EN Official Journal of the European Union C 58/33

P8_TA(2016)0103

Annual reports 2012-2013 on subsidiarity and proportionality

European Parliament resolution of 12 April 2016 on the Annual reports 2012-2013 on subsidiarity and proportionality (2014/2252(INI))

(2018/C 058/03)

The European Parliament,

— having regard to the Interinstitutional Agreement on better law-making (1),

— having regard to the practical arrangements agreed on 22 July 2011 between the competent services of the European Parliament and the Council for the implementation of Article 294(4) TFEU in the event of agreements at first reading,

— having regard to its resolution of 4 February 2014 on EU Regulatory Fitness and Subsidiarity and Proportionality — 19th report on Better Lawmaking covering the year 2011 (2),

— having regard to its resolution of 13 September 2012 on the 18th report on Better legislation — Application of the principles of subsidiarity and proportionality (2010) (3),

— having regard to its resolution of 14 September 2011 on better legislation, subsidiarity and proportionality and smart regulation (4),

— having regard to the Commission’s annual report 2012 on subsidiarity and proportionality (COM(2013)0566) and to the Commission’s annual report 2013 on subsidiarity and proportionality (COM(2014)0506),

— having regard to the Council Conclusions on Smart Regulation of 4 December 2014,

— having regard to the Conclusions of the Conference of Speakers of the European Union Parliaments of 21 April 2015,

— having regard to the Bi-annual reports of COSAC on Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny of 27 September 2012, 17 May 2013, 4 October 2013, 19 June 2014, 14 November 2014,

— having regard to the final report of 14 October 2014 of the High Level Group of Independent Stakeholders on Administrative Burdens, entitled ‘Cutting Red Tape in Europe — Legacy and Outlook’ (5),

— having regard to Rule 52 and Rule 132 of its Rules of Procedure,

— having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on International Trade, the Committee on Budgetary Control, the Committee on Employment and Social Affairs and the Committee on Constitutional Affairs (A8-0301/2015),

A. whereas in 2012, the Commission received reasoned opinions addressing 83 legislative proposals; whereas the total number of submissions received in 2012 was 292, including those submissions which did not qualify as reasoned opinions;

B. whereas in 2013, the Commission received reasoned opinions addressing 99 legislative proposals; whereas the total number of submissions received in 2013 was 313, including those submissions which did not qualify as reasoned opinions;

C. whereas in 2012, national parliaments issued 12 reasoned opinions on the Monti II proposal (6), representing 19 votes (18 being the threshold), and thus for the first time triggered a so-called yellow card, which requires the institution that has presented the proposal to review it and to justify its decision as regards whether to withdraw, to amend or to maintain the proposal;

D. whereas the Commission withdrew the Monti II proposal but stated that it considered the proposal to be in conformity with the principle of subsidiarity and that the proposal was withdrawn in view of insufficient support for it in the European Parliament and the Council of Ministers (7);

E. whereas in 2013, national parliaments issued 13 reasoned opinions on the proposal for the establishment of a European Public Prosecutor’s Office (8), representing 18 votes, thereby triggering the second yellow card procedure;

F. whereas the Commission concluded that its proposal complied with the principle of subsidiarity and that a withdrawal or an amendment of the proposal was not required; whereas the Commission declared that in the legislative process it would take due account of the reasoned opinions (9);

G. whereas several national parliaments expressed concern regarding the Commission’s approach, considering the justifications and arguments presented by the Commission insufficient; whereas the Legal Affairs Committee and the Civil Liberties, Justice and Home Affairs Committee of the European Parliament held debates on this topic;

H. whereas in the subsequent negotiations with the Council on the European Public Prosecutor the scope and working methodologies have been narrowed as compared with the initial proposal upon which the reasoned opinions were issued;

I. whereas given its right of initiative, the Commission has a responsibility to ensure that the correct choices about whether and how to propose action at EU level are made at an early stage of policy development;

J. whereas the Commission is undertaking a revision of the guidelines applying to the impact assessment process, which includes consideration of subsidiarity and proportionality;

