REPORT FROM THE COMMISSION ON SUBSIDIARITY AND PROPORTIONALITY (18th report on Better Lawmaking covering the year 2010)
Date: 2011-06-10
Institutions: European Commission
Subjects: EU institution, application of EU law, principle of proportionality, principle of subsidiarity

EUROPEAN COMMISSION 

Brussels, 10.6.2011 
COM(2011) 344 final 

REPORT FROM THE COMMISSION 

ON SUBSIDIARITY AND PROPORTIONALITY  

(18th report on Better Lawmaking covering the year 2010) 

 
 
 
 
  
 
 
 
REPORT FROM THE COMMISSION 

ON SUBSIDIARITY AND PROPORTIONALITY  

(18th report on Better Lawmaking covering the year 2010) 

1. 

INTRODUCTION 

This  is  the  eighteenth  annual  report  on  the  application  of  the  principles  of  subsidiarity  and 
proportionality  in  EU  lawmaking.  According  to  the  Protocol  (No  2)  on  the  application  of 
these principles (hereinafter ‘the Protocol’) attached to the Treaty on the Functioning of the 
European Union (TFEU), the Commission has to present this report each year to the European 
Council, the European Parliament, the Council and national Parliaments.1 

The  report  looks  at  how  the  principles  are  implemented  by  different  institutions  –  the 
Commission,  the  European  Parliament,  the  Council  and  the  Committee  of  the  Regions,  and 
presents in more detail some initiatives which have raised subsidiarity issues. It also examines 
how  the  subsidiarity  control  mechanism  of  national  Parliaments,  which  was  one  of  the 
innovations introduced by the Lisbon Treaty,2 has been implemented. 

2. 

THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY 

Subsidiarity and proportionality are enshrined in Article 5 of the Treaty on European Union 
(TEU).  

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  a 
particular area,3 then clearly it is the Union which should act. If the Union and the Member 
States  share  competence,4  the  principle  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  if,  by  reason  of  the  scale  or  effects,  the  Union  can  achieve  them 
better. 

1 

2 
3 

4 

Wider smart regulation issues were addressed in the Commission Communication on Smart Regulation 
(COM(2010) 543). 
The Lisbon Treaty came into force on 1 December 2009. 
According to Article 3 of the TFEU these areas are customs union, the competition rules necessary for 
the functioning of the internal market, monetary policy of euro-zone, conservation of marine resources, 
and common commercial policy. 
According to Article 4 of the TFEU these areas are internal market, social policy, cohesion, agriculture 
and fisheries, environment, consumer protection, transport, trans-European networks, energy, freedom, 
security and justice, and certain public health matters. 

EN 

1 

   EN 

 
 
 
                                                 
Proportionality  is  a  guiding  principle  for  determining  how  the  Union  should  exercise  its 
competences, both exclusive and shared – what should be the form and nature of EU action? 
The  TEU  provides  that  the  content  and  form  of  Union  action  must  not  exceed  what  is 
necessary  to  achieve  the  objectives  of  the  Treaties.  Any  decision  must  favour  the  least 
restrictive option.  

3. 

APPLICATION OF THE PRINCIPLES BY THE INSTITUTIONS 

Decisions about whether to propose action at EU level (subsidiarity) and, if so, the extent of 
the  action  (proportionality)  are  fundamental  to  smart  regulation.1  The  appropriate  level  of 
action  sometimes  emerges  as  part  of  the  policy  design  and  inter-institutional  legislative 
process.  

It  is  imperative  to  make  the  arguments  on  subsidiarity  and  proportionality  transparent, 
because this enables the different players to deliberate constructively over the validity of their 
positions.  Therefore,  irrespective  of  where  the  initiative  originates,  the  draft  legislative  act 
should  contain  a  detailed  ‘statement’  making  it  possible  for  the  other  actors  to  appraise 
compliance with the principle. According to the Protocol, this statement should contain some 
assessment  of  the  proposal’s  financial  impact,  take  account  of  financial  or  administrative 
burdens, and in case of directives, mention any implications for national and regional rules. 
The  conclusions  should  be  substantiated  by  qualitative  and,  wherever  possible,  quantitative 
indicators.  

