National Parliaments in Subsidiarity Review: From Guardians to Partners

National Parliaments in Subsidiarity Review: From Guardians to Partners Abstract With a clear emphasis on substantive political value that national legislatures are able to bring to the EU legislative process, this paper attempts to overcome skepticism about deepening national parliaments’ direct involvement in the decision-making process at the European level. The role of national parliaments in advancing their subsidiarity concerns within European law-making may be strengthened through a more intensive political dialogue with the Commission, when the former acts not just as the ‘guardians’ of the subsidiarity principle (in the framework of the existing yellow and orange card schemes) but also as active contributors to the law-making process encouraging the Commission to leverage the so-called green card procedure. Complemented by the yellow and orange card provisions, it forms a three-element subsidiarity review mechanism perfectly capable of dealing with subsidiarity concerns of national parliaments at various stages of the EU law-making process, thus transforming the chambers from wardens into partners working together with the Commission to reshape EU legislative proposals for the sake of better regulation. INTRODUCTION Since 2009, national parliaments have been empowered by primary legislation to review legislative proposals of the EU on the grounds of subsidiarity with the use of the so-called subsidiarity control mechanism (the Mechanism). In the following years, it became evident that the effectiveness of the Mechanism was significantly limited with just three yellow cards triggered and one piece of legislation actually revoked in nine years. The Commission acted defensively when dealing with all three yellow cards. It dismissed all subsidiarity concerns of national parliaments as not strictly related to a subsidiarity violation itself and concluded that the challenged legislative proposals had not constituted a breach of the subsidiarity principle. In the case of the Proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services1 (the Monti II proposal), national parliaments eventually agreed that the challenged bill fully complied with the subsidiarity principle thus accepting that the yellow card was a ‘misuse’2 or a ‘creative use’,3 to say the least, of the Mechanism. For national parliaments, it is not an easy task to look for violations of subsidiarity in EU legislative proposals. As a principal lawmaker, the Commission has successfully internalized the subsidiarity principle and introduced numerous instruments to secure the respect of subsidiarity under the European regulation policy (impact assessments, roadmaps, and explanatory memoranda). The Commission has developed strong internal expertise in ensuring that bills meet the requirements of subsidiarity by means of rigorous procedures of consultations and discussions. National parliaments can challenge any EU legislative proposal that they do not favor for political reasons under the cover of subsidiarity and they follow this track in a consistent manner. With all three yellow cards, the Mechanism was used even though the parliaments were not able to detect significant subsidiarity violations in the Commission’s proposals, especially since these proposals were dealing with cross-border issues falling outside of the regulatory competence of Member States by definition. The clear political motivation behind reasoned opinions supports the view that the Mechanism is potentially a ‘political [not legal] tool for the protection of subsidiarity’4 and is of the same nature as the common vote of no confidence in parliaments where the value of this control instrument is not dependent on how often political actors are using it and to what effect. As Ian Cooper states, ‘the Mechanism is “hard core” within a much broader, non-binding deliberative exchange among NPs [national parliaments] and EU institutions’.5 Therefore, national parliaments may keep using the Mechanism for political ends, but they are also expected to develop meaningful interaction with the EU institutions and, particularly, with the Commission as the main EU legislative proponent if they want to strengthen their role in the EU legislative process. DELIBERATIVE MECHANISM Under Article 3 of Lisbon protocol on the role of national parliaments in the European Union (Protocol 1), national parliaments can provide a ‘reasoned opinion’ if a draft legislative act does not meet subsidiarity requirements in their view. Parliaments can also uphold the subsidiarity principle in the EU legislative process by submitting their reasoned opinions directly to the EU institution which proposes the legislation in accordance with the procedures laid down in Lisbon protocol on the application of the principles of subsidiarity and proportionality (Protocol 2). Protocol 2 has introduced two procedures known as yellow and orange cards. The reasoned opinions under these procedures are counted based on the system, according to which each parliament has two votes irrespective of the number of its chambers. A minimum of one third of the votes is required to trigger a yellow card (or one quarter in the areas of freedom, security, and justice), and though it is not mandatory for the Commission to amend or withdraw the challenged proposal when it faces a yellow card, it must nevertheless justify its approach and substantiate the decision. The orange card tool is activated when the total of reasoned opinions submitted by national parliaments represents at least 50 per cent of the votes. In this situation, an action under consideration must be reviewed by the Commission and, even if it maintains its original proposal, the Council and the European Parliament may turn it down in the first reading for reasons of subsidiarity non-compliance. As Jean-Victor Louis notes, a ‘soccer analogy’ is in place for the yellow card and a ‘traffic light analogy’6 may be drawn for the orange card. The so-called red card procedure, which extends the soccer game metaphor, was discussed before the Lisbon Treaty, but currently Protocol 2 does not envisage it precluding national parliaments from directly vetoing EU legislation. However, national parliaments can ‘have a hand in blocking an EU legislative proposal’7 using the orange card which bestows some decision-making power on them. For this purpose, parliaments should act in concert with the Council or the European Parliament. Acting independently, national parliaments have no power to change or reject an EU legislative proposal. According to Ph. Norton, the orange card procedure has given national parliaments a ‘policy-influencing’8 role in the EU legislative process in a way that enables them to ‘contribute [emphasis added] to the modification or rejection of legislative proposals’.9 The Mechanism serves as a ‘collective warning of difficulties to be addressed by the EU institutions’10 and as a forum where national parliaments can state their position on a proposal without undermining the legislative process. Some positive impacts brought about by the Mechanism include a ‘more active involvement of national parliaments on EU matters’,11 a ‘greater flow of information back and forth, both among national parliaments and between them and the European institutions’,12 and a ‘more open process of deliberation about the reasons and techniques of EU rulemaking’.13 In contrast to a situation of standard legislative bargaining governed by the ‘logic of consequences’,14 the Mechanism stimulates a policy dispute between the Commission and national parliaments over whether and how the EU should legislate—the dispute is governed by the ‘logic of arguing’15 ‘with the expected systemic advantage of making each part responsive to the arguments and concerns of the others’.16 Therefore, the success of the Mechanism depends on the quality of the deliberations of national parliaments and their political dialogue with EU institutions rather than the rigorousness of their reasoned opinions. The Mechanism is much more important for national parliaments as a deliberative tool allowing them to benefit from the political discourse. As long as ‘the subsidiarity debate is a political debate’,17 national parliaments tend to utilize the Mechanism as a valuable channel for challenging subsidiarity justifications of EU legislative proposals in the form of political claims. One of the positive consequences of the Mechanism is that a more rigorous discourse on subsidiarity justifications results in stronger, more subsidiarity-compliant, legislation as the EU institutions are forced to sharpen arguments concerning the necessity of EU action. Besides, as long as the Mechanism deepens engagement of national parliaments with the EU agenda, the Commission is forced to provide a more compelling justification for its proposals in order to avoid a potential barrage of criticism from the chambers. Albeit not granting ‘teeth’ to national parliaments, the Mechanism presses the EU legislator to think twice before exercising its legislative powers. PRACTICALITIES OF THE MECHANISM In 2012, after issuing 12 reasoned opinions on the Monti II proposal, national parliaments triggered the first yellow card. Most parliaments questioned the appropriateness of the use of Article 352 of TFEU by the EU as the legal basis for the proposal and concluded that the justification for EU action provided by the Commission was insufficient. For example, the UK House of Commons considered that the Commission’s explanatory memorandum and impact assessment were both ‘largely based on perceptions of a need to act, which are necessarily subjective, in contrast to objective evidence of a need to act’.18 Some chambers were not convinced of the added value of the Monti II proposal and assumed that the challenged legislation would not contribute to greater legal clarity and certainty.19 Since the expressed concerns were not strictly based on the principle of subsidiarity, the Commission affirmed that no breach of the subsidiarity principle had occurred stricto sensu. In responses provided to the reasoned opinions, the Commission explained that the purpose of the Monti II proposal was to elaborate the general principles and rules to be applied at the supranational level; it was impossible for the Member States to perform this task individually. The Monti II proposal was eventually revoked. According to the Commission, it was done not because the Commission wanted to accommodate subsidiarity concerns, but to avoid possible political frictions within the Council. In 2013, the Commission received the second yellow card against the proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office20 (the EPPO proposal). Parliaments submitted 13 reasoned opinions with objections that could have been summarized as follows: ‘the Commission had not sufficiently explained how the EPPO proposal complied with the subsidiarity principle’.21 Parliaments claimed that the Commission had failed to demonstrate a clear need for an EU wide solution to achieve the policy aim of making the fight against fraud more effective across the EU. According to the objections voiced by the parliaments, existing mechanisms for coordination of investigations and prosecutions as well as ongoing anti-fraud activities at the national level were sufficient to solve the problem. The Swedish Riksdag, the UK House of Commons, and the Parliament of Cyprus pointed out that the Commission should have waited for the