18th report on better legislation – Application of the principles of subsidiarity and proportionality (2010) European Parliament resolution of 13 September 2012 on the 18th report on Better legislation - Application of the principles of subsidiarity and proportionality (2010) (2011/2276(INI))
Date: 2012-09-13
Institutions: Committee on Constitutional Affairs, Committee on Legal Affairs, European Parliament
Subjects: drafting of EU law, national parliament, principle of proportionality, principle of subsidiarity








CE2013353EN.01011701.xml










3.12.2013   


EN


Official Journal of the European Union


CE 353/117





Thursday 13 September 201218th report on better legislation – Application of the principles of subsidiarity and proportionality (2010)
P7_TA(2012)0340
European Parliament resolution of 13 September 2012 on the 18th report on Better legislation - Application of the principles of subsidiarity and proportionality (2010) (2011/2276(INI))
2013/C 353 E/14

The European Parliament,






—


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










—


having regard to the Joint Political Declaration of the Member States and the Commission of 28 September 2011 on explanatory documents (2),










—


having regard to the Joint Political Declaration of the European Parliament, the Council and the Commission of 27 October 2011 on explanatory documents (3),










—


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










—


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










—


having regard to its resolution of 14 September 2011 on the twenty-seventh annual report on monitoring the application of European Union law (5),










—


having regard to its resolution of 8 June 2011 on guaranteeing independent impact assessments (6),










—


having regard to the Commission report on subsidiarity and proportionality (18th report on Better Lawmaking covering the year 2010) (COM(2011)0344),










—


having regard to the Commission report on minimising regulatory burdens for SMEs - Adapting EU regulation to the needs of micro-enterprises (COM(2011)0803),










—


having regard to the Commission communication on the 28th annual report on monitoring the application of EU law (2010) (COM(2011)0588),










—


having regard to the Commission communication on Smart Regulation in the European Union (COM(2010)0543),










—


having regard to the conclusions of the Competitiveness Council of 5 December 2011 on impact assessment,










—


having regard to the conclusions of the Competitiveness Council of 30 May 2011 on smart regulation,










—


having regard to the report of 15 November 2011 of the High Level Group of Independent Stakeholders on Administrative Burdens, entitled ‘Europe can do better: Report on the best practices in the Member States to implement EU legislation in the least burdensome way’,










—


having regard to Rule 48 of its Rules of Procedure,










—


having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on Constitutional Affairs (A7-0251/2012),










A.


whereas in 2010 the European Parliament received more than seven times as many contributions as reasoned opinions from national parliaments;










B.


whereas the smart regulation agenda constitutes an attempt to consolidate efforts in terms of better lawmaking, simplification of EU law and the reduction of administrative and regulatory burdens, and to embark on a path towards good governance based on evidence-based policymaking in which impact assessments and ex post controls play an essential role;










C.


whereas the Interinstitutional Agreement on better lawmaking of 2003 has become ill-suited to the current legislative environment as created by the Treaty of Lisbon, not least in view of the piecemeal approach taken by the EU institutions in terms of adopting joint political declarations on explanatory documents and secretariat-level practical arrangements for the implementation of Article 294 TFEU;










D.


whereas an incorrect choice between using delegated acts under Article 290 TFEU or implementing acts under Article 291 TFEU in a legislative act subjects it to the risk of being annulled by the Court of Justice;






General comments








1.


Underlines the overarching need for legislation to be clear, simple, easy to understand and accessible to all;










2.


Stresses that the principles of subsidiarity and proportionality must be respected by the European institutions when legislating;










3.


Expresses its deep concern regarding the Impact Assessment Board’s view that the Commission’s consideration of these principles in its impact assessments are is often unsatisfactory in nature; considers it of the utmost importance that the Commission address any deficiencies in this area in order to ensure that these principles are respected;










4.


Reiterates its repeated calls for the 2003 Interinstitutional Agreement on Better Lawmaking to be renegotiated in order to take account of the new legislative environment created by the Treaty of Lisbon, consolidate current best practice and bring the agreement up to date in line with the smart regulation agenda; suggests that arrangements concerning the demarcation between delegated and implementing acts be agreed in that context; asks its President to take the necessary steps to open negotiations with the other institutions;






Subsidiarity control by national parliaments








5.


Welcomes the closer involvement of the national parliaments in the European legislative process, particularly with regard to scrutinising legislative proposals in the light of the principles of subsidiarity and proportionality;










6.


Notes that in 2010 211 opinions were received from national parliaments but that only a small number of them – 34 in all – raised subsidiarity concerns; points out that the conditions of Article 2, first sentence, of the Protocol on the application of the principles of subsidiarity and proportionality were fulfilled for the first time in May 2012 in connection with the proposal for a Council regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services (COM(2012)0130); calls on the Commission, in this connection, to carry out the necessary review of the draft with the utmost regard for the express will of the national parliaments, as the new scrutinising procedure is intended to ensure that decisions are taken as closely to the citizens as possible;










7.


