National Parliaments in the EU: Biting the Subsidiarity Bait?

—Davor Jancic, British Academy Newton Fellow, Department of Law, London School of Economics and Political Science

The parliamentarization of the European Union has been hailed as one of the hallmarks of the Treaty of Lisbon. Besides empowering the European Parliament, the Member States’ national parliaments have been endowed with a series of competences in EU decision making. For the first time in the history of European integration national parliaments were mentioned in the texts of the Treaties proper. These competences refer to both primary and secondary EU law. When it comes to primary EU law, national parliaments take part in ordinary and simplified treaty revision procedures. Since these are not routine events, their competences concerning secondary EU law are more important for the day-to-day operation of the Union. Among them, the central one is that of subsidiarity policing.[i] 

This competence invites domestic legislatures to monitor the EU policy-making process and ascertain whether the Commission’s draft EU legislation complies with the principle of subsidiarity. This principle requires EU action to be taken only if and in so far as certain goals cannot sufficiently be achieved by the Member States acting on their own but can instead be better achieved by joint action at the EU level. Subsidiarity only applies in the fields of shared competences, where it is not a priori certain who of the two entities should act—the Member States or the EU. This question does not arise when competence in a certain policy field pertains exclusively to either the Member States (such as e.g. national security and maintenance of law and order) or the EU (such as e.g. competition law and monetary policy).

Where subsidiarity does apply, MPs therefore ought to check whether the EU should act or not. This is done through the so-called early warning mechanism, which requests from all national parliaments to send their reasoned opinions on the conformity of draft EU legislation with subsidiarity to EU institutions. Each national parliament, regardless of its composition (unicameral, bicameral or multicameral), is allocated two votes. This mechanism only has legal effect on the Commission if the number of the reasoned opinions submitted reaches the prescribed thresholds, commonly referred to as the “yellow card” (1/4 of the votes for draft EU legislation in the Area of Freedom Security and Justice or 1/3 in all other fields) or “orange card” (1/2 of the votes). Whatever the color of the card, the Commission is only obliged to abandon its legislative initiative on the intervention of either arm of the EU legislature—the Council or the European Parliament—acting by more than a half of the votes. However, this would stop the legislative procedure anyway since such high opposition equals the rejection of the proposal.[ii]

The yellow card has so far been raised once regarding the draft Monti II Regulation, which sought to regulate the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services.[iii] As the main flaws of the Proposal, most parliamentary chambers cited the EU’s inappropriate use of the flexibility clause (Article 352 TFEU) as the legal basis for legislative action and the EU’s encroachment on national labour law, which most of them perceived to be the domaine réservé of the Member States. The Commission consequently withdrew the Proposal. Strikingly, however, the Commission declared, upon examining all the reasoned opinions, that subsidiarity had not been breached. Instead, the Proposal was discontinued because it was not likely to garner necessary political support for its adoption. Therefore, the Commission focused not on the national parliaments’ warnings, but on the stance that the Council and the European Parliament would probably have taken in this regard. The politico-legal utility of the early warning mechanism can thus be questioned. 

Subsidiarity monitoring was enacted in the Treaties as the lowest common denominator of agreement between the EU and the Member States.[iv] This prerogative does not give national parliaments a say in the shaping of the contents of EU policies. It only enables them to issue a substantiated yes-or-no “verdict” on whether the EU should exercise the competence that it possesses alongside the Member States. It does not hence entitle them to pronounce themselves on how the EU should act and it is precisely this question that most affects the citizens’ lives and welfare.[v] If, for instance, the EU used its shared competence to act in an exclusively domestic matter in a way that is politically acceptable or even desired by the majority of the Member States and their parliaments from the point of view of the outcomes of such action, this would perhaps even justify the breach of subsidiarity.[vi] What is not justified is the transformation of parliaments into legislative dispatchers, giving red and green signals to the European ‘train’ without having any meaningful means to affect the ‘schedule’ itself. The argument here is that it is the substance of policies that should guide national parliamentary scrutiny of EU decision making.

Parliaments are intrinsically political institutions and their chief task ought to be to scrutinise the policies that will be applied to the citizens. With the EU flooding the parliamentary gates with ever greater legislative activity, this task is being modified from policy shaping to gatekeeping. This can be a dangerous development as it can lead to the partial abdication of national parliaments from the most inherent of its competences: the political assessment of the preferences, values and interests upheld by law, whatever its origin.[vii] Subsidiarity may thus appear as a distraction from, and certainly as a restriction of, the classic parliamentary business. With more and more national parliaments participating in the early warning mechanism, one could argue that the directly elected domestic representative bodies have bitten the subsidiarity bait. This is all the more precarious at a time of the ongoing sovereign debt crisis in the Eurozone, which poses a serious additional constraint on the scope of domestic parliamentary activity. While Eurozone Member States and their national parliaments already have no say on monetary policy, because it is an exclusive EU competence, they are also increasingly forced to adjust their fiscal policies in accordance with decisions made by the European Council and Eurozone summits. 

There is one important advantage of the early warning mechanism, however. Involvement in this otherwise narrowly crafted procedure has yielded very positive results in terms of alerting national parliaments to the impact and ubiquity of EU law. Many a national parliament has become more active in performing the scrutiny of EU affairs thanks to subsidiarity policing. The experience of the Portuguese Parliament is the clearest example thereof.[viii] The early warning mechanism is hence more of an instrument of parliamentary activation than that of genuine parliamentary participation. The broader sibling mechanism called the Barroso Initiative, which nurtures a political dialogue between the Commission and national parliaments on matters beyond subsidiarity, furnishes a better platform for the discussion of EU policies. Yet this Initiative is informal and non-binding in its entirety.[ix]

While it is valuable to provide the EU with political views on whether it should or should not act, it would be even more valuable for national parliaments to concentrate on the substantive issues decided at the EU level. For better or worse, the early warning mechanism does not serve this purpose. Quite to the contrary, it may thwart its fulfillment. 

Suggested Citation: Davor Jancic, National Parliaments in the EU: Biting the Subsidiarity Bait?, Int’l J. Const. L. Blog, September 25, 2013,  available at: http://www.iconnectblog.com/2013/09/national-parliaments-in-the-eu-biting-the-subsidiarity-bait