Opinion of the Committee of the Regions on Guidelines for the application and monitoring of the subsidiarity and proportionality principles
Date: 2005-11-16
Institutions: Committee on Constitutional Affairs, European Committee of the Regions
Subjects: Community acquis, European Committee of the Regions, European Constitution, appeal to the Court (EU), drafting of EU law, interinstitutional relations (EU), powers of the institutions (EU), principle of proportionality, principle of subsidiarity, simplification of legislation

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2.9
urges the regional parliaments with legislative powers
to consider setting up parliamentary committees with responsi-
bility for monitoring application of the subsidiarity principle.
As a result, these would then be privileged negotiating partners
in the above-mentioned networks;

2.10
argues that in Member States where powers are shared
level a binding internal
between the national and regional
agreement should be concluded on the procedure envisaged by
the early warning system for monitoring compliance with the
subsidiarity principle, in order to ensure the clarity and trans-
parency of this procedure, and proposes to draw up a list of
these procedural agreements adopted in the Member States;

2.11
recommends that the subsidiarity monitoring process
should be accompanied by an internal reform process within
Member States, in line with existing constitutional structures,

to consolidate the involvement of regional parliaments with
legislative powers in the mechanisms envisaged by the protocol
on the application and monitoring of
the subsidiarity and
proportionality principles;

2.12
recommends that regional parliaments with legislative
powers should use them in the European decision-making
process, on the basis not only of their institutional capacity but
also that of their fiscal capacity;

2.13
finally, strongly urges the European Union to under-
take to give teeth to the regional debate in Europe, which,
whatever happens, has to take the form of collaboration
between the European Parliament, the national parliaments, the
local and regional authorities and especially the regional parlia-
ments with legislative powers; this collaboration will need to
show clearly that it offers added value for European democracy,
and the conditions under which this collaboration takes place
must be the subject of close consultations.

Brussels 16 November 2005.

The President

of the Committee of the Regions

Peter STRAUB

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 Consti-
tutional 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);

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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 Consti-
tutional Affairs and European Governance on 4 October 2005 (rapporteur: Mr Peter Straub, DE-EPP, presi-
dent of the Baden-Württemberg Landtag);

1)

2)

3)

4)

5)

6)

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

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

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 Consti-
tution (Article I-5(1));

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);

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));

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);

(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.

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7)

8)

WHEREAS the Committee is called upon, along with the other institutions and national parlia-
ments, 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);

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
17 November 2005 (meeting of 16 November):

its 62nd plenary session, held on 16 and

Views and recommendations of the Committee of the
Regions

1. Preliminary remark concerning the status of the ratifi-

cation process for the Constitutional Treaty

be drawn up in which the European Commission is to assess
the proposed
the regulatory and financial consequences of
framework law for
(CdR
121/2005, point 2.1.2).

authorities

and local

regional

The Committee of the Regions

2. Political evaluation of subsidiarity and proportionality

1.1
notes that the majority of the Member States have rati-
fied 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 formu-
lating proposals and initiatives;

has emphasised the need for the local and regional
1.3
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 princi-
ples 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;

therefore appeals to the EU's institutions and bodies to
1.5
implement immediately, as far as is legally possible, the princi-
ples 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 consul-
tations prior to the adoption of all legislative acts and that, for
every European framework law, a ‘subsidiarity statement’ must

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 prin-
in particular through the work of the Constitutional
ciple,
Convention. This demonstrates its ability to assert itself and
influence the European legislative process;

2.2 welcomes the new definition of the subsidiarity prin-
ciple and its involvement in ex-post monitoring of compliance
with that principle; it also recognises that, together with other
institutions and national parliaments,
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);

it will

stresses that

the Constitutional
the changes under
2.3
Treaty have given it an important role to play in monitoring
the application of subsidiarity, thus strengthening its institu-
tional 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 institu-
tions requests and suggestions on the tangible economic and
social development needs voiced by local and regional authori-
ties. Moreover,
local and regional authorities can help in
promoting the idea of Europe among citizens;

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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);

2.14
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 Euro-
pean Commission, when applying the subsidiarity principle in
future, to highlight whether:

for the first

2.7 welcomes the fact
time, as the
that,
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 subsi-
diarity 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);

emphasises that

2.10
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 cohe-
sion 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 appli-
cation 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 responsibil-
ities, 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 compli-
ance 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 safe-
guarded within the context of local and regional self-govern-
ment;

(8) Opinion on a better division and definition of competence in the

European Union (CdR 119/2002 final).

(9) CdR 308/1998.

