EN Official Journal of the European Union C 115/35

Opinion of the Committee of the Regions on Guidelines for the application and monitoring of the subsidiarity and proportionality principles

(2006/C 115/08)

THE COMMITTEE OF THE REGIONS,

HAVING REGARD TO the decision of its Bureau of 20 June 2004 to instruct its Commission for Constitutional Affairs and European Governance, under Article 265(5) of the EC Treaty, to draw up an own-initiative opinion on the application and monitoring of the subsidiarity and proportionality principles;

HAVING REGARD TO the Treaty establishing a Constitution for Europe signed by the heads of state or government on 29 October 2004, and in particular to the provisions of the Protocol on the application of the principles of subsidiarity and proportionality (hereinafter referred to as the subsidiarity protocol) (CIG 87/04 rev. 1, CIG 87/04 Add 1 rev. 1, CIG 87/04 Add 2 rev. 1);

HAVING REGARD TO the Commission Communication on the Implementation of the Framework Action Updating and simplifying the Community acquis (COM (2004) 432 final);

HAVING REGARD TO its opinion on the Revision of the Treaty on European Union (CdR 136/1995) and its additional opinion on The application of the principle of subsidiarity in the European Union (CdR 136/1995 appendix);

HAVING REGARD TO its resolution on the Outcome of the Intergovernmental Conference (CdR 305/1997 fin);

HAVING REGARD TO its opinion entitled Developing a genuine culture of subsidiarity: an appeal by the Committee of the Regions (CdR 302/1998 fin (1));

HAVING REGARD TO its opinion Better lawmaking 1998 — a shared responsibility (CdR 50/1999 fin (2));

HAVING REGARD TO its opinion on the Implementation of EU law by the regions and local authorities (CdR 51/1999 fin (3));

HAVING REGARD TO its opinion on the 2000 Intergovernmental Conference (CdR 53/1999 fin (4));

HAVING REGARD TO its resolution on The next Intergovernmental Conference (CdR 54/1999 (5));

HAVING REGARD TO its opinion on the Commission report to the European Council on Better lawmaking 1999 (CdR 18/2000 fin (6));

HAVING REGARD TO its opinion on the Commission report on Better lawmaking 2002 and the Commission Communication on Updating and simplifying the Community acquis (CdR 62/2003 fin (7));

HAVING REGARD TO its opinion on Better lawmaking 2004 and Better Regulation for Growth and Jobs in the European Union (CdR 121/2005 fin);

HAVING REGARD TO its opinion on the Treaty establishing a Constitution for Europe (CdR 354/2003 fin);

HAVING REGARD TO its opinion on The period of reflection: the structure, subject and context for an assessment of the debate on the European Union, (CdR 250/2005 fin);

HAVING REGARD TO the draft opinion (CdR 220/2004 rev. 3) adopted by the Commission for Constitutional Affairs and European Governance on 4 October 2005 (rapporteur: Mr Peter Straub, DE-EPP, president of the Baden-Württemberg Landtag);

1) WHEREAS its proposals have gained gradual acceptance in recent years as the subsidiarity principle has become bound into the Treaties;

2) WHEREAS conclusions were drawn at the first conference on subsidiarity held in Berlin on 27 May 2004 on its initiative;

3) WHEREAS the subsidiarity principle is extended to regional and local authorities (Article I-11), thus giving substance to the principle of local and regional self-government enshrined in the Constitution (Article I-5(1));

4) WHEREAS the European Commission is required to undertake broad consultation of regional and local authorities in the pre-legislative phase (Article 2 of the subsidiarity protocol);

5) WHEREAS the Committee, as the institutional voice of the EU's regions and cities, is entitled to protect its prerogatives before the Court of Justice of the European Union (Article III-365(3));

6) WHEREAS the Committee may also lodge an appeal to ensure compliance with the subsidiarity principle (Article III-365 and Article 8 of the subsidiarity protocol);

7) WHEREAS the Committee is called upon, along with the other institutions and national parliaments, to consider the European Commission's annual report on the application of Article I-11 of the constitution (subsidiarity and proportionality) (Article 9 of the subsidiarity protocol);

