its right of initiative or slow
down the legislative process.
Two protocols are attached to the Constitution which, to a large extent, incorporate
and amend the existing protocols introduced following the Amsterdam Treaty:
- Protocol on the role of national parliaments in the decision-making process;
- Protocol on the application of the principles of subsidiarity and proportionality.
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APPLICATION OF THE PRINCIPLE OF SUBSIDIARITY
The Constitution adapts the Protocol on the application of the principles of subsidiarity and proportionality, which was attached to the Treaty establishing the European Community (EC Treaty) in Amsterdam.
The main innovation is the creation of a system for monitoring the application of the principle of subsidiarity which for the first time directly involves the national parliaments. This allows the national parliaments to publicly notify the European institutions and their own government of any draft European legislative act which they feel does not comply with the principle of subsidiarity. They have six weeks to do so, starting from the date on which a draft European legislative act is forwarded.
Each national parliament will thus be able to review these drafts and submit a
reasoned opinion if it considers that the principle of subsidiarity has not been
complied with. If one third of the parliaments share the same view, the Commission
or the institution from which the draft legislative act originates must review its
proposal. At least a quarter of the parliaments must share the same view in the case
of proposals from the Commission or initiatives from a group of Member States concerning
the area of freedom, security and justice. Following this review, the Commission
or any of the other institutions concerned may decide to withdraw, maintain or amend
its proposal, and must give reasons for its decision.
The Protocol also gives national parliaments the right to bring actions before
the Court of Justice, via their Member State, on the grounds of infringement of the
principle of subsidiarity by a legislative act.
The Protocol confirms that draft European legislative acts must be justified with regard to the principle of subsidiarity. The Constitutional Treaty even recommends the use of a 'subsidiarity statement' containing a detailed assessment.
Finally, the Constitution stipulates that the Commission must simultaneously send all its draft legislative acts and its amended drafts to the national parliaments of the Member States and to the Union legislator. Upon adoption, legislative resolutions of the European Parliament and positions of the Council of Ministers must also be sent to the national parliaments of the Member States. It also provides that when, in cases of exceptional urgency, the Commission cannot conduct public consultations, it must give reasons for the decision in its proposal.
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PROTOCOL ON THE ROLE OF NATIONAL PARLIAMENTS
The Protocol on the role of national parliaments in the EU, which was annexed to the EC and EU Treaties in Amsterdam, has also been adapted to meet the need for greater transparency and more effective document transmission. It contains more precise obligations on the Commission, the Council of Ministers and the Court of Auditors in terms of the dissemination of information:
- In addition to forwarding directly all Commission consultation documents (green and white papers and communications), the Commission also sends the national parliaments "the annual legislative programme as well as any other instrument of legislative planning or policy strategy that it submits to the European Parliament and to the Council of Ministers". Moreover, the revised version of the Protocol asks that the Commission simultaneously send all its draft European legislative acts directly to the national parliaments and to the European Parliament and the Council.
- The Council of Ministers must send the agendas and minutes of its meetings to the Member States' governments and to the national parliaments; this is a new requirement. The Court of Auditors is also now required to send its annual report to national parliaments, for information. Other than in emergencies, a period of six weeks must be observed between a draft legislative act being sent to the national parliaments and being recorded in the Council's agenda. Moreover, a period of ten days is observed between the recording of the draft act in the Council's agenda and its adoption.
In terms of interparliamentary cooperation, no changes have been made concerning the role of the Conference of European Affairs Committees (COSAC). This Conference brings together members of national parliaments from the national parliamentary committees responsible for European affairs and continues to have the right to submit contributions, for example concerning subsidiarity, to the European Parliament, the Council and the Commission.
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| Articles | Subject | Comments |
|---|---|---|
| I-11 | Proportionality and subsidiarity | Major changes |
| Protocol on the role of national parliaments | Role of national parliaments | Major changes |
| Protocol on the application of the principles of subsidiarity and proportionality | Subsidiarity and role of national parliaments | Major changes |
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The fact sheets are not legally binding on the European Commission. They do not claim to be exhaustive and do not represent an official interpretation of the text of the Constitution.