REPORT FROM THE COMMISSION ON SUBSIDIARITY AND PROPORTIONALITY      (17th report on Better Lawmaking covering the year 2009)
Date: 2010-10-08
Institutions: European Commission
Subjects: activity report, application of EU law, operation of the Institutions, principle of subsidiarity

EN 

EN 

   EN 

 
EUROPEAN COMMISSION 

Brussels, 8.10.2010 
COM(2010) 547 final 

REPORT FROM THE COMMISSION 

ON SUBSIDIARITY AND PROPORTIONALITY  

(17th report on Better Lawmaking covering the year 2009) 

EN 

   EN 

 
 
  
 
 
 
 
REPORT FROM THE COMMISSION 

ON SUBSIDIARITY AND PROPORTIONALITY  

(17th report on Better Lawmaking covering the year 2009) 

1. 

INTRODUCTION 

This is the 17th report on the application of the principles of subsidiarity and proportionality 
which  the  Commission  presents  to  the  European  Council,  the  European  Parliament,  the 
Council and national Parliaments in line with the Protocol to the Treaty on these issues1. The 
report covers 2009 when the Nice Treaty was still in force, and briefly explains the changes 
introduced by the Lisbon Treaty, which came into force on 1 December 2009. As was the case 
for the 2007 and 2008 reports, it does not cover wider issues  of smart regulation which  are 
addressed in a specific Communication on Smart Regulation2. 

2. 

THE LEGAL AND INSTITUTIONAL FRAMEWORK 

2.1. 

The principles of subsidiarity and proportionality 

Subsidiarity  and  proportionality  are  fundamental  principles  of  European  law  which  are 
defined in Article 5 of the Treaty on European Union (TEU).  

Within the limits of the Union's competences, subsidiarity is a guiding principle for defining 
the boundary between Member State and EU responsibilities – that is, who should act? If the 
Union has exclusive competence in an area, it is clear that it is the Union which should act. If 
the  Union  and  the  Member  States  share  the  competence,  the  principle  clearly  establishes  a 
presumption  in  favour  of  the  Member  States  taking  action.  The  Union  should  only  act  if 
Member  States  cannot  achieve  the  objectives  sufficiently  and,  by  the  reason  of  the  scale  or 
effects, the Union can achieve them better.  

Proportionality  is  a  guiding  principle  when  defining  how  the  Union  should  exercise  its 
competences, both exclusive and shared – what should be the form and nature of EU action? 
Article  5 (4)  provides  that  the  content  and  form  of  Union  action  shall  not  exceed  what  is 
necessary  to  achieve  the  objectives  of  the  Treaties.  Any  decision  must  favour  the  least 
restrictive option. 

1 

2 

Protocol (No 30) to the Treaty establishing the European Community, applicable until 30/11/2009 and 
Protocol (No 2) to the Treaty on the Functioning of the European Union (TFEU), applicable since 
1/12/2009 
Commission Communication on Smart Regulation in the European Union  

EN 

2 

   EN 

 
 
 
 
                                                 
2.2. 

Application, opportunity for comments, and ex-post control 

All  institutions  of  the  Union  have  to  comply  with  both  principles.  The  Protocol  on  the 
application  of  the  principles  of  subsidiarity  and  proportionality  and  the  Inter-Institutional 
Agreement of 1993 on subsidiarity3 provide further details on how the two principles should 
be applied. The key elements of this framework are summarised here. 

The Commission must: consult widely before proposing legislation; state in the explanatory 
memorandum  for  each  legislative  proposal  the  reasons  for  concluding  that  the  proposal 
complies with subsidiarity and proportionality; and take into account the burden falling on the 
Union,  national  governments,  local  authorities,  economic  operators  and  citizens.  The 
European  Parliament  and  Council  must  provide  a  justification  regarding  subsidiarity  if  an 
amendment they make affects the scope of Union action4. The European Economic and Social 
Committee  and  the  Committee  of  the  Regions  express  their  views  either  when  they  are 
consulted or in own-initiative opinions.  

Finally,  the  Court  of  Justice  of  the  European  Union  can  review  the  legality  of  acts  of  the 
institutions for compliance with the principle of subsidiarity.  