8) WHEREAS an early warning system is created for political monitoring of compliance with the subsidiarity principle which for the first time also gives national and regional parliaments a role in the legislative process of the European Union (Article 6 of the Subsidiarity Protocol);

unanimously adopted the following opinion at its 62nd plenary session, held on 16 and 17 November 2005 (meeting of 16 November):

Views and recommendations of the Committee of the Regions

1. Preliminary remark concerning the status of the ratification process for the Constitutional Treaty

The Committee of the Regions

1.1 notes that the majority of the Member States have ratified the Constitutional Treaty, whilst the populations of two Member States have rejected the Constitutional Treaty by way of referendum;

1.2 welcomes the announcement by the European Council of 16-17 June 2005 of a period of reflection in the ratification process and considers it necessary to use this period to consider how the Union might bring its policies more into line with public expectations and improve communications with the public; and emphasises that representatives of regional and local authorities in particular, who are especially close to the citizens, can play a decisive role in this, not least by formulating proposals and initiatives;

1.3 has emphasised the need for the local and regional level to be actively involved in the ‘period of reflection’ and has made recommendations on the structure of the debate and on subjects for discussion and assessment (CdR 250/2005).

1.4 emphasises that basing European policy on the principles of subsidiarity and proportionality and developing a culture of subsidiarity could make a decisive contribution to strengthening public confidence in European cooperation and overcoming the scepticism expressed in the referendums that produced a no vote;

1.5 therefore appeals to the EU's institutions and bodies to implement immediately, as far as is legally possible, the principles of subsidiarity and proportionality and the monitoring thereof provided for in the Constitutional Treaty, regardless of whether that Treaty has been ratified;

1.6 considers it indispensable that, in accordance with the new Protocol on the application of the principles of subsidiarity and proportionality, more account be taken of the European Union's regional and local dimension through extensive consultations prior to the adoption of all legislative acts and that, for every European framework law, a ‘subsidiarity statement’ must be drawn up in which the European Commission is to assess the regulatory and financial consequences of the proposed framework law for regional and local authorities (CdR 121/2005, point 2.1.2).

2. Political evaluation of subsidiarity and proportionality in the Constitutional Treaty

The Committee of the Regions

2.1 is delighted that the various reforms of the Treaties since 1996 and the Constitutional Treaty signed on 29 October 2004 have between them met almost all the CoR's demands made over the last ten years regarding the subsidiarity principle, in particular through the work of the Constitutional Convention. This demonstrates its ability to assert itself and influence the European legislative process;

2.2 welcomes the new definition of the subsidiarity principle and its involvement in ex-post monitoring of compliance with that principle; it also recognises that, together with other institutions and national parliaments, it will receive the Commission's annual report on the application of Article I-11 of the Constitution (subsidiarity and proportionality — Article 9) — (CdR 354/2003 point 1.12);

2.3 stresses that the changes under the Constitutional Treaty have given it an important role to play in monitoring the application of subsidiarity, thus strengthening its institutional role within the EU;

2.4 will make every effort to prepare itself to fulfil this new role and to work together even more closely than in the past with the relevant institutions and the regional and local authorities it represents;

2.5 stresses that the resolute application of the reformed subsidiarity principle, i.e. deeper involvement of regional and local players, may be a key factor in defining the European institutions' policies and actions in more concrete terms, given that regions and local authorities are particularly close to the grassroots and can therefore forward to the European institutions requests and suggestions on the tangible economic and social development needs voiced by local and regional authorities. Moreover, local and regional authorities can help in promoting the idea of Europe among citizens;

2.6 welcomes the offer that Commission President Barroso made during the plenary session of 24 February 2005 to strengthen the political partnership with the European Commission and to further develop the cooperation agreement signed in 2001; and recalls its expectation of real dialogue with the Commission, which should be extended to key themes (CdR 354/2003 point 1.18);

2.7 welcomes the fact that, for the first time, as the Committee has repeatedly demanded (8), the Treaty establishing a Constitution for Europe is introducing clear categories of competences (exclusive, shared, and complementary, Article I-12) and clearer divisions of competences between the Union, the Member States and their regional and local authorities (Article I-13 to I-18);