adoption of its proposed directive on the fight against fraud to the EU financial interests by means of criminal law before introducing new legislation in this field. The UK House of Commons also assumed that the Commission had not sufficiently examined measures to prevent fraud.22 In some national parliaments’ reasoned opinions, the added value of the EPPO proposal appeared to be marginal or non-existent. In this regard, the Czech Senate expressed the concern that the EPPO proposal was lowering procedural standards and the Parliament of Cyprus stated that, as the list of investigative measures would include measures not allowed under national law, it would not ensure the necessary level of protection.23 That notwithstanding, the Commission decided to push the EPPO proposal forward making no changes and concluding that the explanatory memorandum and the accompanying legislative financial statement did provide a sufficient and detailed explanation of why EU-level action was necessary and appropriate. The third yellow card was issued in 2016 when 14 chambers of national parliaments submitted reasoned opinions in relation to the Proposal for a Directive of the European Parliament and of the Council amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services24 (the Posted workers proposal). The subsidiarity arguments voiced in the reasoned opinions were mostly based on the same assumptions as in the two previous cases, namely that the existing practices were sufficient and effective while the justification for determining whether the intended action of the proposal, that is to remove unfair competition and establish equal conditions for local and posted workers, could be best achieved at the EU level was too succinct. This point was made by the Bulgarian National Assembly, the Czech Chamber of Deputies, the Czech Senate, the Croatian Parliament, the Hungarian National Assembly, the Latvian Saeima, the Polish Sejm, the Romanian Senate, and the National Council of the Slovak Republic. Following its review of the arguments, the Commission reaffirmed that the Posted workers proposal did not breach the subsidiarity principle and that ‘a withdrawal or an amendment of that proposal is not required’.25 The proposal was maintained on the grounds that the issue under consideration was a cross-border activity, implying an EU level solution. The Commission concluded that ‘the obligation for all Member States to apply these rules in all sectors of the economy cannot be established at national level but…respects the competence of Member States to set wages in accordance with national practices’.26 At present, the discussion of the Posted workers proposal between both co-legislators, the Council and the European Parliament, is still under way. The Commission also seems to continue consultations with national parliaments in an attempt to find a compromise solution.27 MECHANICS OF THE MECHANISM Protocol 2 establishes ‘the need to justify EU interference’28 and states that the proposed draft legislation should respect the principle of subsidiarity and contain a detailed statement making it possible to appraise compliance with the subsidiarity principle (Article 5). Therefore, within the framework of the Mechanism, the Commission is under a duty to justify its legislative proposals, in terms of the subsidiarity principle, to national parliaments. It is not national parliaments that have to prove beyond doubt that challenged legislative proposals contain subsidiarity violations, but the Commission is responsible for providing a clear explanation of why it believes that proposals comply with the requirements of subsidiarity. In the absence of a comprehensive explanation, national parliaments may conclude that it has not been proven that a proposal complies with the subsidiarity principle as happened in all three yellow card cases. The main argument raised by national parliaments in their reasoned opinions is usually an insufficient subsidiarity justification of the challenged proposals. However, the common approach in the Commission practice is to dismiss this argument on the basis that it is not ‘directly connected to the strict definition of the subsidiarity principle’29 as laid down in Article 5 of TEU and contains no clarifications on why it is not necessary to take action at the EU level. Another distinctive feature of subsidiarity review is a liberal interpretation of subsidiarity by national parliaments. In practical terms, the scrutiny of the subsidiarity principle under the Mechanism includes not just subsidiarity violations. National parliaments review the legal basis of a proposal and may find it incorrect (the first yellow card). From their point of view, challenged proposals sometimes are deemed as going beyond the assumed goal or deviating from the goal(s) stated in the legal basis. Another common element of the subsidiarity review under the Mechanism is the monitoring of the application of the proportionality principle when chambers decide if a choice of means of achieving a goal is reasonable. For example, the arguments included in the reasoned opinions in favor of a collegial structure of the European Public Prosecutor’s Office were more related to the principle of proportionality than to the subsidiarity principle (the second yellow card). Indeed, the upper house of the French Parliament expressly argued that ‘in proposing a “centralized” structure the proposal exceeds what is necessary to achieve the objectives of the Treaties, echoing the language of Article 5(4) TEU (principle of proportionality)’.30 Finally, national legislatures also evaluate the merits of a Commission legislative draft (the second and third yellow cards). In relation to the uncertainty surrounding the scope of subsidiarity review, Federico Fabbrini and Katarzyna Granat pose the following questions: ‘What should subsidiarity review comprise? Should national parliaments review only the strict question whether a legislative measure should be adopted by the EU or by the MS [Member States]? Or should national parliaments also consider the proportionality or necessity of the measure, the adequacy of its legal basis and its substance?’31 Of course, subsidiarity is a dynamic concept that ‘allows Community action within the limits of its powers to be expanded where circumstances so require, and conversely, to be restricted or discontinued where it is no longer justified’. This is outlined in Article 3 of Amsterdam protocol on the application of the principles of subsidiarity and proportionality. The boundary separating the EU sphere of competence from that of Member States is not ‘a precisely demarcated borderline but rather an indistinct frontier insofar as EU action may or may not be warranted under particular circumstances’.32 A decision by the EU on whether to exercise the legislative competence involves various forms of reasoning, including the provision of a legal basis and the determination of how to exercise the legislative competence. National parliaments, as ‘gatekeepers’ of European integration, should be empowered to ensure that the EU only exercises those powers that have been conferred on it by the Member States. Their subsidiarity review therefore should encompass ‘the evaluation of the principle of conferral, legal basis and proportionality of proposed EU legislation’.33 It would be fair to say that the Mechanism is insufficient in this regard. Protocol 1 only affirms that a national parliament shall specify ‘why it considers that the draft in question does not comply with the principle of subsidiarity’ and the Commission should reply to the national parliaments’ reasoned opinions by justifying ‘why it considers that the proposal complies with the principle of subsidiarity’ (Article 7). The questions of conferral, legal basis and proportionality formally remain outside of the scope of the Mechanism even though they are linked to the issue of EU vs. national regulation. This loophole is, to some extent, remedied by the so-called Barroso Initiative launched in 2006. This initiative sets the framework for transmission of new Commission legislative proposals directly to national parliaments with a view ‘to improving the processes of policy formulation and deliberation’.34 Due to its ‘informal and entirely non-binding nature’,35 the Barroso platform promotes a more intensive political communication between the Commission and national parliaments by requesting the former to consider all concerns of national parliaments. Over the seven years (2010–16), 350 reasoned opinions were issued under the Mechanism. This was approximately ten times lower than the number of opinions submitted by parliaments in the framework of the Barroso Initiative.36 National parliaments are much more interested in the substance of the proposals, thus focusing on the political analysis of legislative drafts. They seek not to narrow their scrutiny efforts down to perform only the ‘level’ check, but endeavor to add political value to the EU legislative process. To some extent, it is inherent in the nature of national parliaments since they are mostly political actors and are not expected to think and operate ‘in a court-like manner’.37 ‘They [national parliaments] are not in the best position to engage in a strict scrutiny of subsidiarity in legal terms’.38 National parliaments are designed to produce legislation and they are acting like legislators, possessing a deliberative power to intervene into the EU legislative process. ‘DOUBLE DUTY’ Strict control over the principle of subsidiarity is particularly important for national parliaments as their law-making role at an EU level has been limited recently by the expanded legislative authority of the European Parliament, the frequent use of qualified majority voting and the widespread reliance on soft law. Since adoption of the Lisbon Treaty, chambers have been assigned a role of ultimate ‘guardians’ of the principle of subsidiarity ‘whose law-making powers are liable to be curtailed by a decision that a certain matter be regulated at the Union level, so they [national parliaments] ought to be alert to possible infringements of the principle [subsidiarity]’.39 As they possess the democratic legitimacy primarily based on their proximity to the people, national parliaments are well placed to police the subsidiarity principle while still remaining deeply involved in national affairs. Being, for the most part, directly elected representative bodies, national parliaments, by virtue of being vested with the subsidiary control function in the framework of the Mechanism, are able to recover some influence in the EU legislative process and thus contribute to a greater democratic accountability in the EU’s legislative procedure. Unlike national chambers, ‘the European Parliament does not share many of the democratic credentials of national parliaments, remains distant from citizens and may be viewed as part of the legitimacy problem’.40 An increase in the powers of the European Parliament and its diversified cooperation with national parliaments41 add value to the parliamentary dimension of EU law-making but cannot be instrumental in ensuring democratic legitimacy or public accountability for the approved actions. ‘It is not a “zero sum” game: greater involvement for one should not be at the expense of the other’.42 The powers of national parliaments in areas that are under the competence of Member States and involve coordination at the European level should not be constrained by the European Parliament