K. whereas the Parliament has established its own Impact Assessment Unit, which produced 50 initial appraisals and two detailed appraisals of Commission impact assessments in 2013;

L. whereas national parliaments have observed that the inclusion of significant and numerous delegated powers makes it difficult to effectively evaluate whether final rules would comply with the principle of subsidiarity;

M. whereas the subsidiarity and proportionality check as well as an impact assessment are done only at the beginning of the legislative process;

1. Observes that the principles of subsidiarity and proportionality are fundamental guiding principles for the European Union;

2. Emphasises that the use of the EU’s competences should be guided by the principles of subsidiarity and proportionality, as stated in Article 5 of the Treaty on European Union; welcomes the fact that in 2012 and 2013 compliance with these two principles was carefully scrutinised by the EU institutions and by national parliaments;

3. Welcomes the closer participation and stronger involvement of national parliaments in the European legislative process in recent years, which has resulted in an increased awareness of the principles on which the EU is founded, including the principles of subsidiarity and proportionality in the interinstitutional context; notes, however, that further work still needs to be done in this context; suggests as a first step that the Commission engage in a yearly debate with each of the national parliaments in order to strengthen the dialogue between the Commission and the national parliaments;

4. Believes furthermore that the principles of subsidiarity and proportionality represent the starting point for policy formulation; stresses therefore the importance of assessing at the beginning of the legislative process whether policy objectives can be achieved better at European level than by means of national or regional initiatives;

5. Notes the importance of parliaments and of their territorial impact and closeness to the citizens, and calls, where appropriate, for their greater involvement in the early warning system;

6. Notes, however, that a majority of opinions by national parliaments are submitted by only a few national chambers; encourages the other chambers to become more involved in the European debate;

7. Stresses the need for the European institutions to respect the principles of subsidiarity and proportionality embodied in Article 5 of the Treaty on European Union and Protocol No 2 to the Treaty on the Functioning of the European Union, which are of a general nature and binding on the institutions exercising the powers of the Union, except for those areas which fall within the exclusive remit of the Union, where the subsidiarity principle does not apply;

8. Considers that the mechanism for verification of the subsidiarity principle is of major importance for collaboration between European and national institutions;

9. Notes that the annual reports prepared by the Commission are somewhat perfunctory, and calls on the Commission to consider preparing more detailed reports regarding the way subsidiarity and proportionality are observed in EU policy-making;

10. Notes the methodology of the Commission in the 2012 and 2013 Annual reports, within which statistics are used to classify reasoned opinions submitted by national parliaments on a package of proposals as only one reasoned opinion, rather than a reasoned opinion on each of the individual proposals;

11. Notes that, when taken as a whole, the proportion of reasoned opinions has increased significantly as a percentage of total submissions when compared to 2010 and 2011 and that in 2012 reasoned opinions represented 25 % of all submissions, while in 2013 they accounted for 30 % of submissions from national parliaments under the Protocol 2 process; notes in this regard the consultation of national parliaments in the legislative process;

12. Points out that 2012 saw the first use of the so-called yellow card procedure by national parliaments regarding the principle of subsidiarity in response to the Commission’s proposal for a regulation on the exercise of the right to take collective action within the context of freedom of establishment and the freedom to provide services (Monti II); notes that although the Commission concluded that the principle of subsidiarity had not been breached it did withdraw the proposal due to lack of political support; remarks that a second so-called yellow card was triggered in 2013 on the Commission’s proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office (EPPO); notes that Commission concluded that the proposal complied with the principle of subsidiarity and decided to maintain it;

13. Notes that reasoned opinions issued by national parliaments point out the existence of various interpretations of the principles of subsidiarity and proportionality; recalls in this context that the subsidiarity principle as formulated in the Treaties allows the Union to act in areas which do not fall within its exclusive competence only ‘if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of scale or effects of the proposed action, be better achieved at Union level’; recalls equally that ‘under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objective of the Treaties’; encourages national parliaments to be faithful to the letter of the TEU when assessing compliance with the principles of subsidiarity and proportionality; strongly recommends that national parliaments and European institutions engage in exchanges of views and practices of scrutinising subsidiarity and proportionality;