Changes introduced by the Lisbon Treaty 

The  Lisbon  Treaty  has  introduced  several  changes  to  how  the  principles  of  subsidiarity  and 
proportionality should be applied. 

The revised Protocol contains a more specific requirement to provide for all draft legislative 
acts  a  statement  making  it  possible  to  appraise  compliance  with  the  principles.  While  it  no 
longer  mentions  the  guidelines  for  assessing  conformity  (such  as  'necessity'  and  'EU  value-
added' tests), the Commission will continue to use these guidelines and recommends the other 
actors to do likewise. 

The Lisbon Treaty provides an enhanced role for national Parliaments which can express their 
views on whether draft legislative proposals comply with the principle of subsidiarity. If they 
consider  that  the  proposal  does  not  comply,  they  have  the  right  to  send  an  opinion  to  the 
initiator of the legislation. Depending on the number of negative opinions, the Treaty provides 
two  mechanisms  as  set  out  in  Article  7  of  the  Protocol  –  the  so  called  'yellow  card'  and 
'orange card'. Where the number of negative opinions from national Parliaments represents at 
least one third of all the votes allocated to them (or one quarter for proposals in the area of 
judicial cooperation in criminal matters and police cooperation)5, the 'yellow card' mechanism 
applies.  Under  the  ordinary  legislative  procedure,  where  the  number  of  negative  opinions 
represents a simple majority, the 'orange card' mechanism applies. Both mechanisms foresee a 
review of the draft legislation and may lead to amendment or withdrawal of the proposal. The 
'orange  card'  also  involves  the  possibility  for  either  the  European  Parliament  or  Council  to 
stop the legislative procedure. 

The  revised  Protocol  also  includes  a provision  concerning  the  role  of  the  Committee  of  the 
Regions. For those cases where the TFEU provides for the Committee to be consulted, it now 

3 
4 
5 

OJ C 329, 6.12.1993, p. 132 
Section 2, point 3 of the Inter-Institutional Agreement on Subsidiarity of 1993 
Each national Parliament has two votes, in bicameral systems each of the two chambers has one vote. 

EN 

3 

   EN 

                                                 
has  the  right  to  bring  a  case  before  the  European  Court  of  Justice  if  it  believes  that  the 
subsidiarity principle has not been respected. Member States, themselves or on behalf of their 
national Parliaments, have a similar right.  

3. 

APPLICATION OF THE PRINCIPLES 

3.1. 

The Commission 

The  legislative  work  of  the  Commission  has  always  been  governed  by  the  need  to  respect 
subsidiarity  and  proportionality.  Checks  are  now  applied  at  three  key  stages  of  the  policy 
development process: 

•  A  preliminary  analysis  in  roadmaps  which  are  published  for  major  initiatives  when  the 
Commission  Work  Programme  is  agreed.  These  roadmaps  provide  a  preliminary 
description of a planned Commission initiative and aim to allow all interested actors to be 
informed in a timely manner. From 2010, the Commission is also publishing roadmaps for 
initiatives with significant impacts which are not in the Commission Work Programme. 

•  A  fuller  analysis  of  subsidiarity  as  part  of  the  impact  assessment  process,  taking  into 

account views expressed during stakeholder consultations. 

•  Finally,  a  justification  in  terms  of  subsidiarity  and  proportionality  in  the  explanatory 

memorandum and recitals of each legal proposal.  

The  most  detailed  analysis  of  subsidiarity  and  proportionality  is  provided  in  impact 
assessments. The Impact Assessment Board controls the quality of this analysis, and in 2009 
it  made  recommendations  on  subsidiarity  and  proportionality  in  27  out  of  79  impact 
assessments  (34 %).  In  its  2009  Report6  the  Board  recommended  that  the  Commission 
services  should  use  more  consistently  the  structured  questions  for  the  subsidiarity  and 
proportionality analysis provided in the revised Impact Assessment Guidelines7. 