Subsidiarity  cannot  be  easily  validated  by  operational  criteria.  The  Protocol,  as  revised  by 
the  Lisbon  Treaty,  no  longer  mentions  conformity  tests,  such  as  ‘necessity’  and  ‘EU  value-
added’.  Instead  it  has  shifted  the  application  mode  towards  the  procedural  aspects  ensuring 
that all key actors can have their say. The Commission has continued to use ‘necessity’ and 
‘EU value-added’ tests as part of its analytical framework and recommends the other actors to 
do likewise.  

A fair political judgement at the pre-legislative phase is important to ensure that proposals 
get the subsidiarity issues right from the beginning. At the post-legislative stage, the Court of 
Justice could be called on to check the legality of adopted legislation. The Court has yet to 
annul a measure for breach of subsidiarity. 

3.1. 

The Commission 

The  Commission,  as  the  main  author  of  legislative  proposals  under  its  right  of  initiative, 
should ensure that the correct choices about whether and how to propose European action are 
made at an early stage of policy development.  

EN 

2 

   EN 

 
The  Commission  publishes  roadmaps5  for  all  the  major  initiatives.  Roadmaps  outline  the 
Commission’s  intentions,  including  an  initial  subsidiarity  and  proportionality  justification. 
These  ideas  are  verified  later  during  stakeholder  consultation  and  impact  assessment  (IA) 
work. The subsidiarity statement for each legislative proposal is presented in the explanatory 
memorandum  and  recalled  in  the  recitals  of  the  proposal.  IAs,  which  accompany  proposals 
with  significant 
the  most  detailed  analysis  of  subsidiarity  and 
proportionality. The quality of this analysis is scrutinised by the IA Board. 

impacts,  provide 

In 2010, the Board commented on subsidiarity and proportionality issues in more than half of 
the cases it examined,6 and identified three main areas for improvement: 

–  Need for more robust evidence of EU value added. For example, for the initiative on the 
European Dimension in Sport,7 the Board was concerned about the limited evidence base 
for  a  planned  financing  programme.  Similarly,  the  Board  questioned  the  added  value  of 
EU-level  measures  for  the  idea  of  a  mountain  product  label  (initially  included  in  the 
Package  of  Agricultural  Product  Quality8).  In  both  cases  the  relevant  services  have 
decided to conduct further analysis before proposing EU action. 

–  Need  for  thorough  subsidiarity  analysis  for  initiatives  extending  the  scope  of  EU 
intervention.  This  was  the  case  for  several  initiatives  adopted  in  the  aftermath  of  the 
financial  crisis  –  amendments  to  the  Directives  on  Deposit  Guarantee  Schemes9  and 
Investor  Compensation  Schemes,10  an  initiative  on  Short  Selling  and  Credit  Default 
Swaps,11 and the White Paper on Insurance Guarantee Schemes.12 

–  The Board questioned the preferred level of harmonisation on several occasions, given 
the differences in national situations. This was the case for amendments to the Regulation 
on Judgments in Civil and Commercial Matters13 and a proposed Regulation on Property 
Consequences of Registered Partnerships.14 

5 

6 
7 

8 
9 
10 
11 
12 
13 
14 

Access to roadmaps is via the Commission’s IA Website: 
http://ec.europa.eu/governance/impact/index_en.htm. 
http://ec.europa.eu/governance/impact/key_docs/docs/sec_2011_126_en.pdf. 
COM(2011) 12, here and afterwards access to IAs and IA Board opinions is via the Commission’s IA 
Website: http://ec.europa.eu/governance/impact/ia_carried_out/cia_2011_en.htm. 
COM(2010) 733. 
COM(2010) 368. 
COM(2010) 371. 
COM(2010) 482. 
COM(2010) 370. 
COM(2010) 748 (recast). 
COM(2011) 127. 

EN 

3 

   EN 

 
                                                 
3.2. 

National Parliaments 

The  subsidiarity  control  mechanism  introduced  by  the  Lisbon  Treaty  enhances  the  role  of 
national  Parliaments,  which  can  express  their  views  on  whether  draft  legislative  proposals 
comply  with  the  principle  of  subsidiarity.  Depending  on  the  number  of  reasoned  opinions 
concluding that a proposal is in breach  of  the subsidiarity  principle, the Treaty provides for 
two mechanisms – the so-called ‘yellow card’ and ‘orange card’.15 Both mechanisms entail a 
review of the draft legislation and may lead to amendment or withdrawal of the proposal.  

