Subsidiarity is a concept for the division of legislative powers at the lowest possible and efficient level. The principle is close to the principle of decentralisation.
Tle Lisbon Treaty has "subsidiarity" as one of its “Fundamental principles”. Art. 5.2 TEU states:
“Under the principle of subsidiarity, in areas which do
not fall within its exclusive competence, the Union
shall act only if and insofar as the objectives of the
proposed action cannot be sufficiently achieved by the
Member States, 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. The institutions of the Union shall apply
the principle of subsidiarity as laid down in the
Protocol on the application of the principles of subsidiarity
and proportionality. National Parliaments shall
ensure compliance with that principle in accordance
with the procedure set out in that Protocol.”
Art. 12.b TEU instructs the national parliaments to control the respect of the subsidiarity principle.
Art. 69 TFEU underlines the principle for Justice and Home affairs.
Art. 352.1 TFEU underlines the principle in the use of the so-called “flexibility clause”.
The Lisbon Treaty has an attached Protocol 1 and Declation 51 on the role of national parliaments and an updated Protocol 2 on subsidiarity and proportionality.
Since 15 September 2006 the Commission has send all proposals for new laws to the national parliaments to give them a chance to read the proposals for compliance with the principle of subsidiarity.
This practice is now a legal obligation. The Commission is obliged to review its position if 1/3 of the national parliaments react with subsidiarity arguments. The Commission is not obliged to change its proposal. The procedure is called the “yellow card”.
The Lisbon Treaty also includes an “orange card”. 50% of the Parliaments can ask 55% of the governments to block a proposal from the Commission. This procedure may never be used. A qualified majority will anyway require the support of 55% of the governments. This means that 45% of the governments can block a proposal for whatever reason.
The new voting system is introduced 1 November 2014. Until then it is even more difficult to use the orange card. Qualified majority now requires 74% of the weighted votes in the Council. This means that member states with 260 of the 352 possible votes (26%) of the votes can block for whatever reason.
The “alarm bell” system or the "yellow card" must be invoked within eight weeks of its publication on the grounds of breaching the principle of subsidiarity. This "reasoned opinion" may then be taken into account, but there is no obligation to alter or withdraw the proposal.
For reasons of infringement of the subsidiarity principle, the member states' governments can take a case to the EU Court on behalf of their national parliaments. That means that national parliaments cannot do so on their own.
CONCEPT AND HISTORY
In the constitutional Convention, there was a strong move to introduce real subsidiarity. The decentralisers lost the battle to those who wanted more integration and who were opposed to returning powers (competence) to the member states.
The subsidiarity principle is originally a Catholic social principle stating that society should not interfere in areas where families can decide on their own.
Subsidiarity is also a legal principle on the distribution of powers between different level of governing from families to states.
What can be decided efficiently in a family does not need to be decided by public authorities.
What cannot be decided in the family can be delegated to a higher a level.
What cannot be decided efficiently in the local townhall can be delegated to the nation state.
What cannot be decided efficiently in the nation states may be moved to Brussels – or to the United Nations.
The wish for subsidiarity normally express a wish for de-centralisation of the decision making process. The principle is directed “bottom-up” instead of “top-down”.
Many citizens have also been calling for a new division of powers between the member states and the European institutions based on true subsidiarity.
When Denmark voted No to the Treaty of Maastricht 2 June 1992 one of the answers was a Declaration underlining a new Protocol on "subsidiarity" included in the Maastricht Treaty.
The claim was raised again by the prime ministers themselves in the Laeken-declaration from December 2001.
The Lisbon Treaty does not represent a real step towards more subsidiarity. On the contrary, it will centralise many more competences in Brussels requiring votes by qualified majority in the Council in 68 new areas. This means it will become much easier to have decisions moved from the member states to Brussels, this can be both good and bad.
The Commission President José Manuel Barroso has already implemented the subsidiarity check at the national parliament level. It was called upon by a minority report in the Constitutional convention and raised again as a claim in a joint meeting between the national parliaments and the European Parliament.
Barroso promised to start consulting the national parliaments and he promised informally to respect their voices. He delivered what was promised. From 15 September 2006 the European Commission has sent proposals for new laws for subsidiarity check in the national parliaments.
In the first year the Commission received 152 reactions. By April 2008 the Commission had received 450 reactions. The major part have come from the French Senate, the British House of Lords, the Czech Senate and the German Bundesrat. The more important second chambers in the national parliaments had not started to take this new procedure seriously.
In 2012 there were 663 and in 2013 there were 621 statements from the national parliaments with more arguments on the breach of the subsidiarity principle. In 2013, most reactions now came from the Portugese parliament with 192 reactions, 64 from the Czech Senat and 40 from each of the German Bundesrat and the French National Assembly.