The Board has asked for a better analysis of the principles in areas such as asylum, migration, 
consumer and health policies, transport and energy. For example, for the impact assessments 
for the proposals for Directives on Minimum Standards for the Qualification and Procedures 
of Asylum Seekers8, the Board asked the lead service to demonstrate better that the costs of the 
measures  were  proportionate  to  the  objectives,  and  did  not  go  beyond  the  obligations 
established by the Treaty and international law. For the impact assessment for the Consumer 
Rights Directive9, the Board asked the lead service to clarify how harmonisation of domestic 
sales in addition to cross-border sales would comply with the subsidiarity principle. For the 
Directive on Cross-Border Healthcare10, it noted the need to consider the appropriate level of 
action  while  applying  definitions  such  as  'appropriate  care'  and  'undue  delay'.  For  the 
Directive  on  Energy  Performance  of  Buildings11,  the  Board  recommended  that  the  lead 
service strengthen the cost-benefit analysis to demonstrate the value added of measures such 

6 
7 
8 
9 
10 
11 

SEC(2009) 1728 
SEC(2009) 92 
COM(2009) 551 and COM(2009) 554 
COM(2008) 614 
COM(2008) 414 
COM(2008) 780 

EN 

4 

   EN 

                                                 
as  the  lower  threshold  for  compulsory  energy  requirements  for  major  renovations  and  a 
compulsory  benchmarking  system  for  new  buildings.  The  Board  recommendations  have 
helped the Commission services to improve the subsidiarity analysis, and there have also been 
cases  where  its  advice  has  led  to  changes  in  the  proposals  to  ensure  compliance  with  the 
subsidiarity and proportionality principles (see Section 4). 

3.2. 

National Parliaments12 

Since  2006,  the  Commission  has  on  its  own  initiative  transmitted  all  new  proposals  to 
national  Parliaments,  and  has  put  in  place  a  procedure  for  replying  to  their  opinions13.  The 
Commission received 250 opinions in 2009 compared to 115 in 2007. About 10% contained 
comments  on  subsidiarity  and/or  proportionality,  with  in  most  cases  only  one  national 
chamber expressing a view14. The chambers with a particular interest in subsidiarity questions 
were  the  French  Sénat,  the  Austrian  Bundesrat,  the  German  Bundesrat  and  the  Dutch, 
Portuguese and Greek Parliaments. Some opinions did not question the respect of subsidiarity 
as such, but indicated that the Commission's justification was not sufficient.  

Subsidiarity exercises run by COSAC 

In  the  past three years,  the  Conference of Community and European Affairs Committees of 
Parliaments  of  the  European  Union  (COSAC)  has  conducted  exercises  to  simulate  the 
subsidiarity  control  mechanism  introduced  by  the  Lisbon  Treaty.  This  has  enabled  national 
Parliaments  to  refine  and  test  their  institutional  arrangements.  In  2009  COSAC  conducted 
three such exercises on Commission proposals for Standards of Human Organs Intended for 
Transplantation15, Right to Interpretation and to Translation in Criminal Proceedings16 and 
Instruments in Matters of Succession17. In all cases a large majority of participating chambers 
confirmed that the proposals complied with the subsidiarity principle, with very few seeing a 
reason for concern (the number of negative opinions was respectively one, three and one). 

3.3. 

The European Parliament and Council 

In  the  European  Parliament  compliance  of  draft  legislative  acts  with  the  principle  of 
subsidiarity is ensured by the committees in charge of a specific legislative dossier, together 
with  the  Committee  on  Legal  Affairs18.  In  the  Council,  the  Committee  of  the  Permanent 
Representatives  of  each  Member  State  (Coreper)  ensures  that  the  principles  of  legality, 
subsidiarity and proportionality are respected19. 

12 

13 
14 
15 
16 
17 
18 

19 

See  also  the  Commission  report  on  relations  between  the  European  Commission  and  national 
Parliaments (COM(2010) 291) 
COM(2006) 211 
See the Annex I for the list of the initiatives 
COM(2008) 818 
COM(2009) 338 
COM(2009)154 
Rules of Procedure of the European Parliament, 
http://www.europarl.europa.eu/sides/getLastRules.do?language=EN&reference=TOC  
Council Decision 2004/338/EC, Euratom of 22 March 2004 adopting the Council's Rules of Procedure, 
OJ L 106, 15.4.2004, p. 22 

EN 

5 

   EN 

                                                 
3.4. 

