Monitoring the Subsidiarity Principle – The Role of National Parliaments

The preconditions for monitoring of national governments by their Parliaments are substantially improved by the Constitution. In future, Parliaments will receive all relevant EU documents directly, whereas to date they have been forwarded to them by the respective national government.

Individual Member States will continue to lay down the specific information and control rights of Parliaments in EU affairs in their national constitutions. However, the general aim is to raise the respective standards through the increased exchange of "best practices".

In addition, new procedures (early warning system, rights bring action) will be created in order to enable national Parliaments to better monitor the application of the subsidiarity principle.

The subsidiarity principle is defined in Article 1-11 of the Constitution. It stipulates that in areas which do not fall within the exclusive competence of the Union (i.e. in all areas of shared or supplementary Union competences - see 'competences' link), it will 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 definition of this principle set out in Article 5 of the EC Treaty is thus complemented by the emphasis on the regional and local levels.

Furthermore, Article I-11 stipulates that national Parliaments will be able to monitor compliance with the subsidiarity principle within the framework of a procedure described in the "Protocol on the application of the principles of subsidiarity and proportionality". No such procedure was provided for in the currently valid Protocol on the application of these principles annexed to the EC Treaty as a result of the 1997 Amsterdam Treaty.

The two protocols mentioned in the following are as legally binding as the provisions set out in the Constitution itself.

All draft legislative acts of the Commission (EC) will be forwarded by the Commission to the national Parliaments at the same time as to the Union legislator. In this connection special attention should be drawn to draft legislative acts submitted by the EC on the basis of the flexibility clause (see 'competences' link).

The Commission has to give specific reasons for its draft legislative acts relating to the principles of subsidiarity and proportionality.

• Early warning mechanism: Any national Parliament - or any chamber of a national Parliament - may within six weeks from the date of transmission of a draft European legislative act send to the European Parliament, the Council and the EC a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. Each chamber of a national Parliament may, if necessary following consultation with regional Parliaments with legislative powers, issue such opinions. If such reasoned opinions are issued by at least one third of the national Parliaments/chambers of the Member States, the EC has to examine their draft. Each Parliament has two votes, which may be distributed to two chambers, if necessary. Stating reasons, the European Commission may then either retain, change or withdraw the draft ("yellow card", no "red card"). In the case of drafts within the framework of the area of freedom, security and justice (= policy area of justice and home affairs) the threshold is only one quarter of the eligible votes of the national Parliaments/chambers.
• Rights to bring actions: After a legal act has entered into force, the Member States may, if their national legal system so provides, also bring an action on behalf of their national Parliament or one of its chambers on account of infringement of the principle of subsidiarity. The Committee of the Regions also has this right in the case of legal acts where the Constitution provides for its consultation.

Protocol on the Role of National Parliaments:

All consultation documents and draft legislative acts as well as agendas and protocols on the outcome of Council meetings will be directly transmitted to the national Parliaments. A period of at least six weeks shall elapse between transmission of the documents and decision in the Council. Moreover, the annual legislative programme, any other instrument of legislative planning, the annual "Subsidiarity Report" by the EC and the annual report of the European Court of Auditors shall also be transmitted to the national Parliaments.

The Conference of Parliamentary Committees for Union Affairs (COSAC) may also submit contributions to the EP, the Council and the EC. COSAC shall also promote the exchange of best practices concerning the involvement of Parliaments in EU affairs. Within the framework of COSAC, inter-parliamentary conferences may also be organised, in particular on issues relating to the Common Foreign and Security Policy.

Legal acts which require ratification by all Member States in order to become effective:

• Article I-54 (3) (own resources - European law on a ceiling for the Union’s resources and establishment/abolition of new categories of resources): consultation of EP, ratification by Member States;
• Article I-58 (2) (former Article 22 of the Treaty on European Union, accession of a new Member State): notification of the application to all national Parliaments, consultation of the EC, consent of the EP, ratification by Member States;
• Article III-129 (former Article 22 of the TEC, European law or framework law on the extension of the rights of the citizens of the Union): consent of the EP, ratification by Member States;
• Article III-330 (1) (former Article 190 (4) TEC, « direct election act ») : consent of the EP and ratification by Member States;
• In accordance with Article IV-433 (1), national Parliaments have to be notified of proposals submitted by the Member States, the EP or the EC concerning changes to the Constitution. Paragraph 2 stipulates that representatives of national Parliaments have to participate in the convention convened by the European Council (by simple majority) to examine the proposals for amendments to the Constitution. Paragraph 3 stipulates that amendments to the Constitution have to be ratified by all Member States.
• According to Article IV-445, ratification by all Member States is also required in the simplified Treaty revision procedure concerning internal Union policies.
• According to Article IV-447(1), ratification by all Member States is required for the Constitutional Treaty to enter into force.

Other provisions on the involvement of national Parliaments in the Constitution:

• Article IV-444 (transition to qualified majority) stipulates that the national Parliaments have to be informed prior to a unanimous decision by the European Council that certain legislative acts to be unanimously adopted by the Council in accordance with Part III of the Constitution will require a decision by a qualified majority. If a (single) national Parliament makes its opposition known within six months of the date of its notification, the decision will not be adopted.
• According to Article I-42 and Article III-260, national Parliaments will be included in the evaluation mechanism concerning the area of freedom, security and justice (= policy area justice and home affairs).
• According to Article III-273 and Article III-276, the arrangements concerning the involvement of national Parliaments in the evaluation of Eurojust’s activities and in the scrutiny of Europol’s activities have to be regulated by a European law.