Calls for an independent analysis to be carried out on behalf of the Commission to examine the role of regional or local parliaments in the area of subsidiarity controls; points, in this context, to the IPEX internet platform, financed by the European Parliament and national parliaments, which is particularly helpful for exchanging information in connection with the scrutinising procedures;










8.


Suggests that the institutions involved in lawmaking should be reminded of the need to ensure that the principles of subsidiarity and proportionality are correctly applied under the terms of Protocol No 2 annexed to the Treaty on the Functioning of the European Union;










9.


Notes that the criticism made by the Impact Assessment Board concerning consideration of subsidiarity was also made by a number of national parliaments in their submissions under the subsidiarity control mechanism introduced in the Treaty of Lisbon; further notes, however, that on no occasion in 2010 was the threshold for activating the formal procedures under Protocol No 2, as annexed to the Treaties, reached;










10.


Notes, however, that on 22 May 2012, for the first time since the entry into force of the Lisbon Treaty, national parliaments triggered the ‘yellow card’ procedure by adopting reasoned opinions opposing the Commission proposal for a Council regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services (COM(2012)0130);










11.


Notes with concern that some opinions from national parliaments highlight the fact that in a number of Commission proposals the subsidiarity justification is insufficient or non-existent;










12.


Highlights the need for the European institutions to make it possible for national parliaments to scrutinise legislative proposals by ensuring that the Commission provides detailed and comprehensive grounds for its decisions on subsidiarity and proportionality, in accordance with Article 5 of Protocol No 2 to the Treaty on the Functioning of the European Union (TFEU);










13.


Suggests that an assessment be made to determine whether appropriate criteria should be laid down at EU level for evaluating compliance with the principles of subsidiarity and proportionality;










14.


Considers that the current timescales laid down in the Treaties for national parliaments to carry out subsidiarity checks should be reviewed to determine whether they are sufficient; suggests that the EP, the Commission and representatives of the national parliaments investigate how any impediments to national parliaments’ participation in the subsidiarity control mechanism might be alleviated;










15.


Recalls that, in accordance with the principle of subsidiarity, the EU shall take action outside its areas of exclusive competence only and insofar as the objectives of a planned measure can be better achieved at Union level than at national, regional or local level; subsidiarity may, therefore, lead both to an extension of the activities of the Union within the framework of its powers when circumstances so require and, conversely, to the action concerned being restricted or curtailed where it is no longer justified; emphasises that subsidiarity, in this context, not only applies to the relationship between the EU and its Member States but also encompasses the regional and local levels;










16.


Urges the Commission to improve and regularise the statements which justify its legislative initiatives on the grounds of subsidiarity; recalls that EU administrative law should be adjusted and simplified in order to reduce administrative and regulatory costs; considers that, in this context, the principles of subsidiarity and proportionality should be applied accordingly;










17.


Regrets that the Commission has not properly reported on the application of the principle of proportionality, especially with regard to the use of Articles 290 and 291 TFEU on delegated and implementing acts; warns the Council not to blur the clear distinction between delegated and implementing acts; urges the Commission to ensure the proper application of these two articles;










18.


Recognises that there has been only one judgment by the European Court of Justice on proportionality and subsidiarity in the reporting period (on ‘roaming’ in mobile telephony), noting that the Court found that there was no breach of either of those two principles in that case, since it was necessary to limit prices for final consumers in order to protect their interests, and as this objective was best achieved at Union level;










19.


Welcomes, in this regard, the introduction of the above-mentioned revised IPEX website, which can act as a catalyst for further improvements and engagement in the operation of the subsidiarity control mechanism, and stresses the need to promote this site further;










20.


Emphasises that it is essential for scrutiny of the principle of subsidiarity to extend to the regional and local levels in the Member States; welcomes, in this regard, the Subsidiarity Annual Report published by the Committee of the Regions and the REGPEX website set up by the Committee, both of which assist the exchange of information and will make for further improvements in the monitoring of subsidiarity;










21.


Calls on the national parliaments, in accordance with the Subsidiarity Protocol, to consult the regional parliaments with legislative powers; calls on the Commission, in the scrutiny of subsidiarity and particularly in its annual reports on subsidiarity and proportionality, to pay attention to the role of the regional parliaments with legislative powers;






Evidence-based policymaking








22.


Stresses the importance of the smart regulation agenda and of developing new regulatory approaches in order to ensure that EU legislation is fit for its purpose and can effectively contribute to facing future challenges of competitiveness and growth;










23.


Notes the crucial importance of impact assessments as tools for aiding decision-making in the legislative process, and stresses the need, in this context, for proper consideration to be given to issues relating to subsidiarity and proportionality;










24.


Emphasises Parliament’s commitment to its obligations under the smart regulation agenda, and encourages use of Parliament’s Impact Assessment Directorate by committees engaging in legislative work as a matter of routine; recalls the commitment made by Parliament and Council in the 2005 Interinstitutional Common Approach to Impact Assessment to carry out impact assessments prior to the adoption of substantive amendments, and calls on the committees to make use of the new Impact Assessment Directorate in implementing this commitment;










25.