The Committee of the Regions 

The  Subsidiarity  Monitoring  Network  (SMN)  of  the  Committee  of  the  Regions  operates 
through  an  interactive  website20  and  its  membership  grew  by  20%  in  2009  to  111  partners. 
The  SMN  enables  its  members  to  take  part  in  the  Committee's  consultations  on  new  EU 
initiatives.  The  SMN  also  held  two  consultations  to  feed  local  and  regional  views  into  the 
Commission's impact assessment work21. In 2009 the first SMN Action Plan was launched to 
identify  best  practice  in  applying  the  subsidiarity  principle  in  Europe's  regions  and  cities  in 
selected  policy  areas  –  immigration,  climate  change,  social  policies,  health  policy  and 
innovation.  Given  the  new  role  which  the  Lisbon  Treaty  creates  for  the  Committee,  it  has 
adapted  its  Rules  of  Procedure22  and  as  from  2010  all  its  opinions  will  contain  an  explicit 
reference to the subsidiarity and proportionality principles.  

3.5. 

The Court of Justice  

The 2008 subsidiarity report mentioned the Roaming Regulation23, where the High Court of 
Justice  of  England  and  Wales  asked  the  Court  of  Justice  of  the  European  Union  if  the 
regulation infringed the principles of proportionality and/or subsidiarity by setting price caps 
on the costs of using a mobile phone while in another Member State. Following the opinion of 
the Advocate General in November 2009, the Court ruled in June 2010. It confirmed that the 
Regulation is proportionate to the objective of protecting consumers against high charges, and 
is justified on the grounds of subsidiarity as it is necessary to ensure the smooth functioning 
of the internal market in roaming services. In its findings, the Court underlined the fact that, 
before proposing the Regulation, the Commission had considered in its impact assessment the 
effectiveness and economic impacts of regulating the retail market, the wholesale market or 
both. 

4. 

KEY CASES WHERE SUBSIDIARITY CONCERNS WERE RAISED 

This section of the report gives an overview of Commission proposals which gave rise to most 
discussion  among  the  co-legislators  and  stakeholders  on  subsidiarity  and  proportionality. 
Some of these cases were mentioned in previous reports and discussions continued in 2009. 

Directive on Aviation Security Charges24 

The proposal lays down common principles that Member States and airport authorities must 
respect when determining how to recover the costs of airport security. The aim is to prevent 
distortions of competition. The Commission verified the proportionality of different measures 
as part of the impact assessment process, and as a result some elements such as an obligatory 
'one-stop' for security were dropped from the final proposal. The proposal also refrained from 
regulating  how  security  measures  should  be  financed,  leaving  Member  States  to  decide  this 
issue.  The  European  Parliament  wanted  to  reinforce  the  Directive  by  requiring  that  security 

20 
21 
22 
23 

24 

http://subsidiarity.cor.europa.eu  
Reducing Health inequalities in the EU and revision of the Drinking Water Directive. 
OJ L 6/14, 9.1.2010, p. 14 
Case C-58/8 Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile International AG, Orange Personal 
Communications Services Ltd v. Secretary of State for Business, Enterprise and Regulatory Reform 
about EC Regulation No 717/2007 
COM(2009) 217 

EN 

6 

   EN 

                                                 
measures, such as those to protect citizens from acts of terrorism, should be financed through 
public  funds  rather  than  by  passengers25.  While  it  also  proposed  to  include  all  commercial 
airports,  several  Member  States  in  Council  proposed  to  limit  the  scope  to  airports  where 
annual passenger traffic exceeds a certain threshold, in order to ensure that compliance costs 
are  proportionate  to  the  objectives  of  the  initiative26.  Political  agreement  has  not  yet  been 
reached. 

Directive on Energy Performance of Buildings11 

The  Commission  proposed  a  recast  of  the  Directive  as  part  of  the  Second  Strategic  Energy 
Review  in  November  2008.  While  in  general  all  institutions  welcomed  the  initiative,  views 
varied on the appropriate content and ambition level of EU action. 