Since 2006 the Commission has, within the framework of the political dialogue,16 transmitted 
all  new  proposals  to  national  Parliaments,  and  replied  to  their  opinions.17  As  from 
1 December  2009,  this  framework  has  been  used  in  parallel  for  the  subsidiarity  control 
mechanism. By the end of 2010, the Commission had sent out 82 draft legislative proposals 
falling within the scope of the Protocol and received 211 opinions. While most of the opinions 
concentrated  on  the  content  of  the  proposal,  a  total  of  34  opinions  raised  subsidiarity 
concerns.  For  five  legislative  proposals  the  Commission  received  more  than  one  reasoned 
opinion,18  but  in  all  of  these  cases  the  threshold  for  a  ‘yellow  card’  was  far  from  being 
reached. 

Some  replies  from  the  national  Parliaments  have  also  highlighted  insufficient  or  missing 
subsidiarity justification in a number of the Commission’s proposals. This appeared to be in 
particular  the  case  for  proposals  on  minor  amendments  to  existing  legislation.  The 
Commission  will  take  measures  to  ensure  proper  subsidiarity  justification  in  explanatory 
memoranda of all legislative proposals, including, for instance, by recalling and reconfirming 
the subsidiarity analysis made in the past.  

3.3. 

The European Parliament and the Council 

The legislators – the European Parliament and the Council – act at the final stage of the pre-
legislative  phase.  They  must  validate  the  proposal’s  conformity  with  the  principles  of 
subsidiarity  and  proportionality,  and  provide  a  relevant  justification  if  an  amendment  they 
make affects the scope of Union action.19  

In  the  Council,  the  Committee  of  the  Permanent  Representatives  of  each  Member  State 
(Coreper)  ensures  that  the  principles  are  respected.20  In  the  European  Parliament,  the 
compliance  is  verified  by  the  committees  in  charge  of  specific  legislative  dossiers,  together 
with the Committee on Legal Affairs. 

15 
16 
17 
18 

19 
20 

See also Article 7 of the Protocol. 
COM(2006) 211. See also the Commission 2010 Report on relations with national Parliaments. 
See also http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/index_en.htm. 
See  also  Annex,  further  details  via  IPEX  (a  dedicated  website  for  the  inter-parliamentary  exchange): 
http://www.ipex.eu/ipex/. 
See the Inter-Institutional Agreement on subsidiarity (OJ C 329, 6.12.1993, p. 132). 
Council Decision 2009/937/EU, OJ L 325, 11.12.2009, p. 35. 

EN 

4 

   EN 

 
                                                 
The  Council  and  the  European  Parliament  have  both  set  up  their  own  procedures  to 
implement  the  subsidiarity  control  mechanism.  The  Parliament’s  Rules  of  Procedure  were 
amended  to  ensure  that  the  reasoned  opinions  of  national  Parliaments  are  taken  into 
consideration  in  parliamentary  discussions.21  The  Council  has  ensured  that  the  national 
Parliaments were consulted on the initiatives originating from a group of Member States.22 

3.4. 

The Committee of the Regions 

The  Committee  of  the  Regions  expresses  its  views  either  when  it  is  consulted  or  in  own-
initiative  opinions.  The  Lisbon  Treaty  empowers  the  Committee  to  challenge  ex  post  the 
validity of legislation that could violate the principle of subsidiarity, but only in those areas 
where the Committee is to be consulted. As from 2010 the Committee has adapted its Rules of 
Procedure23  to  the  effect  that  all  its  opinions  should  contain  an  explicit  reference  to  the 
subsidiarity and proportionality principles.  

The  Subsidiarity  Monitoring  Network  (SMN)  of  the  Committee  included  by  the  end  of  the 
year  2010  113  regional partners.  In  2010  the  SMN  conducted  five  targeted  consultations.  It 
also  embarked  on  the  first  Action  Plan  to  identify  best  practices  in  the  application  of  the 
subsidiarity  principle  in  Europe’s  regions  and  cities.  In  addition,  the  Committee  plans  to 
develop  the  functionality  of  the  SMN  further  to  support  the  participation  of  regional 
parliaments in the subsidiarity control mechanism.  

The Committee has issued its first Annual Report on Subsidiarity.24 

3.5. 

The Court of Justice  

The  Court  of  Justice  of  the  European  Union,  in  accordance  with  Article  263  TFEU,  is 
competent to review the legality of legislative acts, as regards compliance with the principle 
of subsidiarity. The Protocol particularly states that the Committee of the Regions or Member 
States,  themselves  or  on  behalf  of  their  national  Parliaments,  can  bring  a  case  before  the 
Court.  

