COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the documents REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL for a Single Market Emergency Instrument REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulations (EU) 2016/424, (EU) 2016/425, (EU) 2016/426, (EU) 2019/1009 and (EU) No 305/2011 as regards emergency procedures for the conformity assessment,adoption of common specifications and market surveillance due to a Single Market emergency and DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directives 2000/14/EC, 2006/42/EC, 2010/35/EU, 2013/29/EU, 2014/28/EU, 2014/29/EU, 2014/30/EU, 2014/31/EU, 2014/32/EU, 2014/33/EU, 2014/34/EU, 2014/35/EU, 2014/53/EU and 2014/68/EU as regard emergency procedures for the conformity assessment, adoption of common specifications and market surveillance due to a Single Market emergency
Date: 2022-09-19
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: EC conformity marking, crisis management, free movement of goods, free movement of persons, freedom to provide services, goods and services, market approval, market supervision, security of supply, single market

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  EN 

   EUROPEAN COMMISSION  Brussels, 19.9.2022  SWD(2022) 288 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the documents REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL for a Single Market Emergency Instrument    REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL    amending Regulations (EU) 2016/424, (EU) 2016/425, (EU) 2016/426, (EU) 2019/1009 and (EU) No 305/2011 as regards emergency procedures for the conformity assessment,adoption of common specifications and market surveillance due to a Single Market emergency    and DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL    amending Directives 2000/14/EC, 2006/42/EC, 2010/35/EU, 2013/29/EU, 2014/28/EU, 2014/29/EU, 2014/30/EU, 2014/31/EU, 2014/32/EU, 2014/33/EU, 2014/34/EU, 2014/35/EU, 2014/53/EU and 2014/68/EU as regard emergency procedures for the conformity assessment, adoption of common specifications and market surveillance due to a Single Market emergency {COM(2022) 459 final} - {SEC(2022) 323 final} - {SWD(2022) 289 final} - {SWD(2022) 290 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

The proposal is based on Article 114 of the Treaty on the Functioning of the European Union. Within 
the  context  of  a  crisis,  the  Single  Market  can  be  impacted  both  by  the  appearance  of  the  specific 
disruptions and shortages inherent to the said crisis, as well as by the possible intra-EU restrictions to 
the free movement of goods, services and persons, which may emerge in an attempt to address the 
said  crisis.  The  general  objective  of  the  initiative  is  to  lay  down  the  mechanisms  and  procedures, 
which  would  allow  to  prepare  for  and  to  address  potential  crises  and  disruptions  to  the  proper 
functioning of the Single Market. Such measures are also aimed to minimise the intra-EU obstacles to 
the free movement in times of crisis. More specifically, in the case of a crisis, the measures have to 
be taken to address any identified shortages and to safeguard the availability of crisis-critical goods 
and services across the entire EU. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

The Union’s competence is shared. 

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article  3  TFEU1.  It  is  the  specific  legal  basis  which  determines  whether  the  proposal  falls  under  the 
subsidiarity  control  mechanism.  Article  4  TFEU2  sets  out  the  areas  where  competence  is  shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

As  outlined  in  Annex  2  to  the  Impact  Assessment  accompanying  this  proposal,  stakeholder 
consultation  activities  were  conducted  between  October  2021  and  May  2022.  The  consultation 
activities  included:  a  call  for  evidence  published  on  the  “Have  your  say”  portal  and  open  from  13 
April  to  11  May  2022,  a  public  consultation  conducted  via  a  questionnaire  published  on  the  same 
portal for the same dates, a stakeholder workshop on 6 May 2022, a Member State survey in May 
2022 and targeted consultations conducted by means of meetings with Member States and specific 
stakeholders. 

The explanatory memorandum and the impact assessment (Section 3) contain a section on the 
principle of subsidiarity, see question 2.2 below. 

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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principle of subsidiarity? 

The  principle  of  subsidiarity  is  addressed  in  Section  3  of  the  impact  assessment  and  in  the 
explanatory memorandum accompanying the proposal. 

The  economic  activities  across  the  Single  Market  are  deeply  integrated.  Interaction  between 
companies,  service  providers,  clients,  consumers  and  workers  located  in  different  Member  States 
that rely on their free movement rights, is increasingly common. The experience of the past crisis has 
shown that often the distribution of production capacities across the EU is uneven. In parallel, in the 
case of a crisis, the demand for crisis-relevant goods or services across the EU territory may also be 
uneven.  The  objective  of  ensuring  the  smooth  and  undisrupted  functioning  of  the  Single  Market 
cannot be achieved by means of unilateral national measures. Moreover, even if measures adopted 
by  the  Member  States  individually  may  be  able  to  address  to  a  certain  extent  the  deficiencies 
resulting from a crisis at the national level, they are in fact more likely to further exacerbate the said 
crisis  across  the  EU  by  adding  further  obstacles  to  the  free  movement  and/or  additional  strain  on 
products already impacted by shortages. 