2.8 recalls in this context that the main aim of the subsidiarity principle, as a dynamic political principle guiding action where competence is shared between the institutions and bodies involved in the public life of the Union, is to ensure that decisions in Europe are taken at the level that achieves the best effect and is as close to the citizen as possible;

2.9 notes that subsidiarity is a dynamic principle, which in some areas can lead to ‘more Europe’, and in others, to less (CdR 302/1998, point 1.1.5);

2.10 emphasises that the European Union needs both harmonisation and the preservation of the diversity that has evolved, and advocates a Europe in which the diversity and identities of its peoples can develop their potential to promote fruitful competition without damaging the solidarity and cohesion within the Union (9);

2.11 therefore points out to the European Commission that the application of the subsidiarity principle particularly means proactively checking whether a European legislative initiative is necessary in the first place;

2.12 stresses that under point 1 of the Protocol on the application of the principles of subsidiarity and proportionality attached to the Constitutional Treaty, all European institutions are required to abide by these principles, and that they are to apply throughout the legislative process, i.e. also during deliberations in the European Parliament and the Council of Ministers; it is therefore very important that, in view of its new responsibilities, the Committee should receive or develop the means to monitor compliance with the subsidiarity principle throughout the entire legislative process and, where appropriate, to bring actions before the ECJ;

2.13 is pleased to point out that the inclusion of the local level in the subsidiarity principle has made clear that compliance with that principle is not simply a matter of respecting the legislative powers of the national and regional levels, and that instead the European Union must also ensure that the prerogatives of cities, municipalities and regions are safeguarded within the context of local and regional self-government;

2.14 regrets, however, that the criteria contained in the subsidiarity protocol annexed to the Amsterdam Treaty for checking the compatibility of a European Union legislative proposal with the subsidiarity principle were not reproduced in full in the new subsidiarity protocol, and encourages the European Commission, when applying the subsidiarity principle in future, to highlight whether: — the area in question contains trans-national aspects that cannot adequately be addressed by measures taken by Member States or their regional and local authorities; — measures taken by Member States or their regional and local authorities alone, or the absence of Community measures, would violate the requirements of the Treaty or would in some other way significantly harm the interests of the Member States or their regional and local authorities; — measures at Community level would, due to their scope or their effect, have significant advantages over measures taken by Member States or their regional and local authorities;

2.15 believes that, when monitoring subsidiarity, account should be taken of the extent to which economies of scale and added value can be achieved through cross-border and trans-national effects when EU measures are taken;

2.16 stresses that where European legislation is necessary under the subsidiarity principle, it should be drafted in such a way as to retain the greatest possible scope for national, regional and local decision-making, and that the volume of European legislation must be limited, even more than has hitherto been the case, to what is strictly necessary to achieve the Treaty objectives (proportionality principle); in particular, if jobs are to be protected and created, citizens and businesses must not be saddled with unnecessary red tape; therefore also welcomes the European Commission's measures to update and simplify the Community acquis, and calls for these to be stepped up;

2.17 regrets therefore that the provisions on the proportionality principle are less comprehensive and clear than those on subsidiarity, and all the more so since the constitution recognises the autonomy of regional and local self-government (Article I-5 and Part II preamble) and the local and regional level is responsible for implementing more than 70 % of EU legislative acts;

2.18 refers in this context to the existing ECJ case law (10) that, when assessing the compatibility of a legislative proposal with the subsidiarity principle, aspects of proportionality must also be taken into consideration and that these two principles cannot entirely be separated from one another;

2.19 makes it clear with respect to its right to bring actions on subsidiarity issues that its main aim is to secure an effective contribution from the local and regional level to ensure better application of the subsidiarity principle from the drafting stage of legislative proposals by the European Commission to their adoption by the European Parliament and the Council of Ministers;

2.20 therefore calls on the European Commission, the European Parliament, the Council of Ministers, and national and regional parliaments to create a real subsidiarity culture in the Union and to work together towards fixing that principle firmly in the minds of political decision-makers at European, national, regional and local level, and to conduct ongoing dialogue about specific measures for applying the principles of subsidiarity and proportionality;