Apart  from  the  ruling  on  the  Roaming  Regulation,25  which  has  already  been  covered  in  the 
2009 report, there has been no new case law to record. 

21 

22 

23 
24 
25 

Rules of Procedure of the European Parliament, 
http://www.europarl.europa.eu/sides/getLastRules.do?language=EN&reference=TOC. 
In 2010: Directive on the Rights to Interpretation and to Translation in Criminal Proceedings 
(2010/0801 (COD)), Directive on the European Protection Order (2010/0802 (COD)) and Directive on 
European Investigation Order (2010/0817 (COD)). 
OJ L 6, 9.1.2010, p. 14. 
http://portal.cor.europa.eu/subsidiarity/news/Pages/CoRSubsidiarityAnnualReport2010.aspx. 
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. 

EN 

5 

   EN 

 
                                                 
4. 

KEY CASES WHERE SUBSIDIARITY AND PROPORTIONALITY CONCERNS WERE RAISED 

This  section  looks  at  the  Commission  proposals  which  have  generated  the  most  discussion 
among the legislators and stakeholders on subsidiarity and proportionality. 

4.1. 

Follow-up to cases mentioned in previous reports 

For some of the cases mentioned in earlier reports, such as the Directives on Aviation Security 
Charges,26  Protection  of  Soil,27  Equal  Treatment  outside  Employment28  and  Consumer 
Rights,29 there were no significant developments in ongoing legislative procedures.  

In the subject of Patients’ Rights in Cross-Border Healthcare,30 mentioned in the 2009 report, 
a  second-reading  agreement  was  reached  after  long  negotiations,  at  the  beginning  of  2011. 
Throughout  the  whole  procedure  the  main  concern  was  the  delicate  balance  to  be  found 
between  respecting  national  competences  to  organise  and  finance  health  care,  on  the  one 
hand, and codifying patients’ rights as recognised by the Court of Justice, on the other hand.  

Regarding the Maternity Leave Directive,31 mentioned in the 2008 report, the legislators have 
still not managed to find common ground. In 2008, after having consulted the European social 
partners,  the  Commission  proposed  to  extend  the  right  to  maternity  leave  from  14  to  18 
weeks,  in  principle  with  full  salary.  The  Parliament’s  resolution  adopted  in  October  2010 
suggested a more ambitious approach: to lift the minimum right to fully paid maternity leave 
to  20  weeks  and  add  an  entitlement  of  two  weeks  of  paternity  leave.  Mindful  of  the 
subsidiarity principle, the overwhelming majority of Members voted in favour of a ‘passerelle 
clause’ offering national governments discretion to adapt this policy to their social systems. 
However, delegations in the Council advocated a more flexible approach. They also found the 
measures  expensive  in  a  time  of  economic  austerity.  The  Belgian  Presidency  has  written  to 
the social partners asking for their views.  

26 

27 
28 
29 
30 
31 

COM(2009) 217. Here and afterwards, details on inter-institutional discussion are accessible via PreLex 
database: http://ec.europa.eu/prelex/apcnet.cfm. 
COM(2006) 232. 
COM(2008) 426. 
COM(2008) 614. 
COM(2008) 414. 
COM (2008) 637. 

EN 

6 

   EN 

 
                                                 
4.2. 

Further cases where subsidiarity was debated 

Seasonal Workers 

The  Commission  presented  a  proposal  for  a  Seasonal  Workers  Directive32  within  a  legal 
migration package. This proposal has received the highest number of reasoned opinions from 
national Parliaments so far33 – in all, nine chambers expressed subsidiarity concerns.34 They 
found that the subject matter is already sufficiently regulated at national level and that the EU 
cannot adequately address national specificities. Further, given that the Member States remain 
in  control  of  the  volumes  of  the  admitted  third-country  nationals,  the  proposal  may  not 
achieve the goal of managing migratory flows. At the same time, nine chambers35 delivered 
positive  opinions,  noting  that  the  proposal  helps  to  ensure  uniform  protection,  common 
admission criteria and conditions of residence throughout the EU. They appreciated the fact 
that the Member States are given the right to set admission quotas. 