since the responsibility for such decisions and their consequences in Member States is attached to national parliaments, not the European Parliament. According to Charles Grant, EU democratic legitimacy cannot rely on a stronger role of the European Parliament but should rather arise from the empowerment of national parliaments in order ‘to make the EU as a whole more legitimate’.43 Since national parliaments are the main drivers of the Mechanism, it allows the Mechanism to combine the subsidiarity principle with democratic legitimacy. The Mechanism serves as a ‘bridge’ that ensures a connection of EU citizens to the decision-making activity at an EU level and legitimizes European legislation on the basis of the strong ties of national parliaments with their electorate. Keeping an eye on subsidiarity, national parliaments advance democratic legitimacy, that is they do ‘double duty’,44 to put it in the terms of Jean-Victor Louis. Yet, they are good at both disciplines with no conflicting interests involved: ‘they [national parliaments] look at their voters when answering questions of subsidiarity’.45 ‘LAST LINE OF DEFENSE’ The political role of national parliaments in the European law-making process was reinvigorated after the Lisbon Treaty had provided the Mechanism as the facility that allowed chambers to challenge EU proposals against the requirements of subsidiarity through a direct dialogue with EU institutions. However, it is true that national parliaments today are not so much involved in interacting with EU legislative institutions but concentrate instead on holding their ministers to account and influencing their positions. The situation is similar to the pre-Lisbon setting where national parliaments were regarded as ‘government watchdogs’ seeking to establish greater parliamentary scrutiny of the ministers and direct their respective cabinets as far as possible. However, a closer link to their governments as a part of the existing national constitutional arrangements46 provides national parliaments with the power that allows them, in the words of Antonio Estella, to ‘raise a last line of defense’47 in the Council. In accordance with Article of 10 TEU, the Council is formed by ministers who ‘are democratically responsible before their national parliaments’ and thus not controlled by political bodies at the European level. As chambers ‘play their part mainly on the executive side of representation, by providing a democratic base for their governments to act within the Council’,48 the door is open for the Council to be fully involved in discussing subsidiarity concerns expressed by national parliaments in relation to EU legislative proposals. If subsidiarity concerns are not taken into account by the Commission, chambers are likely to enable their cabinets to vote against the proposal being discussed in the Council to make sure their questions with regard to subsidiarity are heard and responded to. In the case study of the first yellow card in 2012, the objections of national parliaments were not the main factor: it was the imminent confrontation within the Council that induced the Commission to withdraw the proposal: ‘the mere political force of their [national governments’] opposition did play a factor’.49 Since the unanimous approval was required in the Council (Article of 352 TFEU), it was clear that the proposal would not get sufficient backing given that national ministers sitting in the Council were explicitly directed by national parliaments to vote down the legislation. In that case, the Council played the role of the ‘transmission belt’50 between chambers and the Commission. It was a meeting of minds between national parliaments and respective government representatives on how to block the EU proposal. However, it is not a cut and dry solution. The Council’s role as the ‘transmission belt’ should not be overestimated or taken too far; it may result in the EU legislative process ‘being used as a political football in a domestic dispute between [national] government and [national] parliament’51 and turn the Mechanism into ‘a damaging—and ultimately illegitimate—tool for national vetoes on the EU law-making process’.52 By introducing the Mechanism, the Lisbon Treaty stressed the political importance of the preventive monitoring of the subsidiarity principle as a ‘political principle on legislative arena’53 or, in other words, a legislative review principle.54 The intention of Protocol 2 was to establish an early warning facility through the procedures of yellow and orange cards but not ‘to transform national parliaments into co-legislatures at the EU level, next to the European Parliament and Council’.55 Subsidiarity concerns brought forward by national legislators therefore need to be addressed in a way that neither alters the institutional balance of the EU legislative framework, that is leaves the final decision on EU draft legislation with the EU legislator, nor upsets the Mechanism as a pure consultative vehicle providing national parliaments with the deliberative power to intervene in the EU legislative process. To have their subsidiarity concerns taken seriously and respected, national parliaments should make an agreement with the relevant EU institution at the earliest possible stage of the EU legislative process when it is realistic to review a challenged proposal without impairing its initiator’s political interests. The importance of this type of early deliberation on subsidiarity reinforces the need for a broader political dialogue between national parliaments and the Commission as the main EU legislative proponent. ‘ONLY THROUGH DIALOGUE’ The Barroso Initiative has been introduced in a bid to ‘offer a dialogue which will allow national parliaments to be…more actively engaged at an early stage in the preparation and formation of European policy’.56 Since 2009, the Barroso Initiative has been used in parallel with the Mechanism, though some believe that the initiative is actually blended with the Mechanism into ‘one hybrid procedure with two purposes’.57 The Commission itself considers the Barroso Initiative and the Mechanism as ‘two sides of the same coin’.58 National parliaments do not send different sets of opinions to the Commission; their opinions consist of two parts which serve simultaneously for the purposes of the Barroso Initiative and the Mechanism. As a rule, national parliaments raise concerns that are not strictly subsidiarity related, thus jumping outside the boundaries of the Mechanism under Article 7 of Protocol 1. In practical terms, the Barroso Initiative is a more utilitarian instrument for voicing the views of national parliaments as compared to the Mechanism. All three yellow cards happened thanks to a system of relationships developed under the Barroso Initiative making it obvious that the informal political dialogue has become a core element of the formal procedures of the Mechanism. In other words, ‘the SCM [Mechanism] is likely to work only through…[political] dialogue’.59 National parliaments are capable of adding substantive political value to the EU legislative process when they succeed in the political dialogue with the Commission, and it is better to start working on it in advance. As Federico Fabbrini states, ‘subsidiarity can best be secured at an early stage of the legislative process’.60 Quite often, the Commission, the Council, and the European Parliament engage in informal ‘trialogues’ and agree on a certain piece of legislation before it has been formally introduced. It means that national parliaments need to monitor subsidiarity at the dawn of the legislative process before the proposal goes public and it gets too late or too costly to challenge it on subsidiarity grounds. This goes beyond the submission of reasoned opinions on draft legislation acts; the role of parliaments is seen not only as the ‘guardians’ of the subsidiarity principle, in line with the established procedures of yellow and orange cards, but also as active contributors to the EU legislative process which would encourage the Commission to shepherd its proposals through a much more collaborative, yet not formally enforced, procedure, the so-called green card. The green card is a non-binding instrument that is currently emerging as a joint endeavor by national parliaments to create a platform for conveying constructive concerns to the Commission early in the game, while still preserving the Commission’s monopoly right of initiative as per the Lisbon Treaty. Under the green card facility, the Commission remains independent in legislative drafting whereas national parliaments step in not as veto-players but as partners that participate together with the Commission in the reshaping of EU draft legislation. As it precedes the Mechanism, the green card instrument allows to avoid some pitfalls of the existing tools. The current procedure of issuing reasoned opinions may be described as ‘half-baked’: it requires the Commission, in a somewhat irrational way, to re-assess a draft legislation despite the fact that it has already been declared as being compliant with the principle of subsidiarity. Under the green card initiative, the Commission can launch a discussion on subsidiarity implications with national parliaments before it formally presents an express subsidiarity justification of the published proposal and gives an assessment of its compliance with the principle of subsidiarity in impact assessments and explanatory memoranda. This could potentially lead to a reduction in a number of subsidiarity concerns raised by national parliaments under the Mechanism and, eventually, to the enhanced potential of subsidiarity as a better regulation principle in the EU. CONCLUSION The Lisbon Treaty has turned national parliaments into ‘European institutions’ by recognizing, for the first time, that the Member States’ chambers ‘contribute actively to the good functioning of the Union’ (Article of 12 TEU). Empowered to perform subsidiarity review, national parliaments have been able to take part in the EU governance, not only as ‘governmental watchdogs’ that scrutinize ‘the conduct of national governments on issues of…their voting on EU measures at the Council’,61 but also as ‘subsidiarity watchdogs’ that delve into the issues of exercising European legislative powers in the areas of non-exclusive EU competence. As George Bermann states, today ‘Europe has looked to the national parliaments for a defense of subsidiarity, to the extent, that is, that the EU institutions themselves may have failed to exercise the requisite self-restraint’.62 However, the instruments put in place for national parliaments have been poorly designed. In the framework of currently prescribed procedures of yellow and orange cards, the Commission is legally bound to provide responses to reasoned opinions of national parliaments but has no obligation to reconsider the proposal on the grounds of subsidiarity concerns. Reasoned opinions of national parliaments do not have direct legal effect and there are no legal instruments to sanction the Commission for disregarding these concerns as only political tools are available as it happened in the case of the first yellow card. As the monopoly right to initiate legislation belongs to the Commission, it always finds itself in a win–win situation ‘without posing too great a risk of jeopardizing its original blueprint’.63 The main problem that should be addressed, therefore, is the limited capability of the Mechanism to create a framework for dealing with subsidiarity concerns caused by the dominance of the Commission in its relations with national parliaments. Another key question is whether national parliaments can still wield influence on final legislative outcomes in the EU through the existing procedures of yellow and orange cards. The foregoing analysis suggests that the short answer is no: acting alone, national parliaments are not capable of forwarding on a decision leading to the amendment or rejection of an action challenged as contravening subsidiarity. However, they can do so in concert with relevant EU institutions, either by making a political agreement with the Commission or, if this is not feasible, by driving the Council to block a challenged proposal. Finally, keeping in mind that the Council’s intervention in subsidiarity-related disputes between the Commission and national parliaments may generate harmful side effects, the chambers should do their best to be involved in a deal-making process at the earliest possible stage and try to shape the Commission’s position under the green card tool. Since this procedure unfolds with the first light of the EU legislative process, the green card is the most advantageous way to implement subsidiarity for national parliaments: it provides them with a possibility ‘to influence the direction in which the EU is developing in setting the EU’s agenda’64 that fits perfectly ‘the understanding of national parliaments as legisprudential actors’.65 Footnotes 1 European Commission ‘Proposal for a Council Regulation on the Exercise of the Right to Take Collective Action Within the Context of the Freedom of Establishment and the Freedom to Provide Services’. COM (2012) 130 final. 