Future EU: Subsidiarity 

Background :

The principle of subsidiarity means that what the lesser entity can do adequately should not be done by the greater entity unless it can do it better. Taken over into EU policies, it is used as an instrument for determining when the Union is to act in areas not coming under its exclusive competence.

The subsidiarity principle was first introduced in the the Treaty of Maastricht as a general principle applicable to all areas of non-exclusive competence. The Edinburgh European Council of 11-12 December 1992 set down a global approach for applying the principle of subsidiarity.

The Protocol also lays down obligations for the institutions, primarily for the Commission, which is required to substantiate its legislative proposals having regard to the principle of subsidiarity. The Commission is also required to submit an annual report on implementation of the subsidiarity principle (Article 5 of the Treaty) to the European Council, the European Parliament and the Council.

The issue of subsidiarity was discussed at the plenary session of the Convention on 3-4 October.

The Convention President, Valéry Giscard d'Estaing, tabled the draft proposal for a future EU Constitutional Treaty on 24 October 2002 (see

EurActiv 25 October 2002 ). His objective is to have the final proposal ready for the EU Summit in mid-2003.

Issues :

The European Convention set up a Working Group on the principle of subsidiarity, whose mandate is part of the process of examining the delimitation of competence between the European Union and the Member States, referred to in the Nice and Laeken Declarations on the future of the European Union.

The Working Group made the following proposals to the European Convention in its final report, adopted in September 2002:

1. reinforcing the taking into account and the application of the principle of subsidiarity by the institutions participating in the legislative process, (i.e. the European Parliament, Council and Commission) during the drafting and examination phase of the legislative act;
2. setting up an "early warning system" of a political nature, intended to reinforce the monitoring of compliance with the principle of subsidiarity by national parliaments;
3. broadening the possibility of referral to the Court of Justice for non-compliance with the principle of subsidiarity.

The Group felt that the principle of subsidiarity would be applied all the better the earlier it was taken into account in the legislative process. In drawing up its legislative proposals, the Commission should take account of reinforced and specific obligations concerning justification with regard to subsidiarity. Thus any legislative proposal should contain a subsidiarity sheet setting out circumstantiated aspects making it possible to appraise compliance with the principle of subsidiarity.

The presentation of the Commission's annual legislative programme would be an important occasion providing an opportunity for a preliminary debate on subsidiarity. The Group therefore proposes that that programme should be discussed by the European Parliament and national parliaments.

The Working Group also considered the possibility of the appointment, within the Commission, of a Mr or Mrs Subsidiarity , or of a Vice-President specifically responsible for ensuring his institution's compliance with the principle of subsidiarity. Any proposal of a legislative nature would necessarily be referred to him.

Setting up an early warning system would allow national parliaments to participate directly in monitoring compliance with the principle of subsidiarity. The Group proposed the creation of a new political monitoring mechanism involving national parliaments. For the first time in the history of European construction, this proposal involves national parliaments in the European legislative process.

Such a mechanism would enable national parliaments to ensure correct application of the principle of subsidiarity by the institutions taking part in the legislative process through a direct relationship with the Community institutions. The Group proposes that the Treaty should stipulate that:

• The Commission should address directly to each national parliament, at the same time as to the Community legislator (Council and European Parliament), its proposals of a legislative nature.
• with six weeks from the date a proposal is transmitted, and before the legislative procedure proper is initiated, any national parliament would have the possibility of issuing a reasoned opinion regarding compliance with the principle of subsidiarity by the proposal concerned.
• That reasoned opinion would be addressed to the Presidents of the European Parliament, the Council and the Commission. It should relate exclusively to the question of compliance with subsidiarity.
• The consequences of such opinions for the continuation of the legislative process could be modulated, depending on the number and substance of the reasoned opinions received:
  • if, within the six-week deadline, the Community legislator received only a limited number of opinions, he would give further specific reasons for the act with regard to subsidiarity;
  • if, within the six-week deadline, the legislator received a significant number of opinions from one third of national parliaments, the Commission would re-examine its proposal. That re-examination may lead the Commission either to maintain its proposal, amend it or withdraw it.

The Group also proposes that a national parliament which has delivered a reasoned opinion under the early warning system should be allowed to refer the matter to the Court of Justice for violation of the principle of subsidiarity.

The Group further proposes allowing the Committee of the Regions the right to refer a matter to the Court of Justice for violation of the principle of subsidiarity. This referral would relate to proposals which had been submitted to the Committee of the Regions for an opinion.

Positions :

The British Government was the first to propose a "subsidiarity watchdog" to monitor the Commission and rule whether decisions should be taken by the EU or national governments. Such a body would be made up of one member of parliament from each of the 15 EU Member States. It would meet six times a year, and would act to prevent any initiative by the Commission or the Council of Ministers to give more power to the EU.

Next Steps :

The Convention will be followed by an Intergovernmental Conference in 2003 or 2004 to decide on the revision of the treaties.