14. Notes that the reasoned opinions submitted by national parliaments vary considerably with regard to the types of arguments raised and their form; regrets the absence of common patterns which makes it more difficult to evaluate on what basis national parliaments intervene;

15. Recalls concerns raised in previous Parliament reports regarding instances where subsidiarity had not been adequately addressed in impact assessments (IAs) prepared by the Commission; further recalls that the Annual Reports of the Impact Assessment Board (IAB) have raised this issue; notes that the IAB considered more than 30 % of IAs reviewed by them in 2012 and 2013 to have included an unsatisfactory analysis of the principle of subsidiarity; expresses concern that this number rose to 50 % in 2014, and urges the Commission in its revision of the guidelines for IAs to address this issue and reverse this trend;

16. Notes the importance of impact assessments as decision-making aids in the legislative process and stresses the need, in this connection, to give due consideration to issues relating to subsidiarity and proportionality;

17. Stresses that thorough impact assessments which thoroughly evaluate subsidiarity compliance are essential to improve the trust of citizens, who often consider the subsidiarity principle a key aspect of the democratic process; highlights, therefore, that enhanced subsidiarity checks could be considered an important tool for reducing the so-called ‘democratic deficit’;

18. Reiterates the call made in its abovementioned resolution of 14 September 2011 for the use of national impact assessments as a complement to those carried out by the Commission — the reform of which is under discussion — in support of proposed legislation; believes that Parliament’s recently created impact assessment units will offer a positive complement to the Commission’s work;

19. Expresses disappointment at the response of the Commission to national parliaments in instances where yellow cards have been issued; believes that it is necessary for the Commission to respond comprehensively to any concerns raised by national parliaments, and on an individual basis as part of a dialogue in addition to any published opinion; considers that it is also necessary for the Commission to appear before the relevant committee or committees of the Parliament to explain its position in detail;

20. Highlights that the yellow card procedure, which is an instrument for influencing EU decision-making, could effectively be strengthened by an earlier exchange of information on positions of national parliaments and therefore encourages national parliaments to exchange views on the scope and evaluation methods applied in order to assess conformity with the subsidiarity and proportionality principles;

21. Believes that political dialogue is increasingly important in ensuring that subsidiarity is respected; considers that political dialogue should be improved not only in instances of a yellow or orange card, but as a general rule; welcomes in this regard the Juncker Commission’s undertaking to appear before more national parliaments, and calls for the Parliament to consider undertaking similar initiatives; believes that rapporteurs could be encouraged to engage more often with national parliaments, particularly as video-conferencing and other methods of online engagement are made easier and more effective;

22. Stresses that the European institutions and the national parliaments should continue to work to promote a ‘subsidiarity culture’ across the EU; recommends two particular initiatives which will aid better consideration of subsidiarity in the legislative process at present, namely facilitating greater inclusion of positions, perspectives or other suggestions made by national parliaments in the political dialogue, in particular in the course of preparatory work such as Green Papers or White Papers produced by the Commission, and considering an extension of the time period for consultation of national parliaments under the subsidiarity check if national parliaments request this on grounds of time constraints on the basis of justified objective reasons, such as natural disasters and recess periods, to be agreed between national parliaments and the Commission; considers that this could be achieved through a political undertaking agreed by the institutions and the national parliaments in the first instance, without giving rise to a delay in the adoption of relevant legislation;

23. If the Member States agree to extend the period given to national parliaments to issue a reasoned opinion under Article 6 of the Protocol on the application of the principles of subsidiarity and proportionality, it should be included in a next Treaty revision; such an extension period could then also be determined in secondary legislation;

24. Considers it important that the yellow card procedure be easily implementable for parliaments, while reaffirming the principle of subsidiarity in accordance with the Treaties;

25. Notes that several national parliaments in COSAC have expressed their interest in proposing the introduction of a green card as an instrument for improving political dialogue, which would afford national parliaments, having first secured the support of Parliament, the opportunity to make constructive proposals for the Commission’s consideration and with due regard for the Commission’s right of initiative;

