Sunday 12 December 2010

Division of Labour: Subsidiarity and National Parliaments

Subsidiarity. If you're still reading, congratulations; your courage in the face of EU jargon is impressive.

Subsidiarity is the principle that decisions should be taken at the closest possible level to the public, where that decision can be meaningfully taken. It's a principle that everyone will find attractive and agree with - how could you possibly be against? I support the idea, but when Nosemonkey asserted that giving subsidiarity true meaning and force would improve the EU and its legitimacy during the first Bloggingportal event panel, my first thought was a bit sceptical:

"Subsidiarity is probably one of the most tricky #EU legal concepts - how can you define it?"

Jon Worth replied:

"@EuropeanCitizen Subsidiarity is a conveninent cover for doing what you want to do, at whatever level #EU #EUuk - or am I too sceptical?"

Keeping decision making power at the lowest level possible where it would be effective is clearly a political ideal, and how to impliment it in practice causes a lot of difficulty. Since I study law, my mind immediately jumped to the European Court of Justice - after all, it is the institution which interprets the Treaties and which would rule whether or not the EU was acting within its competence or not. To my knowledge, the ECJ has not once found a breach of subsidiarity, and I am not aware of there being a test for subsidiarity, simply because it is so political it defies easy judicial interpretation.

I don't want to be misquoted here that subsidiarity is meaningless and the ECJ does nothing to limit EU power, because there are other, better, legal tools for doing so. The other 2 legal principles are those of conferral (the EU only has powers given to it by Treaty) and proportionality (EU actions must only so as far as is necessary to achieve their aims). (See Article 5 TEU). The Tobacco Advertising cases (I & II) are good examples of these principles being used (though arguably proportionality should have been more thorough), and the key point was that the internal market concerns cross-border trade, so the EU can only rely on those law-making powers to create laws that ease cross-border trade, not for health or for goods that would be fixed and not cross borders. These principles are either straight-forward or there is good judicial experience in the Member States to draw on to inform how they should be used. But when it comes to subsidiarity, what does it add to the judicial decision-making, and how could it be applied?

Subsidiarity is political, so it would be best enforced through political channels. The Lisbon Treaty gave the national Parliaments the ability to force the Commission to reconsider proposals if enough of them (at least 9) considered the proposal to breach the principle of subsidiarity. (See Protocol 2 of the Treaties). The time limit of 8 weeks is too short for it to be very effective, however, given the amount of co-ordination and co-operation that needs to take place among national parliaments. It does give them a useful tool which could be used effectively when the national parliaments organise themselves (which will take time and depend on their political will), but the time limits need to be extended. Open Europe has made this point, and it's a good one.

At the moment the Commission does a "check" on its proposals - do they conform with the Charter of Fundamental Rights, do they conform with the principle of subsidiarity, etc. The ECJ is likely to take political decisions on subsidiarity as being within the legislative discretion of the EP and Council and focus on other legal questions, but challenges from the national parliaments may force the ECJ to take it into account more (though it will be a long time, since it will more likely decide on procedural issues and on other legal grounds rather than face the difficult and politicised task of defining subsidiarity). Effective political channels are the best way of making subsidiarity more meaningful.

A last point on the role of national parliaments in the EU. At the Bloggingportal event, Mat Persson of Open Europe remarked that their role should be expanded beyond subsidiarity checks. To me, and I'm open to correction, this means national parliaments having a legislative role in place of or parallel to the EP. I'm completely against this. It would be good for national parliaments, through their committees to keep tabs on and control the votes of the national ministers in the Council, but becoming the "second chamber" of the EU would be damaging to transparency and accountability. Though the EP is not loved and turn-out is falling, it does, at least, provide an open, full-time forum for debates on EU legislation and scrutinising the executive.

National parliaments, on the other hand, tend to have little time of EU affairs, and their effectiveness varies from country to country on the powers they do have regarding the EU. Separate debates in 27 (or more) arenas in different languages would mean that the debates will become harder for the public to follow. Inter-parliamentary deals (alliances and deals made in now smokeless rooms) would be even more decisive for the legislative process. Though the EP has a low turnout and political organisation on a continental scale is more difficult, at least it provides the possibility of influencing the way EU legislation is dealt with and of expressing opinions more directly to the EU institutions about what they should be doing. Having the national parliaments take over would damage the transparency and accountability the EP provides (or potentially provides), and could even reduce the EU's legitimacy.


  1. Not only still with you but found this a very interesting debate.

    Like you I would be against national parliaments having an expanded role. They already have the right to debate and comment on proposed EU legislation (ex Lisbon).

    An expansion - particularly involving a legislative role - would be against the whole purpose of the EU. EMPs are there to ensure a balance between national and inter-national (ie pan-EU) needs and aspirations that can be best fulfilled through the EU. Commissioners even more so. Heads of member nations have long since given up any pretence of acting in the interests of all (ie they could be said to be acting un-constitutionally?).

    I find that some (note some) EP debates are well-informed, some are even lively. The problem is the news media never think of looking at the daily work of the EP: if they did perhaps more people might become interested. And they might even start writing to their EMPs!

  2. The quality of policy and debate seems to vary quite a bit, but I am quickly developing a soft spot for the EP. Perhaps I'm reading too much academic literature about it....

  3. National parliaments have to be involved in EU decision-making, but as J. Delors recently said, the new mechanism of subsidiarity check is not a good formula, since it assigns a negative role in the EU to national parliaments: to control and block, not to propose or improve.

    I think there is little to expect from this system. In the future, each national parliament should have its own representative in the council alongside with the government's representative, each representative accounting for one third of the member state's votes.

  4. Cédric, first, I need to remind you that the Council is the Council of Ministers of member states - ie national government ministers. So why the need for an extra representative?

    Second, national parliaments (as I understand the "subsidiarity" rule) can only point out objections, rather than block. Or am I wrong?

    My earlier point is still valid: anyone, from any nation, who attends at the EU formally should be seeking to represent the interests of the EU as a whole, and not their own, national interests.

    I recall that, even in 1965 deGaulle brought the EEC (as it then was) to a halt when he withdrew French ministers, etc, from the Council (in protest against increased powers for the EP). He may have been a committed Frenchman; a committed European he was not.

  5. Derek,

    Why not? In many federal States, these are State assemblies which elect representatives to the upper house, not state governments. Why not apply or adapt this model to the EU (and please do not answer me that the EU is not a federation :))?

    Besides, the reason why national representatives in the Council defend national interests, which you seem to deeply regret, is because they have to respect an "imperative mandate": they get detailed instructions from their governments, and they do not have the right to improvise when necessary.

    You cannot sincerely imagine a system in which these representatives (ministers, permanent representatives) would be free from any imperative mandates from their governments.

    On the contrary, having national assemblies elect some national representatives to the Council, let’s say every two years, would allow us to imagine a Council in which 2/3 of the members wouldn't have to respect an imperative mandates. So why not?

    And you're right about the new "powers" of national parliaments: they can only object, not block. But I can promise you that reaching the 33% or 50% thresholds will mean the death of the draft law in question, or at least its watering-down. So you’re legally right but politically wrong!