On the application of the Treaty provisions related to the principles of subsidiarity and proportionality and the role of national parliaments in the EU legislative process

D.whereas the principles of subsidiarity and proportionality were introduced in the Maastricht Treaty to address concerns among the Member States about potential overreach by the EU; whereas the role of the national parliaments was strengthened by Protocol No 2 to the Treaties, added by the Treaty of Lisbon, with the introduction of an early warning system (EWS);

E.whereas 577 subsidiarity checks and reasoned opinions by national parliaments, 3 803 contributions from national parliaments, three yellow cards and no orange cards have been submitted since the entry into force of the Lisbon Treaty in 2009;

F.whereas only the first of the three yellow card procedures has led to the withdrawal of a proposal, the second led to enhanced cooperation between 20 Member States instead of unanimous implementation, and the third had no effect, despite a record number of 14 reasoned opinions submitted by parliaments in 11 Member States;

G.whereas the EWS has only led to two procedures before the Court of Justice of the European Union (CJEU) to assess the correct application of the principles of subsidiarity and proportionality; whereas the CJEU ruled in both cases that there had been no violation of the principles of subsidiarity and proportionality;

H.whereas a stricter adherence to the principles of subsidiarity and proportionality by the Commission can assist in alleviating regulatory burdens and will ultimately lead to better lawmaking;

1.Reaffirms the fundamental importance of the principles of subsidiarity and proportionality for the EU’s legal and institutional framework; recalls that respect for the principles of subsidiarity and proportionality is essential for safeguarding the sovereignty and competences of the Member States;

2.Stresses that the underlying rationale behind the principle of subsidiarity is that decisions should be made as close as possible to the citizens, and that actions should be taken at the lowest level of government capable of effectively addressing an issue;

Role of the Commission

3.Calls on the Commission to show restraint when proposing legislation that falls under shared competences; calls on the Commission to more thoroughly define the legal basis for EU legislation, and not to use a different legal basis to engage in legislating when the matter falls within the competence of the Member States; calls on the Commission to refrain from proposing legislation in areas of exclusive competence of the Member States if such proposals would go beyond coordination or supporting the Member States; considers that the Commission should only propose legislation on these matters at the explicit request of the Member States;

4.Stresses that any legislative initiative by the Commission falling under shared competences must be strictly framed by a thorough ex ante impact assessment, demonstrating in a quantified and reasoned manner the impossibility of effective action at the national level; demands that the Commission expressly justify, through a comparative analysis between different Member States, that legislative harmonisation at EU level brings substantial added value and does not constitute a disguised extension of competence; insists on the need for more rigorous control of the misuse of legal bases under Article 352 TFEU and calls for the establishment of a mechanism for prior validation by national parliaments before the adoption of any legislative proposal in an area of shared competence;

5.Shares the concerns expressed unanimously by the French Senate’s European Affairs Committee regarding the weak legal foundation for certain EU legislative initiatives, the increasing tendency to favour regulations over directives, and the excessive use of implementing or delegated acts;

6.Recalls that Article 5 of Protocol No 2 to the Treaties requires the Commission to provide a detailed appraisal of whether it has complied with the principles of subsidiarity and proportionality; urges the Commission to conduct a more systematic analysis of subsidiarity and proportionality in its assessment of legislative proposals; recalls that subsidiarity checks are essential for good governance and should not be reduced to a mere tick-box exercise; calls for greater transparency in applying these principles, with each legislative proposal providing detailed justifications for EU intervention, the added value of the action and the proportionality of measures in relation to the objectives;

7.Notes that the Commission’s responses to reasoned opinions are often perceived as dismissive, especially when they are not supported by a large number of national parliaments; notes that this risks overlooking the specific situation in individual Member States in favour of a ‘one-size-fits-all’ approach, which does not take into account the diversity of legal traditions and regional differences across the EU; expresses concern about the fact that there is little evidence that the Commission significantly alters its proposals as a result of reasoned opinions submitted by national parliaments;

8.Points out that national parliaments have rarely used the ‘yellow card’ or ‘orange card’ procedures; underscores that this is not because of disinterest on the part of national parliaments, but because of the lack of transparency in EU lawmaking, and more specifically, the low probability of success in having legislative proposals amended or withdrawn;

9.Welcomes the creation of informal procedures to enhance coordination between the Commission and national parliaments, such as the political dialogue, the rapporteur dialogue and the website entitled ‘National Parliament opinions and Commissions replies’; urges the Commission to explore avenues to further improve consultation with national parliaments on subsidiarity concerns, for example by establishing a ‘single subsidiarity hub’ (SSH) based on the platform for EU Interparliamentary Exchange (IPEX), where reasoned opinions as well as contributions, opinions of the European Committee of the Regions, answers from the Commission, resolutions of the European Parliament, etc. would be collected and freely accessible; considers that the creation of an SSH would be a suitable place for the Member States to request the Commission to propose supporting or coordinating legislation in an area of exclusive competence of the Member States;