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

The objectives of this Regulation cannot be sufficiently achieved by the Member States, by reason of 
the EU-wide nature of the problem addressed. Thus, the objectives can be better achieved at Union 
level, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European 
Union. 

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

The  purpose  of  the  initiative  is  to  provide  immediate  solutions  to  ensure  that  the  Single  Market 
works as it should during crises. Recent crises have demonstrated how fragile the Single Market can 
be in case of unforeseen disruptions and at the same time, how much the European economy and all 
its stakeholders rely on a well-functioning Single Market. The impact of a crisis on the Single Market 
can be two-fold. On the one hand, a crisis can lead to the appearance of obstacles to free movement 
within  the  Single  Market,  thus  disrupting  its  normal  functioning.  On  the  other  hand,  a  crisis  can 
amplify the shortages of crisis-relevant goods and services if the Single Market is fragmented and is 
not functioning. The problems tackled are inherently of a transnational/cross-border nature. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty5 or significantly damage the interests of other Member States? 

Lack of an EU-wide framework and the absence of a Union initiative coordinating the actions at 
national level would compromise the attainment of the overall objective of ensuring the functioning 
of the Single Market during crises. 

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

While Member States can enact national crisis response measures, the objective of ensuring the 
functioning of the Single Market during crises is best achieved at the Union level. 

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

5 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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across the national, regional and local levels of the EU? 

Easing free movement of persons will have a significant social impact on cross-border workers and 
their communities, by providing better opportunities to maintain their social connections. Outermost 
regions can be disproportionately affected by obstacles to free movement, worsening the economic 
and social situation of vulnerable communities, therefore less obstacles to free movement will result 
in better social outcomes for outermost regions. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

When the Single Market does not work as it should, it affects all Member States as all Member States 
form part of the Single Market. 

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No. The proposal is based on an in-depth assessment of different policy options and their respective 
impacts.  As  analysed  in  detail  in  the  impact  assessment,  Member  States  will  incur  recurrent  costs 
linked  to  the  Advisory  Group  meetings  and  specific  costs  during  vigilance  and  emergency  modes 
linked  to  specific  measures  activated  in  those  modes.  These  costs  would  be  proportionate  to  the 
objectives being achieved. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

in  facing  emergency  situations. 

The European Council in its Conclusions of 1-2 October 2020 stated that the EU will draw the lessons 
from the COVID-19 pandemic and address remaining fragmentation, barriers and weaknesses of the 
Single  Market 
Industrial  Strategy 
Communication, the Commission announced an instrument to ensure the free movement of persons, 
goods and services, as well as greater transparency and coordination in times of crisis. The European 
Parliament welcomed the Commission’s plan to present a Single Market Emergency Instrument and 
called  on  the  Commission  to  develop  it  as  a  legally  binding  structural  tool  to  ensure  the  free 
movement  of  persons,  goods  and  services  in  case  of  future  crises.  In  the  framework  of  the 
consultation  activities,  Member  States  including  national,  regional  and  local  authorities  have 
expressed support for the proposal. 

In  the  Update  of  the 

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

The  general  objective  to  enhance  the  Single  Market’s  vigilance  for,  response  to  and  its  smooth 
functioning in times of crisis can be best achieved at Union level. The economic activities across the 
Single  Market  are  deeply  integrated  and  the  objective  of  ensuring  the  smooth  and  undisrupted 
functioning of the Single Market cannot be achieved by means of unilateral national measures. 

(a)  Are there clear benefits from EU level action?  

Yes, as the economic activities across the Single Market are deeply integrated and the objective of 
ensuring the smooth and undisrupted functioning of the Single Market cannot be achieved by means 
of unilateral national measures. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

Yes,  the  objective  of  the  proposal  is  to  enhance  the  functioning  of  the  Single  Market  and  this 
objective can be met more efficiently at EU level. 

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(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

The general objective of the proposal is to enhance the Single Market’s vigilance for, response to and 
its smooth functioning in times of crisis. To this end, it will equip the EU with a well-calibrated crisis 
toolbox that permits a rapid and effective response to any future crisis that threatens to hamper the 
functioning  of  the  Single Market,  complementing other  existing  EU mechanisms,  including  through 
better  coordination,  transparency  and  speed.  The  objective  is to  strengthen  the  functioning of  the 
Single Market and provide quick and practical solutions to issues of free movement of goods, services 
and persons and of supply in times of crisis. 

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

Yes,  as  the  objective  of  ensuring  the  smooth  and  undisrupted  functioning  of  the  Single  Market 
cannot be achieved by means of unilateral national measures. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes, as it is a new measure applying to the whole  Single Market. It will provide a clear governance 
structure  with  the  Single  Market  as  its  focus  and  it  will  provide  greater  legal  clarity  for  those 
implementing it. 