Suggests that as part of a more systematic approach to the consideration of impact assessments within Parliament, the Impact Assessment Directorate should be asked by committees to prepare a short summary of each impact assessment for consideration when an initial exchange of views is held; suggests that this summary could include a brief conclusion as to the quality of the impact assessment, together with a short note on the key findings and any areas of analysis omitted by the Commission; is of the view that this would greatly enhance the scrutiny of draft legislation by Parliament;










26.


Considers it essential that the methodologies applied by the Impact Assessment Directorate are compatible and comparable with the approach adopted by the Commission, and calls on Parliament and the Commission to cooperate fully in this regard;










27.


Recalls the 2003 Interinstitutional Agreement on Better Lawmaking, and encourages the Council to complete work on establishing its own mechanism for undertaking impact assessments without undue delay, in compliance with its obligations under the 2003 agreement;










28.


Encourages the Commission to continue improving its own approach to impact assessments, and calls on it to strengthen the role of the Impact Assessment Board and, in particular, only to finalise and present legislative proposals where they have been approved with a favourable opinion from the Board;






Minimising regulatory burdens








29.


Welcomes the Commission’s communication on minimising regulatory burdens for SMEs; considers it essential that the Commission respects the ‘think small first’ principle when preparing legislation, and is encouraged by the commitment shown by the Commission and its desire to go beyond present approaches and introduce lighter regimes and exemptions for smaller businesses;










30.


Recalls Parliament’s position on the issue of regulatory exemptions, and urges the Commission to extend exemption to SMEs where regulatory provisions would disproportionately affect them and there is no sound reason for including them in the scope of the legislation; welcomes the renewed focus on a robust application of the SME test, and sees the micro-dimension as an inherent part of that test in which all available options are systematically assessed; in this regard welcomes the Commission’s position regarding inclusion of micro-entities, which should only be included to the full extent in the scope of draft legislation if they satisfy the strengthened SME test;










31.


Reminds the Commission, however, that the reversal of the burden of proof should not automatically lead to more complex legislation which has been developed without SMEs in mind; calls on the Commission to strive for the simplification of legislation wherever possible, and to continue to prepare and present proposals with accessibility and ease of implementation for SMEs as guiding principles in the drafting of legislation, even where an exemption may apply;










32.


Stresses the need for the Commission to ensure consistent application of the enhanced SME test across its directorates, and calls on Member States to include similar considerations in their national decision-making processes;










33.


Welcomes the ‘tailor-made’ approach to legislation proposed by the Commission; calls for consideration to be given to possible future application of ‘tailor-made’ approaches when existing legislation is reviewed;






Follow-up, ex post controls and feedback into the policymaking cycle








34.


Welcomes the Commission’s adoption of Parliament’s recommendation on publication of information concerning implementation, thus addressing the problem of ‘gold-plating’; reminds the Commission and the Council that in order to ensure that existing and future programmes to reduce burdens are successful, active cooperation between the Commission and the Member States is necessary, so as to avoid discrepancies in the interpretation and implementation of legislation; urges Member States to reduce their administrative burden by a further 25 % by 2015;










35.


Considers the proposals to ‘name and shame’ European institutions which backtrack on simplification to be well-intentioned; believes, however, that a more constructive engagement in the pre-legislative process with relevant stakeholders and the institutions, together with adherence to the general commitments to simplification and the smart regulation agenda, would render such publicity unnecessary; suggests, nonetheless, that those Member States which engage the most in the ‘gold-plating’ of directives should be named, alongside those which are the biggest offenders when it comes to late, imprecise or incomplete transposition of EU law;










36.


Recalls its previous statements concerning the need for a comprehensive review of the consultation process undertaken by the Commission, and looks forward to the Commission adopting Parliament’s recommendations in this area before the end of 2012;






Ensuring continuity and vigilance








37.


Underlines the importance of these measures as a key element for renewed economic growth in the EU; recalls, in this regard, its resolution on smart regulation, and invites the Commission to put forward proposals implementing regulatory offsetting, which would require equivalent cost offsets to be identified in advance of new legislation that would introduce costs being imposed; recalls, furthermore, its position in favour of extending and expanding the scope of the Administrative Burden Reduction Programme, and urges the Commission to introduce, in its 2013 Work Programme, a programme which addresses the need to reduce the overall regulatory burden;




*
* *






38.


Instructs its President to forward this resolution to the Council, the Commission and the national parliaments.






(1)  OJ C 321, 31.12.2003, p. 1.

(2)  OJ C 369, 17.12.2011, p. 14.

(3)  OJ C 369, 17.12.2011, p. 15.

(4)  Texts adopted, P7_TA(2011)0381.

(5)  Texts adopted, P7_TA(2011)0377.

(6)  Texts adopted, P7_TA(2011)0259.