In 2009 the Commission received opinions from the two chambers of the Dutch Parliament. 
While the First Chamber was positive, the Second Chamber argued that the proposal breached 
the subsidiarity principle because in its opinion it is for Member States to determine how and 
in which sectors the national climate targets are to be achieved.  

The  European  Parliament  proposed  amendments  which  added  to  the  level  of  ambition 
including  a  condition  that  from  2019  new  buildings  would  have  to  be  'zero-energy'27.  In 
Council, several Member States were concerned that the level of ambition was too high and 
that  "several  amendments  proposed  by  the  European  Parliament  appear  at  first  sight  to  be 
overly  ambitious  and  unrealistic"28.  They  considered  that  the  definition  of  low  and  zero 
carbon  buildings  and  the  quantitative  targets  raised  subsidiarity  issues  and  entailed  further 
costs  and  disproportionate  administrative  burdens.  A  compromise  was  agreed  in  November 
2009: all new buildings should comply with high energy-performance standards and supply a 
significant share of their energy requirements from renewable sources after the end of 2020. 
It is up to each Member State to define the standards for achieving these objectives. 

Directive on Equal Treatment outside Employment29 

In 2008, the Commission adopted this proposal to extend protection against discrimination on 
the grounds of age, disability, sexual orientation, religion or belief outside employment, and it 
was discussed in the 2008 subsidiarity report. To comply with the subsidiarity principle, the 
Commission made a clear distinction between EU and Member States competences with the 
aim to exclude from the scope of the directive issues that could potentially be considered part 
of national competence. While the Commission's proposal stated inter alia that 'this Directive 
is without prejudice to national laws on marital or family status and reproductive rights', the 
European Parliament Committee on Legal Affairs nevertheless considered that the boundaries 
between  Community  law  and  national  law  in  the  areas  of  family  law,  marriage  and 
reproduction  needed  to  be  further  specified30.  In  Council,  some  Member  States  raised 
questions  related  to  the  respect  of  the  subsidiarity  principle,  and  others  expressed  concerns 

25 
26 
27 
28 
29 
30 

Press release, 1.3.2010, ref. 20100301IPR69737 
Press release, 18.12.2009, ref. PRES/09/373  
EP position, 1st reading, ref. P6_TA(2009)0278 
Council doc. 8989/09  
COM(2008) 426 
Opinion of the Committee on Legal Affairs (13.2.2009) for the Committee on Civil Liberties, Justice 
and  Home  Affairs  on  the  proposal  for  a  Council  directive  on  implementing  the  principle  of  equal 
treatment between persons irrespective of religion or belief, disability, age or sexual orientation 

EN 

7 

   EN 

                                                 
about administrative and financial costs created by the Directive, including the possibility that 
they  may  be  disproportionate  to  the  objectives.  Discussions  under  the  Swedish  and  Spanish 
presidencies in 2009 and 2010 lead to a more precise definition of the scope of the action and 
more detailed references to the division of competences between the Member States and the 
EU, but political agreement has not yet been reached.  

Directive on the Protection of Soil31 

The discussions on this proposal were signalled in the 2007 and 2008 subsidiarity reports, and 
continued in 2009. The Commission proposal was supported by the European Parliament, but 
stopped  in  the  Council  by  a  blocking  minority  of  delegations,  some  of  which  opposed  the 
proposal  on  the  grounds  of  subsidiarity  and  others  because  of  expected  costs  and 
administrative burdens. Other Member States consider that EU level action is necessary, not 
least because soil has an influence on climate change and biodiversity which both have cross-
border effects. The file was a priority of the Spanish presidency in the first half of 2010, but a 
consensus has still not been reached.  

Directive on Cross-Border Healthcare10 

The  Commission  proposed  the  Directive  in  2008.  Although  Member  States  are  primarily 
responsible for their health systems, the need for EU level action arose following a number of 
rulings  of  the  European  Court  of  Justice  in  this  area.  The  Commission  received  seven 
opinions  from  the  chambers  of  national  Parliaments,  three  of  which  raised  subsidiarity 
concerns, on the grounds that the proposal might put into question the Member States' ability 
to plan and finance health services. While similar issues were raised during discussions in the 
European Parliament, it adopted the proposal in first reading in April 2009. 