2 F Fabbrini and K Granat ‘“Yellow Card, but No Foul”: The Role of the National Parliaments under the Subsidiarity Protocol and the Commission Proposal for an EU Regulation on the Right to Strike’ [2013] CML Rev 50, 115, 143. 3 M Bartl ‘The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit’ [2015] Eur L J 21, 23, 24. 4 GA Moens and J Trone ‘The Principle of Subsidiarity in EU Judicial and Legislative Practice: Panacea or Placebo’ [2015] J Legis 41, 65, 96. 5 I Cooper ‘A “Virtual Third Chamber” for the European Union? National Parliaments after the Treaty of Lisbon’ [2012] West Eur Politics 35, 441, 461. 6 J-V Louis ‘National Parliaments and the Principle of Subsidiarity – Legal Options and Practical Limits’ [2008] Eur Const L Rev 4, 429, 438. 7 Cooper, above n 5 at 441. 8 Ph Norton ‘Parliaments: A Framework for Analysis’ [1990] West Eur Politics 13, 1, 9. 9 Cooper, above n 5 at 448. 10 M-T Paulo ‘National Parliaments in the EU: After Lisboa and beyond Subsidiarity – The (Positive) Side-effects and (Unintended) Achievements of the Treaty provisions’, OPAL Online Paper No 5/2012, 2012, at 13, www.ru.scribd.com/document/203130508/National-Parliaments-in-the-EU-after-Lisbon-treaty-and-Beyond-Subsidiarity/, accessed 30 July 2016. 11 I Cooper ‘The Watchdogs of Subsidiarity: National Parliaments and the Logic of Arguing in the EU’ [2006] JCMS 44, 281, 304. 12 R Corbett ‘The Evolving Roles of the European Parliament and of National Parliaments’ in A Biondi et al. (eds) EU Law after Lisbon (Oxford: Oxford University Press 2012), 240, 258. 13 S Weatherill ‘Finding a Role for the Regions in Checking the EU’s Competence’ in S Weatherill and Ulf Bernitz (eds) The Role of Regions and Sub-National Actors in Europe (Essays in European Law) (Oxford: Hart 2005), 131, 147. 14 T Risse ‘“Let’s Argue!”: Communicative Action in World Politics’ [2000] Int Organ 54, 1, 34. 15 Cooper, above n 11 at 302. 16 L Heleno Terrinha ‘The Legisprudential Role of National Parliaments in the European Union’, Briefing, European Parliament, 2017, No PE 583.133, 3, www.europarl.europa.eu/RegData/etudes/BRIE/2017/583133/IPOL_BRI(2017)583133_EN.pdf, accessed 30 May 2017. 17 Cooper, above n 5 at 460. 18 UK Government ‘Review of the balance of competences between the United Kingdom and the European Union: Subsidiarity and Proportionality’, Report, 2014, 80, www.gov.uk/government/uploads/system/uploads/attachment_data/file/388852/BoCSubAndPro_acc.pdf, accessed 15 December 2016. 19 European Commission ‘Annual Report 2012 on Subsidiarity and Proportionality’. COM (2013) 566 final, 7. 20 European Commission ‘Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office’. COM (2013) 534 final. 21 European Commission ‘Annual Report 2013 on Subsidiarity and Proportionality’. COM (2014) 506 final, 9. 22 European Commission ‘Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Review of the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office with regard to the Principle of Subsidiarity, in Accordance with Protocol No 2’. COM (2013) 851 final, 6. 23 Ibid, 9. 24 European Commission ‘Proposal for a Directive of the European Parliament and of the Council Amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services’. COM (2016) 128 final. 25 European Commission ‘Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Proposal for a Directive Amending the Posting of Workers Directive, with regard to the Principle of Subsidiarity, in Accordance with Protocol No 2’. COM (2016) 505 final, 9. 26 European Commission ‘Posting of Workers: Commission Discusses Concerns of National Parliaments’, press release, 20 July 2016, www.europa.eu/rapid/press-release_IP-16-2546_en.htm/, accessed 30 July 2016. 27 European Commission ‘Annual Report 2016 on Subsidiarity and Proportionality’. COM (2017) 600 final, 14–17. 28 P Popelier ‘Governance and Better Regulation: Dealing with the Legitimacy Paradox’ [2011] Eur Public L 17, 555, 564. 29 European Commission ‘Annual Report 2012 on Subsidiarity and Proportionality’. COM (2013) 566 final, 7. 30 European Commission ‘Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Review of the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office with Regard to the Principle of Subsidiarity, in Accordance with Protocol No. 2’. COM (2013) 851 final, 10. 31 Fabbrini and Granat, above n 2 at 120. 32 I Cooper ‘Is the Early Warning Mechanism a Legal or a Political Procedure? Three Questions and a Typology’ in AJ Cornell and M Goldoni (eds) National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon (Oxford: Hart 2017), 30, 41. 33 P Kiiver The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality (New York: Routledge 2012), 98. See also Cooper, above n 32 at 41. Some authors argue against the extension of the scope of subsidiarity review performed by national parliaments. For example, see N Barber ‘Subsidiarity in the Draft Constitution’ [2005] Europhys Lett 11, 197; G Davies ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time’ [2006] CML Rev 43, 67–68; Fabbrini and Granat, above n 2 at 121; F Fabbrini ‘The Principle of Subsidiarity’, iCourts Working Paper No 66, 2016, forthcoming in T Tridimas and R Schütze (eds) Oxford Principles of EU Law (Oxford: Oxford University Press 2016), 3, 20–21, www.papers.ssrn.com/sol3/papers.cfm?abstract_id=2781845/, accessed 22 March 2017. 34 European Commission ‘Communication from the Commission to the European Council: A Citizens’ Agenda: Delivering Results for Europe’. COM (2006) 211 final, 3. 35 D Jancic ‘The Barroso Initiative: Window Dressing or Democracy Boost?’ [2012] Utrecht L Rev 8, 78, 83. 36 In more details, see annual reports of the Commission on subsidiarity and proportionality. 37 Kiiver, above n 33 at 76. 38 C Fasone ‘Competing Concepts of Subsidiarity in the Early Warning Mechanism’, LUISS Guido Carli School of Government Working Paper No SOG-WP4/2013, 2013, 20, www.papers.ssrn.com/sol3/papers.cfm?abstract_id=2243503/, accessed 30 July 2016. 39 A Dashwood ‘The Relationship between the Member States and the European Union/European Community’ [2004] CML Rev 41, 355, 368. 40 European Union Select Committee ‘The Role of National Parliaments in the European Union: Written Evidence’, 2013, 40, www.publications.parliament.uk/pa/ld201314/ldselect/ldeucom/151/151.pdf/, accessed 13 August 2016. 41 The interaction between national parliaments and the European Parliament takes various forms that must be limited to legislative matters. In the literature, this type of interaction is linked to the concept of the ‘multi-level parliamentary field’. See B Crum and JE Fossum ‘The Multilevel Parliamentary Field: A Framework for Theorizing Representative Democracy in the EU’ [2009] Eur Polit Sci Rev 1, 249, 270. 42 European Union Select Committee, above n 40 at 33. 43 C Grant et al. ‘How to build a modern European Union’, CER Report, 2013, 9, www.cer.org.uk/sites/default/files/rp_119.pdf/, accessed 15 December 2016. 44 Louis, above n 6 at 455. 45 J Peters ‘National Parliaments and Subsidiarity: Think Twice: Articles EC 5; Draft Convention I-9(3); Protocol on the Application of the Principles of Subsidiarity and Proportionality’ [2005] Eur Const L Rev 1, 68, 71. 46 For more details, see A-M Palsson ‘The EU’s Principle of Subsidiarity – An Empty Promise’, Report, 2013, 22, www.eudemocrats.org/eud/uploads/AMP_Subsidiarity_an_empty_promise_2013.pdf/, accessed 13 August 2016. 47 A Estella The EU Principle of Subsidiarity and its Critique (Oxford: Oxford University Press 2002), 53. 48 K. Neunreither ‘Political Representation in the European Union: A Common Whole, Various Wholes or Just a Hole?’ in K. Neunreither and A. Wiener (eds), European Integration after Amsterdam: Institutional Dynamics and Prospects for Democracy (Oxford: Oxford University Press, 2000), 145. 49 D Jancic ‘Representative Democracy across Levels: National parliaments and EU Constitutionalism’ [2012] Croat Ybk Eur L Policy 8, 227, 263. 50 O Pimenova ‘Subsidiarity as a “Regulation Principle” in the EU’ [2016] Theory Pract Legis 4, 381, 397. 51 W Slealth ‘The Role of National Parliaments in European Affairs’ in G Amato et al. (eds) Genèse et Destinée de la Constitution européenne – Genesis and Destiny of the European Constitution (Brussels: Bruylant 2007) at 563. 52 Fabbrini, above n 33 at 23. 53 G Bermann ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’ [1994] Colum L Rev 94, 331, 456. 54 For more details, see Moens and Trone, above n 4 at 102; Cooper, above n 11 at 288; Davies, above n 33 at 84; M Kumm ‘Constitutionalizing Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union’ [2006] Eur L J 12; 503, 533; R Schütze ‘Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism?’ [2009] CLJ 68, 525, 536. 55 Fabbrini, above n 33 at 21. 56 House of Lords, EU Committee, ‘The EU Reform Treaty: Work in Progress’, 19 September 2007, 14, publications.parliament.uk/pa/ld200607/ldselect/ldeucom/180/180.pdf, accessed 22 November 2017. 57 Jancic, above n 35 at 91. 58 European Commission ‘Annual Report 2009 on Relations between the European Commission and National Parliaments’. COM (2010) 291 final, 8. 59 K Korhonen ‘Guardians of Subsidiarity—National Parliaments Strive to Control EU Decision-Making’, FIIA Briefing Paper No. 84, 2011, at 7. 60 Fabbrini, above n 33 at 9. 61 K Auel and T Christiansen ‘After Lisbon: National Parliaments in the European Union’ [2015] West Eur Politics 38, 261, 280. 62 G Bermann ‘The Lisbon Treaty: The Irish “No”.: National Parliaments and Subsidiarity’ [2008] Eur Const L Rev 4, 453, 455. 63 Jancic, above n 35 at 81. 64 C Fasone and D Fromage ‘From Veto Players to Agenda-Setters? National Parliaments and Their “Green Card” to the European Commission’ [2016] Maastricht J Eur Comp L 23, 294, 315. 65 Heleno Terrinha, above n 16 at 4. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

National Parliaments in Subsidiarity Review: From Guardians to Partners