10.Notes the concerns raised regarding the Commission’s reactive approach to engaging with national parliaments and that this engagement is limited and takes place too late in the legislative process, which in turn limits the ability of national parliaments to influence legislative proposals; urges the Commission to invite input from national parliaments at an earlier stage, more specifically, when consultations take place;

11.Considers that the Commission should focus on coordinating and facilitating the work of national authorities, rather than creating additional supranational agencies or proposing EU legislation on matters that could be better managed at national or regional level;

Role of national parliaments

12.Emphasises that the involvement of national parliaments in the EU’s legislative process will enhance the legitimacy of its legislative initiatives; stresses the need for continued scrutiny of EU legislation through the mechanisms provided for in the Treaties, including the ‘yellow card’ and ‘orange card’ procedures; encourages national parliaments to enhance their capacity to scrutinise and challenge EU action effectively under the subsidiarity and proportionality principles, ensuring that EU legislative initiatives respect the balance and distribution of powers between the EU and its Member States;

13.Believes that national parliaments should be given a more positive and proactive role by, for instance, creating a ‘green card’ that would operate with lower thresholds; further calls for the extension, in the context of the next revision of the Treaties, of the current eight-week deadline for national parliaments to submit reasoned opinions under Article 4 of Protocol No 1 to twelve weeks;

14.Considers that the ‘yellow card’ mechanism has shown its limitations due to the lack of a binding effect on the Commission’s legislative proposals; proposes the introduction of a ‘red card’ mechanism, which, by qualified majority of the national parliaments (i.e. 55 % of the Member States representing at least 65 % of the EU population, in accordance with Article 238 TFEU), would automatically result in the withdrawal of the contested legislative proposal;

15.Emphasises the important role of regional and local communities and urges the Commission to explore ways in which their input can be better incorporated in legislative proposals;

16.Calls on the Commission, in line with the recommendations of the Draghi report, to launch an EU-wide investigation to identify and analyse the reasons behind the limited exercise of national parliaments’ scrutiny capacity in relation to subsidiarity;

Role of the CJEU

17.Stresses that, since its introduction as a general principle, the principle of subsidiarity has not been subject to intense judicial review by the CJEU; regrets that the Advocates General show little engagement with subsidiarity arguments in their opinions;

18.Warns that the CJEU’s apparent reluctance to enforce subsidiarity might cause reluctance on the part of the Member States to approach the CJEU in the first place; notes that the CJEU’s reluctance to substantively address subsidiarity concerns can add to the perception that the CJEU is biased in favour of the Commission, to the detriment of the Member States;

19.Echoes the criticism that the CJEU has interpreted EU competences too broadly and has been reluctant to strictly enforce subsidiarity, raising concerns of judicial activism; acknowledges that such interpretations may be perceived as advancing European integration at the expense of national sovereignty and the Member States’ ability to regulate matters beyond the scope of EU competence;

20.Insists that the CJEU is also bound by the principles of subsidiarity when interpreting matters of shared competences, since the act of judicial interpretation of legislation amounts to lawmaking;

21.Expresses concern regarding the CJEU’s interpretation that not taking into the account the particular situation of one or more of the Member States in the assessment of a legislative initiative does not constitute a violation of the principle of proportionality; insists that the individual particularities of the Member States are relevant for the purpose of drafting legislation and that proportionality should not only be applied to the EU as a whole;

22.Expresses concern about the CJEU’s judgment that the failure to carry out an impact assessment cannot be regarded as a breach of the principle of proportionality; calls on the Commission to carry out impact assessments without exception and ensure that legislative proposals do not go beyond the scope of the original impact assessment;

23.Calls on the Commission to conduct a survey among all legislative bodies in all Member States to assess their perception of the judicial independence of the CJEU, as well as their probability calculation of a successful appeal before the CJEU in matters regarding subsidiarity and proportionality;

Final observations

24.Calls for a clearer and more consistent definition and application of the principles of subsidiarity and proportionality, ensuring that all EU institutions apply a shared understanding of these fundamental principles in the legislative process; proposes the creation of a ‘subsidiarity court’ as part of any future Treaty revision process;

25.Demands greater transparency in the preparation of legislative proposals by the Commission, including earlier engagement with national parliaments and stakeholders to ensure subsidiarity concerns are adequately addressed;

26.Endorses the Draghi report’s conclusion that EU policy and legislative action should refocus on domains where the EU ‘truly’ has greater added value compared to national or sub-national policy action; further urges EU institutions to adopt a principle of self-restraint in policymaking by more carefully selecting future initiatives and streamlining existing legislation;

27.Reiterates that respect for the principles of subsidiarity and proportionality will facilitate better lawmaking and will reduce regulatory burdens and bureaucratic red tape; insists that if a legislative objective can be achieved at the local, regional or national level, the Commission should not propose legislation and that, in cases of uncertainty about the most appropriate level for action, there should be a rebuttable presumption in favour of lower levels of government;

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28.Instructs its President to forward this resolution to the Council and the Commission.