The principles of subsidiarity and proportionality. The role of national Parliaments

According to the principle of subsidiarity , the European Union, in areas which do not fall within its exclusive competence, shall act only if and in so far 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 principle of proportionality , in turn, implies that the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties [article 5 of the Treaty on the European Union (TEU) and Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality].

National Parliaments [article 12 of the TEU] shall contribute actively to the good functioning of the Union: through being informed by the institutions of the Union and having draft legislative acts of the Union forwarded to them in accordance with the Protocol on the role of national Parliaments in the European Union; by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and proportionality; by taking part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms for the implementation of the Union policies in that area, in accordance with Article 70 of the Treaty on the Functioning of the European Union, and through being involved in the political monitoring of Europol and the evaluation of Eurojust's activities, in accordance with Articles 88 and 85 of that Treaty; by taking part in the revision procedures of the Treaties, in accordance with Article 48 of this Treaty; by being notified of applications for accession to the Union, in accordance with Article 49 of this Treaty, and by taking part in the inter-parliamentary cooperation between national Parliaments and with the European Parliament, in accordance with the Protocol on the role of national Parliaments in the European Union.

El Protocol No 1 on the role of national Parliaments envisages the exchange of information and good practices between national Parliaments and the European Parliament, including its special committees, by means of a Conference of Parliamentary Committees for Union Affairs (COSAC), which may submit any contribution it deems appropriate for the attention of the European Parliament, the Council and the Commission. The European Parliament keeps the Member States’ national Parliaments regularly informed of its activities, cooperating closely with them by means of meetings held on a regular basis and directly supports the two major networks that facilitate interparliamentary cooperation: the InterParliamentary EU information eXchange, IPEX, and the European Centre for Parliamentary Research and Documentation, ECPRD.

Draft European legislative acts originating from the Commission shall be forwarded to national Parliaments directly by the Commission, at the same time as to the European Parliament and the Council. Likewise, draft European legislative acts originating from the European Parliament shall be forwarded to national Parliaments directly by the European Parliament, whilst draft European legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank shall be forwarded to national Parliaments by the Council. The Commission consultation documents (green and white papers, communications and interinstitutional reports) shall be forwarded directly by the Commission to national Parliaments. The Commission shall also forward the annual legislative programme as well as any other instrument of legislative planning or policy to national Parliaments. National Parliaments shall be forwarded likewise the European Parliament’s legislative resolutions and the Council’s positions immediately upon their adoption, as well as the agendas for and the outcome of meetings of the Council, including the minutes of meetings where the Council is deliberating on draft European legislative acts (article 12 of the TUE and Protocols No 1 and No 2. Both the European Commission and the Council shall forward these documents by e-mail. Draft legislative acts shall include a statement with information allowing to assess the financial impact and, in the case of a directive, its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation.

The European Commission or the Council, where appropriate, shall forward a letter communicating the beginning of the deadline of eight weeks that national Parliaments have to assess the compliance with the principles of subsidiarity and proportionality; within these eight weeks any national Parliament may send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity (Protocol No 2). Should proposals be based on Article 352 of the TFEU, the Commission shall indicate it expressly to national Parliaments.

According to article 6 of Act 8/1994 ruling the Joint Committee for the European Union, as soon as the said Committee receives an EU legislative proposal, it shall forward it to the Regional Assemblies of the Autonomous Regions, without prejudging the existence of affected autonomous regions’ competences, so that the relevant legislative proposal be known and so that they may convey within four weeks to the Cortes Generales, where appropriate, a reasoned opinion on the compliance with the principle of subsidiarity by the said initiative. Should the Joint Committee approve a reasoned opinion on the non-compliance with the principle of subsidiarity, it shall incorporate the list of opinions conveyed by the Regional Assemblies of the Autonomous Regions, together with the necessary references for its consultation.

Each national Parliament shall have two votes, one for each Chamber in bicameral Parliaments.   Article 7 of Protocol No 2 lays down several thresholds for the number of reasoned opinions to be conveyed by national Parliaments within the deadline of eight weeks, with formal effects on the legislative procedure (“yellow card” and “orange card” procedures).

Once adopted the legislative act and published in the Official Journal of the EU, should national Parliaments consider that the principle of subsidiarity not been observed, they may, through their Governments, challenge the said act before the Court of Justice of the EU. The Committee of the Regions may also bring such actions against legislative acts for the adoption of which the Treaty on the Functioning of the European Union provides that it be consulted (article 8 of Protocol No 2).