2.21 recalls the close correlation between the application of the subsidiarity principle and the principles of good governance in Europe. These principles strengthen the democratic legitimacy and transparency of the Union, and the Constitutional Treaty provides for a welcome extension of pre-legislative consultation between the European Commission and regional and local authorities (Article 2 of the subsidiarity protocol), which should result in a genuine exchange of opinions;

2.22 invites national parliaments, which, like the Committee itself, have been given a right to bring actions before the Court of Justice of the European Union, to enter into a continuous dialogue with it in order to develop joint strategies for the efficient application of the subsidiarity protocol and to effectively and transparently pursue at national level the consultation of representatives of the local and regional level, in particular regional parliaments with legislative powers, provided for in the Constitutional Treaty;

2.23 invites regional parliaments to continue to liaise with it and to take internal measures that facilitate rapid decision-making and effective exchange of information on subsidiarity matters within the framework of the early-warning system.

3. The Committee of the Regions' role in monitoring the principles of subsidiarity and proportionality from the pre-legislative phase to the phase where actions are brought before the Court of Justice of the European Union

a) The pre-legislative phase

The Committee of the Regions

3.1 stresses that the planning phase of a legislative act offers it, along with local and regional authorities, the greatest number of opportunities to effectively bring the local and regional dimension to bear; and points out that involving it at an early stage and taking its views into account could obviate the need for cases to be brought before the Court of Justice of the European Union for infringements of the subsidiarity principle;

3.2 welcomes the fact that the European Commission, before publishing legislative proposals, must first examine their financial and administrative impact, and expects the impact on local and regional authorities to be included in the subsidiarity sheet, as it often falls to this level of government and administration to regulate and implement new EU initiatives; it requests the European Parliament to similarly consider the impact of its changes to legislative proposals (CdR 354/2003 point 1.21);

3.3 emphasises that the Commission should make full use of the framework legislation allowing national, regional and local authorities to select the most appropriate form and methods for achieving the desired results;

3.4 proposes that, even during the consultations provided for in Article 2 of the subsidiarity protocol, the Commission produce subsidiarity sheets with reasoned statements on the principles of subsidiarity and proportionality and on the impact assessment;

3.5 expects the European Commission regularly to involve it in the pre-legislative consultation process under Article 2 of the subsidiarity protocol;

3.6 expects to be given the opportunity to make its contribution in connection with the drafting of the European Commission's annual report to the European Council on the application of the subsidiarity principle; in particular, its opinion on the European Commission's annual report on the application of Article I-11 of the Constitution (subsidiarity and proportionality) should be enclosed with the Commission's report;

3.7 proposes, for the purpose of developing a culture of subsidiarity in the European Union, that an annual subsidiarity conference be held involving the European Commission, the Council of Ministers, the European Parliament, the Court of Justice of the European Union, national parliaments and regional assemblies, at which progress, hindrances and developments in the application of the subsidiarity and proportionality principles are to be discussed and assessed;

3.8 firmly believes that its opportunities to be involved in the pre-legislative process must be extended further; and therefore invites the European Commission, when carrying out the revision of the cooperation agreement due in 2005, to pay particular attention to issues of cooperation in relation to the application of the subsidiarity principle and to its new role.

b) Legislative procedure

The Committee of the Regions

3.9 stresses that, on the basis of its existing consultative role, it has the right to examine the compatibility of an EU legislative proposal with the principles of subsidiarity and proportionality and to make its views known to the European institutions and national parliaments;

3.10 believes that in its assessment of the subsidiarity principle the CoR should not confine itself to the ten areas of mandatory consultation, but should be able to ‘make its own destiny’;

3.11 is aware that it will be politically strengthened by the right to bring proceedings in defence of its rights;

3.12 points out that, unlike national parliaments, it is not bound by a deadline for lodging complaints about non-compliance with the principles of subsidiarity and proportionality under the early warning system;