— 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;

regrets therefore that the provisions on the propor-
2.17
tionality 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;

refers in this context to the existing ECJ case law (10)
2.18
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;

(10) (C 491/01).

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to its right

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

level

2.20
therefore calls on the European Commission, the Euro-
pean 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 legiti-
macy 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;

invites

parliaments, which,

the
like
2.22
national
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
the subsidiarity
the efficient application of
protocol and to effectively and transparently pursue at national
level
the local and
regional level, in particular regional parliaments with legislative
powers, provided for in the Constitutional Treaty;

the consultation of

representatives of

for

3.2 welcomes the fact
the European Commission,
that
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 adminis-
tration 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;

proposes that, even during the consultations provided
3.4
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;

expects to be given the opportunity to make its contri-
3.6
bution in connection with the drafting of
the European
Commission's annual report to the European Council on the
its
application of
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;

the subsidiarity principle;

in particular,

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

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 develop-
ments 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 there-
fore invites the European Commission, when carrying out the
revision of the cooperation agreement due in 2005, to pay par-
ticular attention to issues of cooperation in relation to the
application of the subsidiarity principle and to its new role.

The Committee of the Regions

b) Legislative procedure

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 prin-
ciple;

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;

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

3.11
right to bring proceedings in defence of its rights;

is aware that it will be politically strengthened by the

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

therefore decides,

in the light of the deadlines that
3.13
apply within the early warning system and to complaints by
the CoR, to vest the Bureau with the power to check that legis-
lation 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
the commissions and their rapporteurs throughout
whole legislative process;

3.15
points out, however, the need to follow up its assess-
ment of the application procedures for the principles of subsi-
diarity 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;

therefore invites the Council of Ministers and the
3.16
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 responsi-
bilities for monitoring subsidiarity, to consider embarking on
in view of its
negotiations about a cooperation agreement;
responsibility for subsidiarity, this agreement should in particu-
lar 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 frame-
work, the subsidiarity monitoring instruments in a test phase,
in particular by setting up an electronic network with regional
and local authorities and their associations.

Brussels, 16 November 2005.

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;

notes that under Article III-365,

3.19
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 legisla-
tive 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 prin-
ciple 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 consulta-
tive 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;

decides that, as a rule, the Bureau shall take decisions
3.23
on lodging appeals, on the grounds of violations of the subsi-
diarity 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 stem-
ming from its networking with regional and local authorities
and their associations to bring actions about EU legislative acts
under internal procedures to be established.

The President

of the Committee of the Regions

Peter STRAUB

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APPENDIX

DRAFT SUBSIDIARITY ANALYSIS GRID (1)

1. Commission document reference

2. Legal basis

3. Justification and objective of the action:

— Is this action based on the Community's exclusive competences or on shared competences with the Member

States?

— Are the objectives of the proposed action in keeping with the Union's obligations?

— Does action at Community level bring added value?

— Has the potential inadequacy of action by Member States been demonstrated?

— Could the aim of the proposed action adequately have been achieved at local or regional level?

4. Local and regional dimension:

— Has the regional and local dimension of the proposed actions been taken into consideration?

— What implications have been detected for regulation at local and regional level?

5. Choice of instruments:

— Is the proposed instrument (directive, regulation, etc.) the most appropriate one?

6. Legislative and administrative simplification:

— Is the proposed action in keeping with the criteria for legislative and administrative simplification, both at Com-

munity and at Member State level?

— What implications — positive or negative — does the proposed action have for local and regional authorities?

7. Financial evaluation:

— Evaluation of the financial statement relating to the European Commission's proposal.

— Evaluation of the impact on local and regional finances.

8. External consultation:

— Has the consultation process taken account of the local and regional dimension of the proposed actions?

— Were local and regional authorities consulted about the European Commission's initiative? Was this consultation

relevant?

9. Impact assessment:

— Was an impact assessment of the European Commission's initiative carried out?

— Was territorial impact taken into account?

10. Proportionality:

— Is the action suitable, necessary and appropriate?

— Are the legal form and the scope and extent of the action appropriate?

— Are the financial costs and the administrative burden appropriate?

(1) This draft analysis grid has been drawn up as part of measure B32 of the CoR's administrative reform, whose aim is gradually to intro-
duce into the structure of CoR opinions an evaluation of compliance with the subsidiarity principle and the expected impact on
administration and local and regional finances, in accordance with Rule 51 of the CoR's Rules of Procedure. The operation of this
analysis grid is being assessed on the basis of a few test opinions and should be rolled out in the course of 2005. The grid will be
backed up by a political assessment contained within the body of the opinion and including implementing provisions.