The  Council  reached  political  agreement  on  8  June.  The  agreement  strengthens  provisions 
allowing Member States to develop "prior authorisation systems" for healthcare in another EU 
Member State and to refuse such authorisation. In addition, comitology is no longer foreseen 
for  eHealth  related  measures  as  was  the  case  in  the  Commission's  original  proposal.  This 
reflects national concerns over the need to control the flows of patients and to ensure planning 
and financial balance of their health systems32. 

Urban Mobility 

The  Commission  adopted  a  Green  Paper  'Towards  a  new  culture  for  urban  mobility'33  in 
2007 to identify what the EU should do in this area. The European Parliament in its resolution 
on  the  Green  Paper  argued  that  the  EU  should  not  legislate,  but  has  a  role  in  developing  a 
European approach and mainstreaming the needs of urban transport into other policy areas. In 
2009  the  Parliament  also  adopted  an  own  initiative  resolution  which  stressed  that  local 
authorities  often  cannot  meet  urban  mobility  challenges  without  European  coordination.  It 
proposed  that  the  Commission  should  provide  studies  and  a  legal  framework,  finance 
research,  and  promote  best  practices34.  However,  in  its  opinion  on  the  2009  subsidiarity 

31 
32 
33 
34 

COM(2006) 232 
Council doc 15181/09 
COM(2007) 551 
EP Legislative Observatory, ref. INI/2008/2041 

EN 

8 

   EN 

                                                 
report35 the German Bundesrat expressed the view that certain measures in the Green Paper 
were not in line with the principles of subsidiarity and proportionality, as measures at Member 
State  level  are  sufficient.  This  was  in  contrast  to  the  Leipzig  Charter  put  forward  by  the 
German  EU  Presidency36  which,  while  noting  that  urban  development  policy  should  be 
decided  at  national,  regional  or  local  level,  saw  value  added  of  EU  action  in  pooling  best 
practice and supporting urban research. 

The Commission adopted the Urban Mobility Action Plan37 in September 2009. The impact 
assessment  process  helped  to  focus  actions  on  the  exchange  of  information  and  good 
practices. The European Economic and Social Committee welcomed the plan, but called for 
EU  powers  and  responsibilities  to  be  more  clearly  defined38.  The  Committee  of  Regions 
supported  the  Action  Plan  noting  that  the  measures  do  not  undermine  the  subsidiarity 
principle39.  The  Council  considered  the  principle  of  subsidiarity,  welcomed  the  Action  Plan 
and  asked  the  Commission  to  include  in  the  upcoming  White  Paper  on  European  transport 
policy targets and policies for urban mobility40. 

Directive on Standards of Human Organs Intended for Transplantation15 

The  Commission  proposal,  adopted  in  2008,  aimed  at  securing  basic  quality  and  safety 
standards  for  human  organs  intended  for  transplantation.  COSAC  carried  out  a  'subsidiarity 
check',  and  of  the  27 opinions  received,  23  were  positive.  The  Austrian  Bundesrat  found  a 
breach  of  the  subsidiarity  principle.  The  German  Bundestag,  UK  House  of  Commons  and 
Dutch Tweede Kamer der Staten-generaal noted that the Commission's subsidiarity analysis 
did not provide a sufficient basis for them to conclude. In addition the German Bundesrat and 
the  Italian  Senato  della  Repubblica  found  that  some  provisions  may  have  gone  beyond  the 
Union's competences. No such issues were raised by the co-legislators, however, and Member 
States in Council gave the Directive political backing, and the European Parliament adopted it 
in first-reading. 
Consumer Rights Directive9 

The Commission proposal sought to simplify the EU framework for consumer protection by 
merging  four  consumer  rights  directives,  and  by  fully  harmonising  essential  rights  of 
consumers to reduce legal fragmentation.  

