The Subsidiarity therefore, restricts only those areas of the

The European Union is probably one of the
hardest institutions to define, for there are so many unique features that it
brings on the international scene. It Parliaments both of it members states and
at European levels, now enjoy a place and role that cannot be compared to any
other international organization or regional integration.

Hence one of the main features of this
multinational democracy is the cohabitation and the interdependence between
nationals at the local and regional levels and European institutions, which
none of these players are entitled to absolute sovereign powers.1

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The Treaty on European Union (TEU)
substantively provides that the exercise of power by the European Union must
respect the principle of subsidiarity.2
Subsidiarity is defined as follows:

“In arears which do not fall within the EU
exclusive competences, the union 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 level, but can rather, by reason
of the scale or effects of the proposed action, be better achieved at the union
level’.3

The key principle to grasp in fulling
understanding the question to this paper is the principle of conferral,
subsidiarity and proportionality, which are all contained within the same
article of the TEU. Conferral is defined in the treaty in the following way “The
Union shall act only within limits of the competences conferred upon it by the
member states in the treaties to attain the objectives set out therein.
Competence not conferred not conferred upon the Union in the treaties remain
with the member states.  And proportionality
is defined as follows “the content and form of the Union action shall not
exceed what is necessary to achieve the objective of the treaties.

Simply put the conferral principle ask –
can the EU take a proposed measure. Subsidiarity principle asks -if the EU must
defer to the Member States in relation to the proposed measure. And Proportionality
principle asks- how the proposed measure may be taken.

Until the Lisbon Treaty, the previous treaties
did not contain a list of exclusive competence of the Union. The court of
justice confirmed that subsidiarity does not restrict the use of exclusive
powers of the union. Subsidiarity therefore, restricts only those areas of the
non- exclusive powers of the Union. 4

The Lisbon Treaty5
brought several changes for National Parliaments of Member States. One such
change was the Early Warning Mechanism; which gives National Parliaments the
right to directly intervene in European Union decision making by submitting
reasoned opinion against draft legislative acts which in their view -are not in
line with the principle of subsidiarity as annex in the Lisbon Treaty.6

Each National Parliament has two votes
which are split between chambers in the case of bicameralism. If the number of
reasoned opinion represent at least one third of all votes then a yellow card
is issued and the draft legislation must be reviewed. If a proposed draft in
the ordinary legislative procedure is opposed by the majority of votes, the draft
can be voted down immediately by either the European Council or the European
Parliament – Orange Card. The national Parliaments however, have an eight weeks
window in which to engage with their dossiers.

The willingness to give a say to the
national parliaments was driven by two factors the first is democratic norms
and the other being strategy.7
This procedure can be seen as placing national parliaments in a very implicit role
as protectors of national sovereignty.

The main positive outcome of the early
warning mechanism seems to be the improvement of justification put by the
commission regarding the principle of subsidiarity.8
Beyond this positive element several negative criticisms have been levelled against
it. Such as the statement we are asked to analyses. Where it is suggested, that,
the Early Warning System has failed to involve national parliaments meaningfully
in the EU’s ordinary legislative procedure.

The early warning system has generated 354
opinions between the period 2010 to 2015. Since the existence of the procedure,
the most active chambers have been the Swedish Parliaments 56 followed by the
French Senate 25 and the Dutch lower 22 and higher 18 assemblies.

From 2010 to 2016, the commission proposed
on average of 127 text yearly versus 271 for the previous seven years. Likewise,
from 2010 to 2015 the EU adopted an average of 92 text versus 205 during the
six years preceding years.9
 

This, however, does not mean that the Early
Warning System is responsible for this trend. Thus far, the threshold of one
third of Parliamentary assemblies has been reached only on three occasions.

In 2012, a yellow card was raised for the
first time on a proposed regulation on the exercise of the right to take
collective action. The issuing of that first yellow that the potential of the
mechanism became evident. This proves that some parliaments understand and use subsidiarity
review as a chance to state how politically unappealing a legislative proposal
from the commission can be. The main concern expressed by national parliaments
was that the proposal might destroy well function national arrangements in the
area of labour law and subsequently the draft legislation was pulled.

In 2013, a second yellow card was triggered
in relation to the commission’s proposal for a regulation establishing the
European Public Prosecuting Office. This one has been less effective, since it
has not been to convince the commission to withdraw its proposal. Two reasons
were advanced in regards to the commission not withdrawing this proposal first
being that it was supported by a communication of the Commission containing an
extremely detailed impact assessment. and secondly there was the legal basis
for this proposal was beyond any contestation.

In May 2016, 14 Parliaments Chambers
objected to the commission’s   proposal for a revision of the posted worker
directive. This highly salient issue was especially a matter of concern in
central and eastern states as indicated by the parliaments raising opinions. (Bulgaria,
Croatia, Czech Republic, Denmark, Estonia, Hungary, Latvia, Lithuania, Poland,
Romania and Slovakia).10
The national Parliaments from those countries were voicing national concerns,
hand in hand with the governments from this area. However, President Juncker
commitment to build a more social union; the commission decided again to
maintain the proposal unchanged.