Statute Law Review , Volume Advance Article – Feb 10, 2018

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Abstract

Abstract With a clear emphasis on substantive political value that national legislatures are able to bring to the EU legislative process, this paper attempts to overcome skepticism about deepening national parliaments’ direct involvement in the decision-making process at the European level. The role of national parliaments in advancing their subsidiarity concerns within European law-making may be strengthened through a more intensive political dialogue with the Commission, when the former acts not just as the ‘guardians’ of the subsidiarity principle (in the framework of the existing yellow and orange card schemes) but also as active contributors to the law-making process encouraging the Commission to leverage the so-called green card procedure. Complemented by the yellow and orange card provisions, it forms a three-element subsidiarity review mechanism perfectly capable of dealing with subsidiarity concerns of national parliaments at various stages of the EU law-making process, thus transforming the chambers from wardens into partners working together with the Commission to reshape EU legislative proposals for the sake of better regulation. INTRODUCTION Since 2009, national parliaments have been empowered by primary legislation to review legislative proposals of the EU on the grounds of subsidiarity with the use of the so-called subsidiarity control mechanism (the Mechanism). In the following years, it became evident that the effectiveness of the Mechanism was significantly limited with just three yellow cards triggered and one piece of legislation actually revoked in nine years. The Commission acted defensively when dealing with all three yellow cards. It dismissed all subsidiarity concerns of national parliaments as not strictly related to a subsidiarity violation itself and concluded that the challenged legislative proposals had not constituted a breach of the subsidiarity principle. In the case of the Proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services1 (the Monti II proposal), national parliaments eventually agreed that the challenged bill fully complied with the subsidiarity principle thus accepting that the yellow card was a ‘misuse’2 or a ‘creative use’,3 to say the least, of the Mechanism. For national parliaments, it is not an easy task to look for violations of subsidiarity in EU legislative proposals. As a principal lawmaker, the Commission has successfully internalized the subsidiarity principle and introduced numerous instruments to secure the respect of subsidiarity under the European regulation policy (impact assessments, roadmaps, and explanatory memoranda). The Commission has developed strong internal expertise in ensuring that bills meet the requirements of subsidiarity by means of rigorous procedures of consultations and discussions. National parliaments can challenge any EU legislative proposal that they do not favor for political reasons under the cover of subsidiarity and they follow this track in a consistent manner. With all three yellow cards, the Mechanism was used even though the parliaments were not able to detect significant subsidiarity violations in the Commission’s proposals, especially since these proposals were dealing with cross-border issues falling outside of the regulatory competence of Member States by definition. The clear political motivation behind reasoned opinions supports the view that the Mechanism is potentially a ‘political [not legal] tool for the protection of subsidiarity’4 and is of the same nature as the common vote of no confidence in parliaments where the value of this control instrument is not dependent on how often political actors are using it and to what effect. As Ian Cooper states, ‘the Mechanism is “hard core” within a much broader, non-binding deliberative exchange among NPs [national parliaments] and EU institutions’.5 Therefore, national parliaments may keep using the Mechanism for political ends, but they are also expected to develop meaningful interaction with the EU institutions and, particularly, with the Commission as the main EU legislative proponent if they want to strengthen their role in the EU legislative process. DELIBERATIVE MECHANISM Under Article 3 of Lisbon protocol on the role of national parliaments in the European Union (Protocol 1), national parliaments can provide a ‘reasoned opinion’ if a draft legislative act does not meet subsidiarity requirements in their view. Parliaments can also uphold the subsidiarity principle in the EU legislative process by submitting their reasoned opinions directly to the EU institution which proposes the legislation in accordance with the procedures laid down in Lisbon protocol on the application of the principles of subsidiarity and proportionality (Protocol 2). Protocol 2 has introduced two procedures known as yellow and orange cards. The reasoned opinions under these procedures are counted based on the system, according to which each parliament has two votes irrespective of the number of its chambers. A minimum of one third of the votes is required to trigger a yellow card (or one quarter in the areas of freedom, security, and justice), and though it is not mandatory for the Commission to amend or withdraw the challenged proposal when it faces a yellow card, it must nevertheless justify its approach and substantiate the decision. The orange card tool is activated when the total of reasoned opinions submitted by national parliaments represents at least 50 per cent of the votes. In this situation, an action under consideration must be reviewed by the Commission and, even if it maintains its original proposal, the Council and the European Parliament may turn it down in the first reading for reasons of subsidiarity non-compliance. As Jean-Victor Louis notes, a ‘soccer analogy’ is in place for the yellow card and a ‘traffic light analogy’6 may be drawn for the orange card. The so-called red card procedure, which extends the soccer game metaphor, was discussed before the Lisbon Treaty, but currently Protocol 2 does not envisage it precluding national parliaments from directly vetoing EU legislation. However, national parliaments can ‘have a hand in blocking an EU legislative proposal’7 using the orange card which bestows some decision-making power on them. For this purpose, parliaments should act in concert with the Council or the European Parliament. Acting independently, national parliaments have no power to change or reject an EU legislative proposal. According to Ph. Norton, the orange card procedure has given national parliaments a ‘policy-influencing’8 role in the EU legislative process in a way that enables them to ‘contribute [emphasis added] to the modification or rejection of legislative proposals’.9 The Mechanism serves as a ‘collective warning of difficulties to be addressed by the EU institutions’10 and as a forum where national parliaments can state their position on a proposal without undermining the legislative process. Some positive impacts brought about by the Mechanism include a ‘more active involvement of national parliaments on EU matters’,11 a ‘greater flow of information back and forth, both among national parliaments and between them and the European institutions’,12 and a ‘more open process of deliberation about the reasons and techniques of EU rulemaking’.13 In contrast to a situation of standard legislative bargaining governed by the ‘logic of consequences’,14 the Mechanism stimulates a policy dispute between the Commission and national parliaments over whether and how the EU should legislate—the dispute is governed by the ‘logic of arguing’15 ‘with the expected systemic advantage of making each part responsive to the arguments and concerns of the others’.16 Therefore, the success of the Mechanism depends on the quality of the deliberations of national parliaments and their political dialogue with EU institutions rather than the rigorousness of their reasoned opinions. The Mechanism is much more important for national parliaments as a deliberative tool allowing them to benefit from the political discourse. As long as ‘the subsidiarity debate is a political debate’,17 national parliaments tend to utilize the Mechanism as a valuable channel for challenging subsidiarity justifications of EU legislative proposals in the form of political claims. One of the positive consequences of the Mechanism is that a more rigorous discourse on subsidiarity justifications results in stronger, more subsidiarity-compliant, legislation as the EU institutions are forced to sharpen arguments concerning the necessity of EU action. Besides, as long as the Mechanism deepens engagement of national parliaments with the EU agenda, the Commission is forced to provide a more compelling justification for its proposals in order to avoid a potential barrage of criticism from the chambers. Albeit not granting ‘teeth’ to national parliaments, the Mechanism presses the EU legislator to think twice before exercising its legislative powers. PRACTICALITIES OF THE MECHANISM In 2012, after issuing 12 reasoned opinions on the Monti II proposal, national parliaments triggered the first yellow card. Most parliaments questioned the appropriateness of the use of Article 352 of TFEU by the EU as the legal basis for the proposal and concluded that the justification for EU action provided by the Commission was insufficient. For example, the UK House of Commons considered that the Commission’s explanatory memorandum and impact assessment were both ‘largely based on perceptions of a need to act, which are necessarily subjective, in contrast to objective evidence of a need to act’.18 Some chambers were not convinced of the added value of the Monti II proposal and assumed that the challenged legislation would not contribute to greater legal clarity and certainty.19 Since the expressed concerns were not strictly based on the principle of subsidiarity, the Commission affirmed that no breach of the subsidiarity principle had occurred stricto sensu. In responses provided to the reasoned opinions, the Commission explained that the purpose of the Monti II proposal was to elaborate the general principles and rules to be applied at the supranational level; it was impossible for the Member States to perform this task individually. The Monti II proposal was eventually revoked. According to the Commission, it was done not because the Commission wanted to accommodate subsidiarity concerns, but to avoid possible political frictions within the Council. In 2013, the Commission received the second yellow card against the proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office20 (the EPPO proposal). Parliaments submitted 13 reasoned opinions with objections that could have been summarized as follows: ‘the Commission had not sufficiently explained how the EPPO proposal complied with the subsidiarity principle’.21 Parliaments claimed that the Commission had failed to demonstrate a clear need for an EU wide solution to achieve the policy aim of making the fight against fraud more effective across the EU. According to the objections voiced by the parliaments, existing mechanisms for coordination of investigations and prosecutions as well as ongoing anti-fraud activities at the national level were sufficient to solve the problem. The Swedish Riksdag, the UK House of Commons, and the Parliament of Cyprus pointed out that the Commission should have waited for the