Some chambers, both those which questioned subsidiarity and those which did not, found the 
proposal to be in breach of the proportionality principle as it can have an impact on national 
social security systems. Two chambers36 formally opposed the proposal on these grounds.  

The Commission emphasised in its replies37 that the creation of a common EU framework is 
necessary to avoid distortion of migratory flows and irregular entries, to protect third-country 
seasonal  workers  and  to  prevent  social  dumping.  It  also  stressed  that  the  proposal  includes 
provisions  which  should  allow  Member  States  to  adjust  it  to  their  national  labour  market 
specificities. 

The  Committee  of  the  Regions  in  its  opinion  took  note  of  the  views  and  arguments  of  the 
national Parliaments. The Committee however concluded that the proposal is compatible with 
the  subsidiarity  principle,  as  it  prevents  national  systems  from  engaging  in  a  race  to  the 
bottom with regard to protection of seasonal workers. The examination of the proposal by the 
legislators is at an early stage.  

Deposit Guarantee Schemes 

In July 2010, the Commission tabled a proposal to reinforce the Deposit Guarantee Scheme 
framework38 in the EU as a result of the weaknesses revealed by the financial crisis.  

32 
33 

34 
35 

36 
37 

38 

COM(2010) 379. 
Here and afterwards, details on opinions of national Parliaments are accessible via IPEX database: 
http://www.ipex.eu/ipex/cms/home/Documents/dossier_COD20100210/lang/en. 
See Annex for details. 
Latvian  Saeima,  Lithuanian  Seimas,  German  Bundesrat,  Italian  Senato  and  Camera  dei  Deputati, 
Finnish Eduskunta, Portuguese Assembleia and Spanish Congreso de los Diputados and Senado. 
Latvian Saeima and Lithuanian Seimas. 
Here and afterwards, details on Commission replies to national Parliaments are accessible via 
http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/index_en.htm. 
COM(2010) 368 (recast). 

EN 

7 

   EN 

 
                                                 
 
 
The proposal received 11 reactions from national Parliaments. Of these, five39 raised explicit 
subsidiarity concerns; principally that the  Directive  would  not sufficiently take  into  account 
the  characteristics  of  the  national  systems  or  could  reduce  the  current  level  of  protection. 
Another  controversial  point  was  the  proposed  mutual  borrowing  facility  between  schemes, 
which was seen as potentially increasing moral hazard and acting as a disincentive to establish 
adequate national coverage. At the same time, six chambers40 stated that the proposal was in 
line  with  the  subsidiarity  principle,  in  that  it  would  help  to  overcome  the  fragmentation  of 
national rules. 

In its replies the Commission noted that harmonisation would help to promote the integration 
of  financial  markets.  The  schemes,  not  guaranteeing  deposits  but  mutually  protecting  banks 
against  a  failure  (mutual  guarantee  schemes),  could  continue  to  fulfil  their  function. 
Concerning the mutual borrowing facility, the Commission clarified that it would be triggered 
as  a  last  resort  only,  is  subject  to  safeguards  to  avoid  moral  hazard  and  should  ultimately 
reduce the need to have recourse to taxpayers’ money. 

The proposal is currently being discussed by the European Parliament and the Council. 

Food Distribution to the Most Deprived People 

In  2008  the  Commission  proposed  a  revision  of  the  Food  Distribution  programme  for 
deprived  persons,41  which  has  been  in  place  since  1987.  The  European  Parliament  was 
supportive of the proposal and made several, mostly technical, modifications. In the Council, 
discussions failed to progress because a blocking minority of Member States argued that this 
scheme  does  not  relate  to  the  Common  Agricultural  Policy,  as  food  distribution  belongs  to 
social welfare policies under the national responsibility. 

In  2010  the  Commission  adopted  an  amended  proposal,42  to  adapt  the  implementation 
mechanisms  of  the  2008  proposal  to  the  provisions  of  the  Lisbon  Treaty.  Several  national 
Parliaments  declared  that  the  proposal  does  not  comply  with  the  subsidiarity  principle.  In  a 
similar  vein  to  Council  discussions,  they  argued  that  the  objectives  had  shifted  from  an 
agricultural  policy  to  social  policy.  Some  national  Parliaments  also  noted  that  there  was  no 
subsidiarity statement accompanying the 2010 proposal.  