On the surface the concept of the early
warning system and the principle of subsidiarity working to improve the
relationship of compliance of democracy within the EU seems commendable
however, several issues can be raised that seem to credit the validity of the
claim to which we are assessing.

The first issue that can be identified is the
fact that eight weeks in which to overview dossiers is a very tight schedule.
For most parliaments to meet this deadline would mean that all available
resource would have to be deployed and at the same time maintaining their
original duties.

The amount of draft legislation is a follow
on to the first issue, simply put, nothing, within the EU is straight forward
or simple in its format.11

The lack of financial and human resources
to treat these dossiers. Also, the lack of experience of the responsible staff
to prepare documents for the decisions makers in relation to subsidiarity
monitoring is also seen as another drawback.

There is also, the lack of proper justification
on the part of the European Commission as to the compliance with the subsidiarity
principle in EU draft legislation. Also, it has been noticed in many research
documents that there is a general lack of interest in EU affairs at a political
level and one of the most difficult ones is that there are different
understanding of the concept of subsidiarity. What may be identified in the EU
draft legislation may be considered as a subsidiarity problem by some member
states parliaments, a proportionality problem by other member states and a
content -related problem by other members; and the increasing perception of subsidiarity
as a counterproductive or EU critical concept.

It should be noted, although the problems
listed can be said as to the reasons why the statement that is being assessed,
is perceived by many as truth. Participation in the early warning system need
to be seen as an opportunity to help boost the complex process of European integration.
It should be seen as an opportunity to strengthen the EU’s democratic legitimacy,
giving the EU a higher profile in the regions and at the same time bringing the
needs of each region closer to European decision making and enabling them to
influence the EU decision -making process.12

When the Lisbon treaty came into force
there was great enthusiasm by the national parliaments and most of these
parliaments have effectively become increasingly involved in subsidiarity monitoring.
Most Parliaments have established specific procedures for subsidiarity monitoring
or are currently in the process of modifying their internal rules to this end.

However, it appears to be that a number of
regional parliaments are showing signs of discouragements towards their lack of
visibility within the early warning system and the lack of efficiency of the
system, which does not as such guarantee national parliaments that their
decisions on subsidiarity would effectively be taken into consideration by the
commission unless an orange card is triggered and which we have already seen
has to be with a majority of the national parliaments.

The limited number of cases where the
threshold was reached should not by itself be indicative of failure of the system
it can also be argued that the commission has taking better precautions and was
therefore respecting the subsidiarity principles and partly due to the existence
of the early warning system. Also, the maintenance of the commission stance on
two out of the three cases mention earlier is also not a sign of failure, as a
yellow card may have a more-subtle impact in the course of the legislative
procedure.

The early warning system seem to have two
main arguments with it firstly the cost in terms of resources of the national
parliaments and secondly the focus on subsidiarity by members of the national
parliaments however, objections can be structured to rebut those criticism. The
political logic of the subsidiarity has seen despite the critics the procedure
has worked quite well so far despite the ambiguity over the necessity to
genuinely focus on subsidiarity. The mere fact that opinions were being used as
a pretext to signal to the commission that a proposal raised political problems
within a member state would be considered by the commission.13

One European journal identified two
elements from the incident relating to three yellow cards that carry a more
negative assessment. First that there is a high degree of contingence in
reaching the threshold. Opinions of the national parliaments to reach the
threshold depends materially on fortuitous physical meetings of representatives
from many national parliaments and the reasoned opinions on subsidiarity hide
significant disagreements between national parliaments on the content of the
proposal. A negative aspect in such that a procedure that depends so much on
chance on the one hand and misunderstanding on the other is arguably
unsatisfactory.

Secondly there is study to show that there
is a high degree of proximity between executive aand legislative power at
national level. The political divide in national parliaments would indicate
that the parliament majority and the executive share a frequent fusion and that
power raises the suspicion that the whole early warning system process could
be, in some cases manipulated by members of the council of the EU; and this can
lead to the break down or failure of the institutional balance within the
ordinary legislative procedure and also the democratic justification for
associating national parliaments.

If this be the case then the ethos of the
treaty has been defeated. Parliaments are expected to bring their democratic
virtues to the table and so their capacity would be highly questionable to say
the least, when ministers hide behind them to make the most of EU bargains at
the early phase.

This to me is not the case and as noted in
research there are multiple informal or less institutionalised types of contact
between the commission and the national parliaments. Representatives from
Member states travel to Brussels and meet frequently with the different types
of stake holders at both the administrative levels or higher. They also meet
with commission representative and these meeting enable Commission officials to
comprehend more precisely the sensitivity of a given file in a given member’s
state.