Five  of  the  six  opinions  from  the  chambers  of  national  Parliaments,  concluded  that  full 
harmonisation of certain rights would be contrary to subsidiarity, as it would not allow for the 
application  of  national  law  which  in  some  cases  provides  for  a  higher  level  of  consumer 
protection.  In  the  European  Parliament  there  were  concerns  on  whether  the  degree  of  legal 
fragmentation  among  Member  States  justifies  action  at  EU  level  and  whether  full 
harmonisation would be too restrictive41. In Council, a majority of Member States expressed a 
preference  for  a  mixed  and  flexible  harmonisation42.  In  order  to  overcome  the  resistance  to 
full  harmonisation,  the  Commission  has  suggested  that  a  possible  way  forward  could  be  to 

35 
36 
37 
38 
39 
40 

41 
42 

Drucksache 745/09 (Beschluss)  
Leipzig Charter on Sustainable European Cities and Territorial Agenda of the European Union 
COM(2009) 490 
Information Memo TEN/414 - CESE 36/2010  
Opinion on Action Plan on Urban Mobility, COTER-V-003 
Council  conclusions  on  Action  Plan  on  Urban  Mobility,  3024th  Transport,  Telecommunications  and 
Energy Council meeting, Luxembourg, 24 June 2010 
Press-release, 17.3.2010, ref. 20100317IPR70798 
Press release, 25.5.2010, ref. MEMO/10/212 

EN 

9 

   EN 

                                                 
focus  full  harmonisation  on  issues  with  the  strongest  internal  market  dimension  such  as  the 
rules on distance and off-premises contracts43. 

43 

Press release, 15.3.2010, ref. SPEECH/10/91 

EN 

10 

   EN 

                                                 
5. 

CONCLUSIONS 

The majority of Commission proposals were adopted by the co-legislators without significant 
discussions  on  subsidiarity  and  proportionality.  For  those  proposals  compliance  with  the 
principles of subsidiarity and proportionality has presumably not been an issue. However, the 
analysis  above  has  shown  that,  where  compliance  is  questioned,  the  actors  involved  in 
discussions  hold  a  broad  variety  of  views.  This  is  the  case  not  only  between  the  different 
institutions, but also within these institutions, and sometimes between the different actors of 
the same Member State. 

The debate on subsidiarity and proportionality will be further enriched by the role of national 
Parliaments introduced by the Lisbon Treaty. The Commission is committed to strengthening 
further the relations with national Parliaments within the framework of the political dialogue 
developed  since  2006,  and  the  subsidiarity  control  mechanism  is  a  key  element  of  this 
process.  An  overview  of  how  the  mechanism  is  operating  will  be  presented  in  the  next 
subsidiarity report44.  

44 

By June 2010 the Commission had transmitted 19 proposals to national Parliaments and had received 
four reasoned opinions  

EN 

11 

   EN 

                                                 
ANNEX I 

List of Commission initiatives on which the opinions submitted  
by national Parliaments contained comments  
on subsidiarity or proportionality analysis 

Directive on Cross-Border Healthcare (COM(2008) 414) 

Consumer Rights Directive (COM(2008) 614) 

Directive on the Protection of Animals used for Scientific Purposes 
(COM(2008) 543) 

Decision on Critical Infrastructure (COM(2008) 676) 

Directive on Community Framework for Nuclear Safety (COM(2008) 790) 

Directive on Minimum Standards for the Reception of Asylum Seekers 
(COM(2008) 815) 

Green Paper on Collective Redress (COM(2008) 794) 

Directive on Energy Performance of Buildings (COM(2008) 780) 

Communication on Public Procurement for a Better Environment (COM(2008) 400) 

Late Payment Directive (COM(2009) 126) 

Decision on Combating Sexual Abuse and Child Pornography (COM(2009) 135) 

Stockholm Programme (COM(2009) 262) 

Communication on Production Method of EU Statistics (COM(2009) 404) 

Green paper on learning mobility (COM(2009) 329) 

Regulation on prevention of accidents in civil aviation (COM(2009) 611) 

Urban Mobility Action Plan (COM(2009) 490) 

Directive on prevention from sharp injuries in the healthcare sector 
(COM(2009) 577) 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 

14. 

15. 

16. 

17. 

18. 

Communication on joint programming in research (COM(2008) 468)  

EN 

12 

   EN