adoption of its proposed directive on the fight against fraud to the EU financial interests by means of criminal law before introducing new legislation in this field. The UK House of Commons also assumed that the Commission had not sufficiently examined measures to prevent fraud.22 In some national parliaments’ reasoned opinions, the added value of the EPPO proposal appeared to be marginal or non-existent. In this regard, the Czech Senate expressed the concern that the EPPO proposal was lowering procedural standards and the Parliament of Cyprus stated that, as the list of investigative measures would include measures not allowed under national law, it would not ensure the necessary level of protection.23 That notwithstanding, the Commission decided to push the EPPO proposal forward making no changes and concluding that the explanatory memorandum and the accompanying legislative financial statement did provide a sufficient and detailed explanation of why EU-level action was necessary and appropriate. The third yellow card was issued in 2016 when 14 chambers of national parliaments submitted reasoned opinions in relation to the Proposal for a Directive of the European Parliament and of the Council amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services24 (the Posted workers proposal). The subsidiarity arguments voiced in the reasoned opinions were mostly based on the same assumptions as in the two previous cases, namely that the existing practices were sufficient and effective while the justification for determining whether the intended action of the proposal, that is to remove unfair competition and establish equal conditions for local and posted workers, could be best achieved at the EU level was too succinct. This point was made by the Bulgarian National Assembly, the Czech Chamber of Deputies, the Czech Senate, the Croatian Parliament, the Hungarian National Assembly, the Latvian Saeima, the Polish Sejm, the Romanian Senate, and the National Council of the Slovak Republic. Following its review of the arguments, the Commission reaffirmed that the Posted workers proposal did not breach the subsidiarity principle and that ‘a withdrawal or an amendment of that proposal is not required’.25 The proposal was maintained on the grounds that the issue under consideration was a cross-border activity, implying an EU level solution. The Commission concluded that ‘the obligation for all Member States to apply these rules in all sectors of the economy cannot be established at national level but…respects the competence of Member States to set wages in accordance with national practices’.26 At present, the discussion of the Posted workers proposal between both co-legislators, the Council and the European Parliament, is still under way. The Commission also seems to continue consultations with national parliaments in an attempt to find a compromise solution.27 MECHANICS OF THE MECHANISM Protocol 2 establishes ‘the need to justify EU interference’28 and states that the proposed draft legislation should respect the principle of subsidiarity and contain a detailed statement making it possible to appraise compliance with the subsidiarity principle (Article 5). Therefore, within the framework of the Mechanism, the Commission is under a duty to justify its legislative proposals, in terms of the subsidiarity principle, to national parliaments. It is not national parliaments that have to prove beyond doubt that challenged legislative proposals contain subsidiarity violations, but the Commission is responsible for providing a clear explanation of why it believes that proposals comply with the requirements of subsidiarity. In the absence of a comprehensive explanation, national parliaments may conclude that it has not been proven that a proposal complies with the subsidiarity principle as happened in all three yellow card cases. The main argument raised by national parliaments in their reasoned opinions is usually an insufficient subsidiarity justification of the challenged proposals. However, the common approach in the Commission practice is to dismiss this argument on the basis that it is not ‘directly connected to the strict definition of the subsidiarity principle’29 as laid down in Article 5 of TEU and contains no clarifications on why it is not necessary to take action at the EU level. Another distinctive feature of subsidiarity review is a liberal interpretation of subsidiarity by national parliaments. In practical terms, the scrutiny of the subsidiarity principle under the Mechanism includes not just subsidiarity violations. National parliaments review the legal basis of a proposal and may find it incorrect (the first yellow card). From their point of view, challenged proposals sometimes are deemed as going beyond the assumed goal or deviating from the goal(s) stated in the legal basis. Another common element of the subsidiarity review under the Mechanism is the monitoring of the application of the proportionality principle when chambers decide if a choice of means of achieving a goal is reasonable. For example, the arguments included in the reasoned opinions in favor of a collegial structure of the European Public Prosecutor’s Office were more related to the principle of proportionality than to the subsidiarity principle (the second yellow card). Indeed, the upper house of the French Parliament expressly argued that ‘in proposing a “centralized” structure the proposal exceeds what is necessary to achieve the objectives of the Treaties, echoing the language of Article 5(4) TEU (principle of proportionality)’.30 Finally, national legislatures also evaluate the merits of a Commission legislative draft (the second and third yellow cards). In relation to the uncertainty surrounding the scope of subsidiarity review, Federico Fabbrini and Katarzyna Granat pose the following questions: ‘What should subsidiarity review comprise? Should national parliaments review only the strict question whether a legislative measure should be adopted by the EU or by the MS [Member States]? Or should national parliaments also consider the proportionality or necessity of the measure, the adequacy of its legal basis and its substance?’31 Of course, subsidiarity is a dynamic concept that ‘allows Community action within the limits of its powers to be expanded where circumstances so require, and conversely, to be restricted or discontinued where it is no longer justified’. This is outlined in Article 3 of Amsterdam protocol on the application of the principles of subsidiarity and proportionality. The boundary separating the EU sphere of competence from that of Member States is not ‘a precisely demarcated borderline but rather an indistinct frontier insofar as EU action may or may not be warranted under particular circumstances’.32 A decision by the EU on whether to exercise the legislative competence involves various forms of reasoning, including the provision of a legal basis and the determination of how to exercise the legislative competence. National parliaments, as ‘gatekeepers’ of European integration, should be empowered to ensure that the EU only exercises those powers that have been conferred on it by the Member States. Their subsidiarity review therefore should encompass ‘the evaluation of the principle of conferral, legal basis and proportionality of proposed EU legislation’.33 It would be fair to say that the Mechanism is insufficient in this regard. Protocol 1 only affirms that a national parliament shall specify ‘why it considers that the draft in question does not comply with the principle of subsidiarity’ and the Commission should reply to the national parliaments’ reasoned opinions by justifying ‘why it considers that the proposal complies with the principle of subsidiarity’ (Article 7). The questions of conferral, legal basis and proportionality formally remain outside of the scope of the Mechanism even though they are linked to the issue of EU vs. national regulation. This loophole is, to some extent, remedied by the so-called Barroso Initiative launched in 2006. This initiative sets the framework for transmission of new Commission legislative proposals directly to national parliaments with a view ‘to improving the processes of policy formulation and deliberation’.34 Due to its ‘informal and entirely non-binding nature’,35 the Barroso platform promotes a more intensive political communication between the Commission and national parliaments by requesting the former to consider all concerns of national parliaments. Over the seven years (2010–16), 350 reasoned opinions were issued under the Mechanism. This was approximately ten times lower than the number of opinions submitted by parliaments in the framework of the Barroso Initiative.36 National parliaments are much more interested in the substance of the proposals, thus focusing on the political analysis of legislative drafts. They seek not to narrow their scrutiny efforts down to perform only the ‘level’ check, but endeavor to add political value to the EU legislative process. To some extent, it is inherent in the nature of national parliaments since they are mostly political actors and are not expected to think and operate ‘in a court-like manner’.37 ‘They [national parliaments] are not in the best position to engage in a strict scrutiny of subsidiarity in legal terms’.38 National parliaments are designed to produce legislation and they are acting like legislators, possessing a deliberative power to intervene into the EU legislative process. ‘DOUBLE DUTY’ Strict control over the principle of subsidiarity is particularly important for national parliaments as their law-making role at an EU level has been limited recently by the expanded legislative authority of the European Parliament, the frequent use of qualified majority voting and the widespread reliance on soft law. Since adoption of the Lisbon Treaty, chambers have been assigned a role of ultimate ‘guardians’ of the principle of subsidiarity ‘whose law-making powers are liable to be curtailed by a decision that a certain matter be regulated at the Union level, so they [national parliaments] ought to be alert to possible infringements of the principle [subsidiarity]’.39 As they possess the democratic legitimacy primarily based on their proximity to the people, national parliaments are well placed to police the subsidiarity principle while still remaining deeply involved in national affairs. Being, for the most part, directly elected representative bodies, national parliaments, by virtue of being vested with the subsidiary control function in the framework of the Mechanism, are able to recover some influence in the EU legislative process and thus contribute to a greater democratic accountability in the EU’s legislative procedure. Unlike national chambers, ‘the European Parliament does not share many of the democratic credentials of national parliaments, remains distant from citizens and may be viewed as part of the legitimacy problem’.40 An increase in the powers of the European Parliament and its diversified cooperation with national parliaments41 add value to the parliamentary dimension of EU law-making but cannot be instrumental in ensuring democratic legitimacy or public accountability for the approved actions. ‘It is not a “zero sum” game: greater involvement for one should not be at the expense of the other’.42 The powers of national parliaments in areas that are under the competence of Member States and involve coordination at the European level should not be constrained by the European Parliament