The Commission report on relation with
national parliaments indicated that members of the commission paid more than
200 visits to the various national parliaments during the course of 2015.14
The commission’s president officially asked for more involvement for these events
after assimilating that the multiple on -going crisis the EU was facing
required the deepening of dialogue with national parliaments at a political
level. However, low attendance and limited press exposure was sited as a factor
against the commission’s ambitions.

In the commission report of 2016 the report
it was stated:

         
“The commission recognises that national Parliaments, as the representatives
of Europe’s          citizen at national
level, play an important role in bridging the gap between European institutions
and the public. The Commission continues to respect the balance between the
institutions active on a European level, and is mindful of its right of initiative.
However, it has demonstrated that it is ready to consider suggestions from
national parliaments, like joint initiative on food waste, that indicate where
action at European level could bring added benefit”.15

In addition to all of the Early Warning
System and the national parliaments the treaties also makes it clear that
subsidiarity is a judicially enforceable legal principle. The Subsidiarity
Protocol expressely confers jurisdiction upon the Court of Justice in actions
alleging infridgment of the principle of subsidiarity by an EU legal act.16
Such action may be brought by member states under the rules relating to the
review of the legality of EU legal acts.17

The national parliaments also has an
indirect right to bring infringement action under the present version of the
protocol.18
The national Parliaments do not have a direct right a direct right to bring judicial
review proceedings for breach of subsidiarity, but do so through proceedings
notified by the national parliaments.

The European Parliament has been gradually empowered
at every treaty revision since the Single European Act. At the same National
Parliaments may have felt marginalized in the EU where both levels tried to
jealously guard or extend their respective competences, however, national parliaments
and European parliaments have maintained cooperative relations at various
levels, in various formats and constellation.

In conclusion the introduction of the early
warning system had redefined the role expected of national parliaments and it
is well recognized that these parliaments are under normative pressure to live
up to these expectations. The parliamentarians are the crucial actors as
members of their respective parties and also as member of the national
parliament. As such, they are not to be solely interested in policies or votes,
but also in maintaining their parliament’s legitimacy. They run the risk of
putting the latter at risk if they were to ignore the early warning system. The
main reason for the Early Warning System introduction was a widely shared
perception amongst political elites that the continuous transfer of sovereignty
to the European level has undermined parliamentary control and caused a legitimacy
deficit, which cannot be dealt with by empowering the European Parliament alone,
but also demand stronger involvement of the national parliaments. It is to be
clearly stated that it was the National Parliaments themselves that repeatedly
called for more right in European decision making. Therefore, these national
parliaments now receive all legislative proposal directly from the commission and
have been provided with formal instruments to make their voices heard about the
ordinary draft legislation. Therefore, it would seem to me that the early
warning system would disable the statement that it has failed to involved the
national parliaments. It seems undeniable that national parliaments are to
carry the blame if undesirable legislation are allowed to enter they themselves
have been unable to engage in it for one reason or another. In addition; and by
ratifying the treaty of Lisbon, the national parliaments have officially acknowledged
their new role and the task attached to it. It would therefore, be an injustice
to this paper to side with the statement being analysis because based of the
evidence provided it is difficult to justify that the fault lies with the
European Union. The National parliaments have signed on after much asking
for  this check on the principle of subsidiarity
and so it would be difficult to justify doing so only to neglect there
responsibility and further undermine parliaments’ crediability and thus their
legitimacy.

1 Cristina Fasone – Competing concepts of Subsidiarity in the early
warning mechanism. Printed in Italy (2013)

 

2 TEU Art 5(1)

3 TEU Art 5(3)

4 Gabriel A Moens. John Trone – The Principle of Subsidiarity in EU judicial
and Legislative Practice: Panacea or Placebo. Volume 41 p.2

5 Treaty of Lisbon, Protocol on the application of the Principle of
subsidiarity and Proportionality, Dec 1, 2007 O.J (c340) 105

6 Ibid 5

7 The role of national parliaments post Lisbon

8 That the commission validated

9 Kilver P. 2012 The early warning System for the Principle of Subsidiarity,
Constitutional Theory and Empirical Reality.

10 Ibid 5

11 Emphasis added.

12 Perception of the subsidiarity scrutiny. Page 111

13 President Barrose in a letter dated 1st Dec 2009 noted
that all reasoned opinions raising objections to the conformity of a
legislative proposal with the principle of subsidiarity(..), even if the
different reasoned opinions provide different motivations as to the non
-compliance with the principle of subsidiarity.

14 European Commission, 2016. Annual Report 2015 on Relations between
the European Commission and National Parliaments Com (2016) 471, p.2.

15 Ibid pp 14 -15.

16 Protocol No 2 , Supra note 23, at art 8.

17 See TFEU supra note 31, at art 236

18 Protocol No2 supra note 23, at art 8;