In its replies, the Commission explained that the purpose of this proposal is two-fold. While it 
certainly seeks to fulfil the Treaty objective on food security, it also has a primary role in the 
disposal of public intervention stocks of agricultural products. The Commission pointed out 
that a thorough subsidiarity analysis was provided in the IA accompanying the 2008 proposal. 

Both the Committee of the Regions and the Economic and Social Committee considered the 
proposal to be acceptable. It is currently being discussed by the legislators. 

39 
40 

41 
42 

See Annex for details. 
Portuguese Assembleia, Italian Camera dei Deputati and Senato, Austrian Nationalrat and Bundesrat, 
and Czech Senát. 
COM (2008) 563. 
COM(2010) 486. 

EN 

8 

   EN 

 
                                                 
Support for Rural Development by the EAFRD Regulation and 
Establishing Common rules for a Direct Support Scheme for Farmers 

The  aim  of  these  proposals  was  to  align  the  powers  conferred  on  the  Commission  under 
Regulation  (EC)  No  1698/2005  and  Regulation  (EC)  No  73/2009  to  the  provisions  of  the 
Lisbon Treaty.43 In addition, the Commission introduced some elements of simplification.  

According  to  several  national  Parliaments,  the  subsidiarity  argumentation  provided  in  the 
explanatory  memoranda  was  not  sufficient.  Some  chambers  also  thought  that  the  new 
provisions on delegated and implementing powers would de facto give additional powers to 
the  Commission.  In  its  replies,  the  Commission  clarified  the  principles  of  the  Lisbon 
provisions  on  delegated  and  implementing  acts  and  explained  that  these  proposals  cover 
merely technical adaptations and simplification. For these reasons, no new exhaustive analysis 
on the question of subsidiarity was undertaken. 

The  Commission  has  several  similar  alignment  acts  planned  for  2011.  In  order  to 
accommodate  the  concerns  of  national  Parliaments,  the  Commission  will  do  its  utmost  to 
reinforce the subsidiarity statements for these proposals. 

Cultivation of Genetically Modified Organisms (GMOs) 

This  package,  containing  a  Communication,  a  Recommendation  and  a  proposal  for  a 
Regulation,44 was adopted by the Commission in July 2010. The package responds to Member 
States’ repeated requests to allow decisions on cultivation of authorised GMOs to be taken at 
national level, while maintaining the EU system of authorisation, based on the evaluation of 
risks to health and the environment. While some delegations in the Council have welcomed 
the  text,  the  approach  is  being  criticised  by  others,  who  prefer  a  fully  centralised  European 
approach, often for reasons closely linked to the sensitivity of the topic.  

Single European Railway Area  

In  September  2010  the  Commission  proposed  a  Directive  that  would  establish  a  ‘Single 
European Railway Area’45 aiming to revive the railway sector. The Luxembourg Chambre des 
Députés submitted a reasoned opinion concluding that, while in general there is scope for EU 
action,  several  concrete  provisions  are  in  breach  of  the  subsidiarity  and  proportionality 
principles. 

The Council held a first policy debate on the proposal in December 2010, which highlighted 
some subsidiarity concerns. One Member State called for prudence on the proposal to develop 
and  publish  multiannual  national  rail  infrastructure  strategies,  considering  long-term 
infrastructure  planning  as  a  matter  of  national  competence.  As  regards  the  temporary 
reduction of track access charges for trains equipped with the European train control system, 
several delegations stressed that they want to keep the right to levy new charges or increase 
the existing ones in order to compensate for loss of revenue caused by such a reduction. 

43 
44 
45 

COM(2010) 537 and COM(2010) 539. 
COM(2010) 380 and COM(2010) 375. 
COM(2010) 475 (recast). 

EN 

9 

   EN 

 
                                                 
The proposal is awaiting its first reading in the European Parliament. The Committee of the 
Regions, while not yet having given its opinion on subsidiarity, has indicated that the issue is 
of prime concern to local and regional authorities.46 

Rights of passengers in bus and coach transport 

In  2008  the  Commission  proposed  that  the  Regulation,  which  aimed  to  assure  quality  of 
service  and  passenger  rights,  would  apply  to  all  bus  services,  including  those  at  regional, 
urban and suburban areas.47 This view was shared by the European Parliament. However, an 
overwhelming  majority  of  Member  States  in  the  Council  insisted,  on  the  grounds  of 
subsidiarity,  on  exclusion  of  regional,  urban  and  suburban  services  from  the  scope  of  the 
Regulation.  In  the  final  agreement,  which  was  concluded  in  the  Conciliation  Committee  in 
November 2010, the European Parliament finally agreed on the application of the Regulation 
in general only to services with a travelling distance of over 250 kilometres. In exchange, the 
Council agreed to the application of certain provisions to all services. 