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

The  proposal  complies  with  the  proportionality  principle  because  it  does  not  go  beyond  what  is 
necessary  in  order  to  achieve  the  objective  of  ensuring  the  good  functioning  of  the  Single  Market 
during  crises.  The  emergency  instrument  would  only  be  deployed  with  the  objective  of  ensuring  a 
coordinated approach to respond to crises that have important cross-border effects and threaten the 
functioning of the Single Market, and where no EU instrument already exists or where the existing 
instruments  do  not  lay  down  crisis-relevant  provisions.  Putting  in  place  contingency  and  vigilance 
measures  across the  Single  Market can facilitate the coordination of the response  measures in the 
case  of  a  crisis.  Furthermore,  such  measures  can  be  complemented  by  effective  and  efficient 
coordination and cooperation amongst the Commission and Member States during the crisis in order 
to  ensure  that  the  most  appropriate  measures  to  address  the  crisis  are  taken.  The  toolbox  of 
targeted EU-level measures would be proportionately used in response to a specific crisis. Prior risk 
assessment, based on a well-defined set of criteria and involving closely the Member States, will be 
systematically conducted before specific measures are deployed at EU level. The various tools may 
be  activated  and  deployed  by  themselves  or  in  different  combinations  depending  on  the  specific 
emergency circumstances. 

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

The proposal addresses the objectives of the initiative and does not go beyond what is necessary to 
ensure the resilience and functioning of the Single Market in times of crisis. 

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(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

Yes.  The  EU  added value of this  instrument  would be  to  lay  down  the  mechanisms for  a  swift  and 
structured  way of  communication  between  the  Commission  and  Member  States,  coordination  and 
information exchange when the Single Market is put under strain, and to be able to take necessary 
measures  in a transparent way  –  speeding up existing mechanisms as well as adding new targeted 
tools for emergency situations. It will also ensure transparency across the internal market, ensuring 
that  businesses  and  citizens  that  rely  on  their  free  movement  rights  have  at  their  disposal 
appropriate information about the applicable measures across all the Member States.  

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

The Single Market Emergency Instrument initiative takes the form of a Proposal for a Regulation of 
the European Parliament and of the Council. Considering that in the case of provisions laid down in a 
Regulation, there is no need for the Member States to transpose them into their respective national 
legislation, this specific legal instrument would allow to ensure that the provisions are  applied in a 
consistent  manner.  The  proposed  Regulation  will  introduce  procedures  which  are  complementary 
the  Single  Market  Transparency  Directive  or  the  Services  Directive  and  are  to  be  applied  in  the 
emergency  mode.  The  Regulation  clarifies  the  relationship  between  the  relevant  legal  frameworks 
but without amending the respective legal frameworks. 

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

The  Single  Market  Emergency  Instrument  is  not  intended  to  lay  down  a  detailed  set  of  EU  level 
provisions  which  should  be  exclusively  relied  upon  in  the  case  of  crisis.  Instead,  the  instrument  is 
intended  to  lay  down  and  ensure  the  coherent  application  of  possible  combinations  between 
provisions  taken  at  EU  level  together  with  rules  on the  coordination of  the measures  taken  at  the 
level of the Member States. In this respect, the emergency measures which may be taken at EU level 
on the basis of the Single Market Emergency Instrument would be coordinated with and complement 
the  emergency  response  measures  adopted  by  the  Member  States.  In  order  to  allow  for  such 
coordination and complementarity, the Single Market Emergency Instrument would set out specific 
measures which the Member States should refrain from imposing once a Single Market emergency 
has been activated at EU level. 

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The  costs  are  detailed  in  Section  6  of  the  impact  assessment.  The  Single  Market  Emergency 
Instrument provides a toolbox of measures to address Single Market emergency, consisting of a set 
of  measures  applicable  at  all  times  as  well  as  certain  measures  only  applicable  in  vigilance  or 
emergency modes, to be separately activated. There are no administrative costs for businesses and 
citizens  that  would  apply  with  immediate  effect  and  during  the  normal  functioning  of  the  Single 
Market.  The  measures  foreseen  in  the  emergency  and  vigilance  modes  would  be  used  in  very 
exceptional circumstances. Their initiation would be subject to conditions and a triggering procedure 
upon the advice of the governance body. Some of these measures could lead to costs for businesses. 

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Member  States will  incur  recurrent  costs  linked  to  the  Advisory  Group  meetings  and  specific  costs 
during vigilance and emergency modes linked to specific measures activated in those modes. For the 
Union, the costs related to the proposal fall under three categories. The recurrent costs, which derive 
from human resources within the Commission for training activities and the necessary extension of 
the IT tool for the  notification system, would be  covered either under the heading “Administrative 
costs” or under the Single Market Programme. The costs related to procurement would not imply an 
impact on the EU budget, as they would be born entirely by the Member States. The costs related to 
the occurrence of a crisis would be covered either under the heading “Administrative  costs” or via 
internal redeployment of Union resources. 

(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

Yes, as part of the impact assessment the Commission analysis reflected, to the extent possible, the 
economic and industrial circumstances of individual Member States, taking into account their views 
collected via the consultation activities, including targeted consultations and the Member States’ 
survey. 

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