since the responsibility for such decisions and their consequences in Member States is attached to national parliaments, not the European Parliament. According to Charles Grant, EU democratic legitimacy cannot rely on a stronger role of the European Parliament but should rather arise from the empowerment of national parliaments in order ‘to make the EU as a whole more legitimate’.43 Since national parliaments are the main drivers of the Mechanism, it allows the Mechanism to combine the subsidiarity principle with democratic legitimacy. The Mechanism serves as a ‘bridge’ that ensures a connection of EU citizens to the decision-making activity at an EU level and legitimizes European legislation on the basis of the strong ties of national parliaments with their electorate. Keeping an eye on subsidiarity, national parliaments advance democratic legitimacy, that is they do ‘double duty’,44 to put it in the terms of Jean-Victor Louis. Yet, they are good at both disciplines with no conflicting interests involved: ‘they [national parliaments] look at their voters when answering questions of subsidiarity’.45 ‘LAST LINE OF DEFENSE’ The political role of national parliaments in the European law-making process was reinvigorated after the Lisbon Treaty had provided the Mechanism as the facility that allowed chambers to challenge EU proposals against the requirements of subsidiarity through a direct dialogue with EU institutions. However, it is true that national parliaments today are not so much involved in interacting with EU legislative institutions but concentrate instead on holding their ministers to account and influencing their positions. The situation is similar to the pre-Lisbon setting where national parliaments were regarded as ‘government watchdogs’ seeking to establish greater parliamentary scrutiny of the ministers and direct their respective cabinets as far as possible. However, a closer link to their governments as a part of the existing national constitutional arrangements46 provides national parliaments with the power that allows them, in the words of Antonio Estella, to ‘raise a last line of defense’47 in the Council. In accordance with Article of 10 TEU, the Council is formed by ministers who ‘are democratically responsible before their national parliaments’ and thus not controlled by political bodies at the European level. As chambers ‘play their part mainly on the executive side of representation, by providing a democratic base for their governments to act within the Council’,48 the door is open for the Council to be fully involved in discussing subsidiarity concerns expressed by national parliaments in relation to EU legislative proposals. If subsidiarity concerns are not taken into account by the Commission, chambers are likely to enable their cabinets to vote against the proposal being discussed in the Council to make sure their questions with regard to subsidiarity are heard and responded to. In the case study of the first yellow card in 2012, the objections of national parliaments were not the main factor: it was the imminent confrontation within the Council that induced the Commission to withdraw the proposal: ‘the mere political force of their [national governments’] opposition did play a factor’.49 Since the unanimous approval was required in the Council (Article of 352 TFEU), it was clear that the proposal would not get sufficient backing given that national ministers sitting in the Council were explicitly directed by national parliaments to vote down the legislation. In that case, the Council played the role of the ‘transmission belt’50 between chambers and the Commission. It was a meeting of minds between national parliaments and respective government representatives on how to block the EU proposal. However, it is not a cut and dry solution. The Council’s role as the ‘transmission belt’ should not be overestimated or taken too far; it may result in the EU legislative process ‘being used as a political football in a domestic dispute between [national] government and [national] parliament’51 and turn the Mechanism into ‘a damaging—and ultimately illegitimate—tool for national vetoes on the EU law-making process’.52 By introducing the Mechanism, the Lisbon Treaty stressed the political importance of the preventive monitoring of the subsidiarity principle as a ‘political principle on legislative arena’53 or, in other words, a legislative review principle.54 The intention of Protocol 2 was to establish an early warning facility through the procedures of yellow and orange cards but not ‘to transform national parliaments into co-legislatures at the EU level, next to the European Parliament and Council’.55 Subsidiarity concerns brought forward by national legislators therefore need to be addressed in a way that neither alters the institutional balance of the EU legislative framework, that is leaves the final decision on EU draft legislation with the EU legislator, nor upsets the Mechanism as a pure consultative vehicle providing national parliaments with the deliberative power to intervene in the EU legislative process. To have their subsidiarity concerns taken seriously and respected, national parliaments should make an agreement with the relevant EU institution at the earliest possible stage of the EU legislative process when it is realistic to review a challenged proposal without impairing its initiator’s political interests. The importance of this type of early deliberation on subsidiarity reinforces the need for a broader political dialogue between national parliaments and the Commission as the main EU legislative proponent. ‘ONLY THROUGH DIALOGUE’ The Barroso Initiative has been introduced in a bid to ‘offer a dialogue which will allow national parliaments to be…more actively engaged at an early stage in the preparation and formation of European policy’.56 Since 2009, the Barroso Initiative has been used in parallel with the Mechanism, though some believe that the initiative is actually blended with the Mechanism into ‘one hybrid procedure with two purposes’.57 The Commission itself considers the Barroso Initiative and the Mechanism as ‘two sides of the same coin’.58 National parliaments do not send different sets of opinions to the Commission; their opinions consist of two parts which serve simultaneously for the purposes of the Barroso Initiative and the Mechanism. As a rule, national parliaments raise concerns that are not strictly subsidiarity related, thus jumping outside the boundaries of the Mechanism under Article 7 of Protocol 1. In practical terms, the Barroso Initiative is a more utilitarian instrument for voicing the views of national parliaments as compared to the Mechanism. All three yellow cards happened thanks to a system of relationships developed under the Barroso Initiative making it obvious that the informal political dialogue has become a core element of the formal procedures of the Mechanism. In other words, ‘the SCM [Mechanism] is likely to work only through…[political] dialogue’.59 National parliaments are capable of adding substantive political value to the EU legislative process when they succeed in the political dialogue with the Commission, and it is better to start working on it in advance. As Federico Fabbrini states, ‘subsidiarity can best be secured at an early stage of the legislative process’.60 Quite often, the Commission, the Council, and the European Parliament engage in informal ‘trialogues’ and agree on a certain piece of legislation before it has been formally introduced. It means that national parliaments need to monitor subsidiarity at the dawn of the legislative process before the proposal goes public and it gets too late or too costly to challenge it on subsidiarity grounds. This goes beyond the submission of reasoned opinions on draft legislation acts; the role of parliaments is seen not only as the ‘guardians’ of the subsidiarity principle, in line with the established procedures of yellow and orange cards, but also as active contributors to the EU legislative process which would encourage the Commission to shepherd its proposals through a much more collaborative, yet not formally enforced, procedure, the so-called green card. The green card is a non-binding instrument that is currently emerging as a joint endeavor by national parliaments to create a platform for conveying constructive concerns to the Commission early in the game, while still preserving the Commission’s monopoly right of initiative as per the Lisbon Treaty. Under the green card facility, the Commission remains independent in legislative drafting whereas national parliaments step in not as veto-players but as partners that participate together with the Commission in the reshaping of EU draft legislation. As it precedes the Mechanism, the green card instrument allows to avoid some pitfalls of the existing tools. The current procedure of issuing reasoned opinions may be described as ‘half-baked’: it requires the Commission, in a somewhat irrational way, to re-assess a draft legislation despite the fact that it has already been declared as being compliant with the principle of subsidiarity. Under the green card initiative, the Commission can launch a discussion on subsidiarity implications with national parliaments before it formally presents an express subsidiarity justification of the published proposal and gives an assessment of its compliance with the principle of subsidiarity in impact assessments and explanatory memoranda. This could potentially lead to a reduction in a number of subsidiarity concerns raised by national parliaments under the Mechanism and, eventually, to the enhanced potential of subsidiarity as a better regulation principle in the EU. CONCLUSION The Lisbon Treaty has turned national parliaments into ‘European institutions’ by recognizing, for the first time, that the Member States’ chambers ‘contribute actively to the good functioning of the Union’ (Article of 12 TEU). Empowered to perform subsidiarity review, national parliaments have been able to take part in the EU governance, not only as ‘governmental watchdogs’ that scrutinize ‘the conduct of national governments on issues of…their voting on EU measures at the Council’,61 but also as ‘subsidiarity watchdogs’ that delve into the issues of exercising European legislative powers in the areas of non-exclusive EU competence. As George Bermann states, today ‘Europe has looked to the national parliaments for a defense of subsidiarity, to the extent, that is, that the EU institutions themselves may have failed to exercise the requisite self-restraint’.62 However, the instruments put in place for national parliaments have been poorly designed. In the framework of currently prescribed procedures of yellow and orange cards, the Commission is legally bound to provide responses to reasoned opinions of national parliaments but has no obligation to reconsider the proposal on the grounds of subsidiarity concerns. Reasoned opinions of national parliaments do not have direct legal effect and there are no legal instruments to sanction the Commission for disregarding these concerns as only political tools are available as it happened in the case of the first yellow card. As the monopoly right to initiate legislation belongs to the Commission, it always finds itself in a win–win situation ‘without posing too great a risk of jeopardizing its original blueprint’.63 The main problem that should be addressed, therefore, is the limited capability of the Mechanism to create a framework for dealing with subsidiarity concerns caused by the dominance of the Commission in its relations with national parliaments. Another key question is whether national parliaments can still wield influence on final legislative outcomes in the EU through the existing procedures of yellow and orange cards. The foregoing analysis suggests that the short answer is no: acting alone, national parliaments are not capable of forwarding on a decision leading to the amendment or rejection of an action challenged as contravening subsidiarity. However, they can do so in concert with relevant EU institutions, either by making a political agreement with the Commission or, if this is not feasible, by driving the Council to block a challenged proposal. Finally, keeping in mind that the Council’s intervention in subsidiarity-related disputes between the Commission and national parliaments may generate harmful side effects, the chambers should do their best to be involved in a deal-making process at the earliest possible stage and try to shape the Commission’s position under the green card tool. Since this procedure unfolds with the first light of the EU legislative process, the green card is the most advantageous way to implement subsidiarity for national parliaments: it provides them with a possibility ‘to influence the direction in which the EU is developing in setting the EU’s agenda’64 that fits perfectly ‘the understanding of national parliaments as legisprudential actors’.65 Footnotes 1 European Commission ‘Proposal for a Council Regulation on the Exercise of the Right to Take Collective Action Within the Context of the Freedom of Establishment and the Freedom to Provide Services’. COM (2012) 130 final. 