Measures to safeguard security of gas supply  

In response to the Russian-Ukrainian gas crisis in January 2009, the Commission proposed48 
to  revise  existing  legislation  on  security  of  gas  supply  with  a  view  to  improve  preventive 
action  as  well  as  reaction  to  specific  disruptions.  The  Council  in  principle  welcomed  the 
proposal,  although  several  delegations  asked  for  further  clarification  about  the  roles  and 
responsibilities  of  the  market  actors,  the  Member  States  and  the  Commission.  The  Council 
also insisted that it should be left to Member States to decide on which priority customers to 
serve first during a time of gas shortage. These concerns were eventually taken on board in 
the first-reading agreement with the European Parliament in October 2010. 

5. 

CONCLUSIONS 

The  concepts  of  subsidiarity  and  proportionality  are  fundamental  elements  of  the  policy 
development  process of  the EU  Institutions. The subsidiarity  control mechanism of national 
Parliaments, as introduced by the Lisbon Treaty, has made the process more transparent and 
has further enriched the discussions.  

The fact that the majority of Commission proposals have not raised any subsidiarity concerns 
among  national  Parliaments,  and  were  adopted  by  the  legislators  without  major  subsidiarity 
discussions,  indicates  that  subsidiarity  checks  at  an  early  stage  of  the  policy  development 
process  are  generally  effective.  However,  in  a  limited  number  of  cases,  there  has  been  an 
extensive  debate  between  the  European  Parliament  and  the  Council  on  how  subsidiarity 
should  be  interpreted.  Thorough  political  discussions  have  helped  to  find  an  appropriate 
balance between EU and Member State responsibilities. 

46 
47 
48 

Opinion COR/2010/297. 
COM(2008) 817. 
COM(2009) 363. 

EN 

10 

   EN 

 
                                                 
ANNEX  

List of Commission initiatives on which the  
national Parliaments delivered reasoned opinions 
as regards respect of the subsidiarity principle 

Title 

National chambers submitting reasoned49 opinions 

1. 

Seasonal Workers Directive, COM(2010) 
379 

Austrian Nationalrat and Bundesrat 
Czech Senát and Poslanecká sněmovna 
Dutch Eerste Kamer and Tweede Kamer 
Polish Senat 
The United Kingdom House of Commons and House of 
Lords 

2.  Deposit Guarantee Schemes Directive, 

COM(2010) 368 

3. 

Food Distribution to the Most Deprived 
Persons in the Union, COM(2010) 486 

4. 

Support for Rural Development by the 
EAFRD Regulation, COM(2010) 537 

5.  Direct Support Scheme for Farmers, 

COM(2010) 539 

German Bundesrat and Bundestag 
Swedish Riksdag 
Danish Folketinget 
The United Kingdom House of Commons 

The United Kingdom House of Lords 
French Sénat 
Danish Folketinget 
Swedish Riksdag 
Dutch Eerste Kamer and Tweede Kamer 

Polish Sejm and Senat 
Lithuanian Seimas 
The Luxembourg Chambre des Députés 

Polish Sejm and Senat 
Lithuanian Seimas 
The Luxembourg Chambre des Députés 

6. 

7. 

8. 

9. 

Investor Compensation Scheme, 
COM(2010) 371 

Swedish Riksdag 
The United Kingdom House of Commons 

European Heritage Label, COM(2010) 76 

French Sénat 

Frontex Regulation, COM(2010) 61  

Polish Senat  

Translation and Interpretation in Criminal 
Proceedings, COM(2010) 82 

Austrian Bundesrat  

10. 

Imports of Fishery Products from 
Greenland to the EU, COM(2010) 176 

Italian Senato della Repubblica  

11.  Radio Spectrum Policy Programme, 

French Sénat 

COM(2010) 471 

12.  Single European Railway Area, 

The Luxembourg Chambre des Députés 

COM(2010) 475 

49 

These  include  four  opinions  that  arrived  after  the  8  weeks  deadline  or  were  not  adopted  by  the 
respective chambers according to their internal rules. 

EN 

11 

   EN