3.13 therefore decides, in the light of the deadlines that apply within the early warning system and to complaints by the CoR, to vest the Bureau with the power to check that legislation proposed by the Commission in areas where consultation of the CoR is mandatory is compatible with the principles of subsidiarity and proportionality, and with the task of making its views known to the European institutions and national parliaments; the practical arrangements within the Bureau will have to be worked out as part of a review of the CoR's Rules of Procedure;

3.14 stresses that guaranteeing the substantive content of opinions on all legislative proposals remains the responsibility of the commissions and their rapporteurs throughout the whole legislative process;

3.15 points out, however, the need to follow up its assessment of the application procedures for the principles of subsidiarity and proportionality throughout the legislative process; in particular, rapporteurs will need to pay attention to whether discussions in the Parliament and the Council of Ministers have led to changes in the text that make the proposal incompatible with the subsidiarity or proportionality principle and inform the Committee (Bureau) if necessary;

3.16 therefore invites the Council of Ministers and the European Parliament, given their future obligation under the Constitutional Treaty (Article III-388) to consult it in the areas of mandatory consultation and in the light of its new responsibilities for monitoring subsidiarity, to consider embarking on negotiations about a cooperation agreement; in view of its responsibility for subsidiarity, this agreement should in particular contain the arrangements for consulting the Committee and for the information flow between it and the Parliament or the Council of Ministers within the co-decision procedure;

3.17 intends, even before the Constitutional Treaty for Europe enters into force, to use, within the current legal framework, the subsidiarity monitoring instruments in a test phase, in particular by setting up an electronic network with regional and local authorities and their associations.

c) Appeals to the European Court of Justice

The Committee of the Regions

3.18 notes that the European Court of Justice has up until now been very restrictive in its handling of the monitoring of compliance with the subsidiarity principle. Essentially, the Court of Justice mainly checks whether the institutions have met their requirement to make a statement on compliance with the subsidiarity principle. However, the Court of Justice does not look into matters of substantive law, except in cases where there has been a clear violation. As the principle of subsidiarity and the monitoring thereof have increased considerably in importance as a result of the Constitutional Treaty, it remains to be seen whether the ECJ will step up its checks;

3.19 notes that under Article III-365, it must lodge an appeal on the grounds of violation of the subsidiarity principle no later than two months after the entry into force of a legislative act;

3.20 welcomes the fact that its right to bring actions to protect its prerogatives and to ensure that legislative acts about which it must be consulted comply with the subsidiarity principle give it new judicial legitimacy;

3.21 considers that it can bring a case before the Court of Justice of the European Union for violation of the subsidiarity principle even when it has not adopted a critical opinion on the application of the subsidiarity principle but has limited itself to an opinion under its mandatory or optional consultative role;

3.22 is determined to use the right to bring actions before the European Court of Justice as a last resort and only when all other means of exerting influence have been exhausted;

3.23 decides that, as a rule, the Bureau shall take decisions on lodging appeals, on the grounds of violations of the subsidiarity principle, with the Court of Justice of the European Union. If it is possible to do so by the relevant deadline, the plenary assembly shall take the decision on a proposal from the Bureau. However, in view of the significance of bringing such an action for the Committee, the plenary assembly at all times reserves the right to review the decision of the Bureau. The practical arrangements remain to be worked out as part of a review of the CoR's Rules of Procedure;

3.24 notes that it will carefully consider any requests stemming from its networking with regional and local authorities and their associations to bring actions about EU legislative acts under internal procedures to be established.

Brussels, 16 November 2005. The President of the Committee of the Regions Peter STRAUB

(1) OJ C 198 of 14.7.1999, p. 73.

(2) OJ C 374 of 23.12.99, p. 11.

(3) OJ L 292, 15.11.1996, p. 2. C 374 of 23.12.99, p. 25.

(4) OJ C 156 of 6.6.2000, p. 6.

(5) OJ C 293 of 13.10.1999, p. 74.

(6) OJ C 226 of 8.8.2000, p. 60.

(7) OJ C 73 of 23.03.2004, p. 38.

(8) Opinion on a better division and definition of competence in the European Union (CdR 119/2002 final).

(9) CdR 308/1998.

(10) (C 491/01).