26. Notes that legislative proposals may change dramatically in the lead-up to adoption by the institutions; recalls that a check on compliance with the principle of subsidiarity is only undertaken at the outset and not at the conclusion of the legislative process; further recalls that impact assessments more generally are only prepared for the initial rather than the final stages of the legislative process; stresses the need for a mid-term evaluation after the opening of the adoption procedure, and at the end of the legislative process, making it possible in certain cases to issue a warning to Member States failing to respect the principle of subsidiarity;

27. Calls therefore for a further subsidiarity check and full impact assessment to be undertaken at the conclusion of the legislative negotiations and in advance of the adoption of a final text, in order that compliance with subsidiarity can be guaranteed and that assessments including proportionality can be made; believes that such a ‘cooling off’ period would help policy-makers in assessing whether legislation complies with the principles of the Union, and would increase transparency about the results of periods of often rather intense negotiation;

28. Takes note of the new Commission’s policy goals relating to initiatives and proposals for EU legislation, namely: minimum cost; benefits for citizens, businesses and workers; and avoidance of unnecessary regulatory burdens;

29. Considers that programmes under the multiannual financial framework should assess and prove compliance with the subsidiarity principle in terms of demonstrable added value within the beneficiary Member States;

30. Asks the Commission, in compliance with the proportionality and subsidiarity principles, to simplify the procedure for applying for EU funds, with a view to making the application procedure more efficient and results-oriented;

31. Underlines its commitment to ensuring compliance with principles of subsidiarity and proportionality through assessments of its own legislative own-initiative reports, ex-ante appraisals of Commission impact assessments and the constant assessment of the potential EU added value and the ‘cost of non-Europe’;

32. Notes namely the recent discussions on investor-state dispute settlement (ISDS) and the Commission’s proposals to replace the current model; recalls that Article 3 of the Treaty on the Functioning of the European Union designates the common commercial policy as an integral area of exclusive Union competence which shall be based on uniform principles; notes, therefore, that the principle of subsidiarity does not apply to the common commercial policy;

33. Calls on the Member States to unblock the UNCITRAL Convention on Transparency in Treaty-Based Investor-State Arbitration in order for the Commission to sign the convention on behalf of the whole Union; deplores the current situation in which some Member States are party to the convention while others are not; considers that this example underlines the need for improved clarity on all sides regarding the scope of the Union’s exclusive competence on foreign direct investment; recalls that different policies implemented by the Member States as regards investment protection have led to the current situation in which the Member States are party to some 1 400 bilateral investment treaties with, at times, different provisions, which could lead to varying treatment of EU investors abroad, depending on the origin of the investment in question;

34. With respect to EU financial assistance to other countries, specifically macro-financial assistance, calls for more in-depth ex-ante and ex-post impact assessments regarding the proportionality of the proposed measures in order for the assistance to be efficient and genuinely helpful to our partners in need; insists on the necessity of establishing conditionality for disbursement of the assistance and proper control of the use of the funds, including measures in relation to the prevention of, and fight against, fraud and corruption, and detailed scrutiny by Parliament; calls for a strong integration of the EU’s external instruments, combining trade, development and foreign and security policy; stresses that the Member States have to show more commitment in this regard;

35. Points out the utmost importance of proper consultation, dialogue and involvement of citizens, businesses (namely SMEs) and civil society in the EU decision-making process for trade policy;

36. Instructs its President to forward this resolution to the Council and the Commission.

(1) OJ C 321, 31.12.2003, p. 1.

(2) Texts adopted, P7_TA(2014)0061.

(3) OJ C 353 E, 3.12.2013, p. 117.

(4) OJ C 51 E, 22.2.2013, p. 87.

(5) http://ec.europa.eu/smart-regulation/refit/admin_burden/docs/08-10web_ce-brocuttingredtape_en.pdf

(6) 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)0130).

(7) Letter of 12 September 2012 by Vice-President Šefčovič to National Parliaments.

(8) Commission proposal for the establishment of the European Public Prosecutor’s Office (EPPO) (COM(2013)0534).

(9) Communication of 27 November 2013 to the European parliament, the Council and 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)0851).