2 F Fabbrini and K Granat ‘“Yellow Card, but No Foul”: The Role of the National Parliaments under the Subsidiarity Protocol and the Commission Proposal for an EU Regulation on the Right to Strike’ [2013] CML Rev 50, 115, 143. 3 M Bartl ‘The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit’ [2015] Eur L J 21, 23, 24. 4 GA Moens and J Trone ‘The Principle of Subsidiarity in EU Judicial and Legislative Practice: Panacea or Placebo’ [2015] J Legis 41, 65, 96. 5 I Cooper ‘A “Virtual Third Chamber” for the European Union? National Parliaments after the Treaty of Lisbon’ [2012] West Eur Politics 35, 441, 461. 6 J-V Louis ‘National Parliaments and the Principle of Subsidiarity – Legal Options and Practical Limits’ [2008] Eur Const L Rev 4, 429, 438. 7 Cooper, above n 5 at 441. 8 Ph Norton ‘Parliaments: A Framework for Analysis’ [1990] West Eur Politics 13, 1, 9. 9 Cooper, above n 5 at 448. 10 M-T Paulo ‘National Parliaments in the EU: After Lisboa and beyond Subsidiarity – The (Positive) Side-effects and (Unintended) Achievements of the Treaty provisions’, OPAL Online Paper No 5/2012, 2012, at 13, www.ru.scribd.com/document/203130508/National-Parliaments-in-the-EU-after-Lisbon-treaty-and-Beyond-Subsidiarity/, accessed 30 July 2016. 11 I Cooper ‘The Watchdogs of Subsidiarity: National Parliaments and the Logic of Arguing in the EU’ [2006] JCMS 44, 281, 304. 12 R Corbett ‘The Evolving Roles of the European Parliament and of National Parliaments’ in A Biondi et al. (eds) EU Law after Lisbon (Oxford: Oxford University Press 2012), 240, 258. 13 S Weatherill ‘Finding a Role for the Regions in Checking the EU’s Competence’ in S Weatherill and Ulf Bernitz (eds) The Role of Regions and Sub-National Actors in Europe (Essays in European Law) (Oxford: Hart 2005), 131, 147. 14 T Risse ‘“Let’s Argue!”: Communicative Action in World Politics’ [2000] Int Organ 54, 1, 34. 15 Cooper, above n 11 at 302. 16 L Heleno Terrinha ‘The Legisprudential Role of National Parliaments in the European Union’, Briefing, European Parliament, 2017, No PE 583.133, 3, www.europarl.europa.eu/RegData/etudes/BRIE/2017/583133/IPOL_BRI(2017)583133_EN.pdf, accessed 30 May 2017. 17 Cooper, above n 5 at 460. 18 UK Government ‘Review of the balance of competences between the United Kingdom and the European Union: Subsidiarity and Proportionality’, Report, 2014, 80, www.gov.uk/government/uploads/system/uploads/attachment_data/file/388852/BoCSubAndPro_acc.pdf, accessed 15 December 2016. 19 European Commission ‘Annual Report 2012 on Subsidiarity and Proportionality’. COM (2013) 566 final, 7. 20 European Commission ‘Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office’. COM (2013) 534 final. 21 European Commission ‘Annual Report 2013 on Subsidiarity and Proportionality’. COM (2014) 506 final, 9. 22 European Commission ‘Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Review of the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office with regard to the Principle of Subsidiarity, in Accordance with Protocol No 2’. COM (2013) 851 final, 6. 23 Ibid, 9. 24 European Commission ‘Proposal for a Directive of the European Parliament and of the Council Amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services’. COM (2016) 128 final. 25 European Commission ‘Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Proposal for a Directive Amending the Posting of Workers Directive, with regard to the Principle of Subsidiarity, in Accordance with Protocol No 2’. COM (2016) 505 final, 9. 26 European Commission ‘Posting of Workers: Commission Discusses Concerns of National Parliaments’, press release, 20 July 2016, www.europa.eu/rapid/press-release_IP-16-2546_en.htm/, accessed 30 July 2016. 27 European Commission ‘Annual Report 2016 on Subsidiarity and Proportionality’. COM (2017) 600 final, 14–17. 28 P Popelier ‘Governance and Better Regulation: Dealing with the Legitimacy Paradox’ [2011] Eur Public L 17, 555, 564. 29 European Commission ‘Annual Report 2012 on Subsidiarity and Proportionality’. COM (2013) 566 final, 7. 30 European Commission ‘Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Review of the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office with Regard to the Principle of Subsidiarity, in Accordance with Protocol No. 2’. COM (2013) 851 final, 10. 31 Fabbrini and Granat, above n 2 at 120. 32 I Cooper ‘Is the Early Warning Mechanism a Legal or a Political Procedure? Three Questions and a Typology’ in AJ Cornell and M Goldoni (eds) National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon (Oxford: Hart 2017), 30, 41. 33 P Kiiver The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality (New York: Routledge 2012), 98. See also Cooper, above n 32 at 41. Some authors argue against the extension of the scope of subsidiarity review performed by national parliaments. For example, see N Barber ‘Subsidiarity in the Draft Constitution’ [2005] Europhys Lett 11, 197; G Davies ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time’ [2006] CML Rev 43, 67–68; Fabbrini and Granat, above n 2 at 121; F Fabbrini ‘The Principle of Subsidiarity’, iCourts Working Paper No 66, 2016, forthcoming in T Tridimas and R Schütze (eds) Oxford Principles of EU Law (Oxford: Oxford University Press 2016), 3, 20–21, www.papers.ssrn.com/sol3/papers.cfm?abstract_id=2781845/, accessed 22 March 2017. 34 European Commission ‘Communication from the Commission to the European Council: A Citizens’ Agenda: Delivering Results for Europe’. COM (2006) 211 final, 3. 35 D Jancic ‘The Barroso Initiative: Window Dressing or Democracy Boost?’ [2012] Utrecht L Rev 8, 78, 83. 36 In more details, see annual reports of the Commission on subsidiarity and proportionality. 37 Kiiver, above n 33 at 76. 38 C Fasone ‘Competing Concepts of Subsidiarity in the Early Warning Mechanism’, LUISS Guido Carli School of Government Working Paper No SOG-WP4/2013, 2013, 20, www.papers.ssrn.com/sol3/papers.cfm?abstract_id=2243503/, accessed 30 July 2016. 39 A Dashwood ‘The Relationship between the Member States and the European Union/European Community’ [2004] CML Rev 41, 355, 368. 40 European Union Select Committee ‘The Role of National Parliaments in the European Union: Written Evidence’, 2013, 40, www.publications.parliament.uk/pa/ld201314/ldselect/ldeucom/151/151.pdf/, accessed 13 August 2016. 41 The interaction between national parliaments and the European Parliament takes various forms that must be limited to legislative matters. In the literature, this type of interaction is linked to the concept of the ‘multi-level parliamentary field’. See B Crum and JE Fossum ‘The Multilevel Parliamentary Field: A Framework for Theorizing Representative Democracy in the EU’ [2009] Eur Polit Sci Rev 1, 249, 270. 42 European Union Select Committee, above n 40 at 33. 43 C Grant et al. ‘How to build a modern European Union’, CER Report, 2013, 9, www.cer.org.uk/sites/default/files/rp_119.pdf/, accessed 15 December 2016. 44 Louis, above n 6 at 455. 45 J Peters ‘National Parliaments and Subsidiarity: Think Twice: Articles EC 5; Draft Convention I-9(3); Protocol on the Application of the Principles of Subsidiarity and Proportionality’ [2005] Eur Const L Rev 1, 68, 71. 46 For more details, see A-M Palsson ‘The EU’s Principle of Subsidiarity – An Empty Promise’, Report, 2013, 22, www.eudemocrats.org/eud/uploads/AMP_Subsidiarity_an_empty_promise_2013.pdf/, accessed 13 August 2016. 47 A Estella The EU Principle of Subsidiarity and its Critique (Oxford: Oxford University Press 2002), 53. 48 K. Neunreither ‘Political Representation in the European Union: A Common Whole, Various Wholes or Just a Hole?’ in K. Neunreither and A. Wiener (eds), European Integration after Amsterdam: Institutional Dynamics and Prospects for Democracy (Oxford: Oxford University Press, 2000), 145. 49 D Jancic ‘Representative Democracy across Levels: National parliaments and EU Constitutionalism’ [2012] Croat Ybk Eur L Policy 8, 227, 263. 50 O Pimenova ‘Subsidiarity as a “Regulation Principle” in the EU’ [2016] Theory Pract Legis 4, 381, 397. 51 W Slealth ‘The Role of National Parliaments in European Affairs’ in G Amato et al. (eds) Genèse et Destinée de la Constitution européenne – Genesis and Destiny of the European Constitution (Brussels: Bruylant 2007) at 563. 52 Fabbrini, above n 33 at 23. 53 G Bermann ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’ [1994] Colum L Rev 94, 331, 456. 54 For more details, see Moens and Trone, above n 4 at 102; Cooper, above n 11 at 288; Davies, above n 33 at 84; M Kumm ‘Constitutionalizing Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union’ [2006] Eur L J 12; 503, 533; R Schütze ‘Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism?’ [2009] CLJ 68, 525, 536. 55 Fabbrini, above n 33 at 21. 56 House of Lords, EU Committee, ‘The EU Reform Treaty: Work in Progress’, 19 September 2007, 14, publications.parliament.uk/pa/ld200607/ldselect/ldeucom/180/180.pdf, accessed 22 November 2017. 57 Jancic, above n 35 at 91. 58 European Commission ‘Annual Report 2009 on Relations between the European Commission and National Parliaments’. COM (2010) 291 final, 8. 59 K Korhonen ‘Guardians of Subsidiarity—National Parliaments Strive to Control EU Decision-Making’, FIIA Briefing Paper No. 84, 2011, at 7. 60 Fabbrini, above n 33 at 9. 61 K Auel and T Christiansen ‘After Lisbon: National Parliaments in the European Union’ [2015] West Eur Politics 38, 261, 280. 62 G Bermann ‘The Lisbon Treaty: The Irish “No”.: National Parliaments and Subsidiarity’ [2008] Eur Const L Rev 4, 453, 455. 63 Jancic, above n 35 at 81. 64 C Fasone and D Fromage ‘From Veto Players to Agenda-Setters? National Parliaments and Their “Green Card” to the European Commission’ [2016] Maastricht J Eur Comp L 23, 294, 315. 65 Heleno Terrinha, above n 16 at 4. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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