20 reactions were concerned about the propossal for a European Public Prosecutors office, 17 for a tobacco directive and 14 for a directive concerning coastal management.
in 2013 the national parliaments launched for the second time a 'yellow card' - procedure, this time on the Proposal for a Regulation establishing a European Public Prosecutor.
Within the period of eight weeks, the Commission received reasoned opinions of 14 parliamentary chambers (which accounted for 18 votes), which concluded that the proposal did not respect the principle of subsidiarity. In the following discussion, the Commission assessed carefully the proximity arguments that were made in the reasoned opinions, but in its Communication of 27 November 2013 the Commission concluded that national parliaments had not demonstrated that the proposal was contrary to the principle of subsidiarity. The Commission therefore decided to retain the proposal.
The Commission has been surprised by the high amount of reactions and have tried to retreat on Barroso’s promise.
Staff at the Commission have been instructed to follow the exact procedures in the Lisbon Treaty and require the similar arguments from all those who protest and count to 1/3 before they take note of the reactions.
Until now the Commission has only changed one single proposal after the reactions from the national parliaments. The subsidiarity check has started to work but there is still no true subsidiarity.
True subsidiarity would mean that all proposals start bottom-up rather than top-down. National parliaments could meet and decide the annual catalogue of laws and also decide whether they propose binding EU laws or softer instruments such as voluntary coordination. Today the annual catalogue is decided by the Commission after consultations with the Council of Ministers and the European Parliament.
True subsidiarity could also mean a first reading of all proposals for EU regulation in the national parliament’s specialised committees followed up by formal decisions in the plenary or the European Affairs committee with a protocol showing who voted for and against.
True subsidiarity could also mean a more precise description of a European catalogue of competencies including a description of competencies of the member states.
The Lisbon Treaty has introduced a so-called competence catalogue in Art. 4-6 TFEU. The wordings are so broad that the Danish government has not been able to mention one single Danish law which cannot be touched upon by the Lisbon Treaty.
The European Court can reach all national laws and also overrule the national constitutions. With the Lisbon Treaty there will be no area of national legislation which cannot be affected by EU law or verdicts. If the European institutions may also reach or touch every corner of national law then everything changes for the worse.
The former German President, Roman Herzog, published a critical article on the centralisation of EU laws in Die Welt in 2007.
He quotes an investigation from the German ministry of Justice which has counted that 84 % of all German laws originate from Brussels. He concludes that Germany can hardly be called a parliamentary democracy since this means that most German laws are being made in a less democratic way than before.
The calculation below was given 29 April 2005 by the Parliamentary Undersecretary of the German Parliament, Alfred Härtenbach.
From 1998 to 2004 the EU decided 18,167 regulations and 750 directives. In the same period the German parliament decided 1,195 laws and 3,055 “Rechtsverordnungen”. The latter implement the first.
Former President Roman Herzog and the leader of the Freiburg based “Centrum für Europäische Politik”, Lüder Gerken, then warned against the fact that 84 % of all German laws were originating from Brussels.
The numbers of EU laws may be discussed in relation to the number of national laws. There are no official figures for the production of EU laws. Formally the figure 84 % could be even higher because all EU regulations are directly binding in the member states and does not require any act of implementation to bind citizens.
On the other hand there is an important difference in the importance of some national laws like the penal code and the annual national budget, only counting as two laws, compared to a the larger bodies of numerous laws in EU regulations on fisheries or on agriculture.
A detailed analysis from “Open Europe” suggests that 72 % of all costs from regulation in the UK now come from the EU. For the whole of the EU it is calculated to 66 %. This is maybe a more relevant measure of the importance of the EU regulations.
There is no doubt that already now the EU is a more important regulator than the national parliaments. The Lisbon Treaty increases the role of the European institutions without bringing one single law back to the member states - even if that possibility was explicitly also foreseen in the Laeken declaration from the prime ministers.
In another article from euobserver.com dated 10/09/2008 the European Court of Justice was criticised for increasing the competences of the EU in radical verdicts.
The European Court of Justice “systematically ignores fundamental principles of the Western interpretation of law”, it “ignores the will of the legislator, or even turns it into its opposite” and “invents legal principles serving as grounds for later judgments”, he wrote.
Herzog (and Gerken Lüders) then proposes the establishment of a special Subsidiarity Court composed from the member states.
The minority report from the European Convention proposed to stop the activism of the Court of Justice by moving all political decisions from the Court to the agendas of the European Parliament and Council for political decision.
Then, the Court can judge as they want in a concrete case but not avoid new legislation for the future.
Today far reaching verdicts can change the distribution of competences between the member states and Brussels. These changes can only be repealed by a change in the basic treaties. This requires a unanimously decided treaty amendment followed up by ratifications in all 28 national parliaments.
See also National parliaments and the report of the Working Group "Subsidiarity" of the Convention: http://european-Convention.eu.......er.asp?lang=EN&Content=WGI
Conference of Community and European Affairs Committees of Parliaments of the European Union (Cosac): http://cosac.eu