CELEX ID: 12016E/PRO/02

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EN
Official Journal of the European Union
C 202/206
PROTOCOL (No 2)
ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY
THE HIGH CONTRACTING PARTIES,
WISHING to ensure that decisions are taken as closely as possible to the citizens of the Union,
RESOLVED to establish the conditions for the application of the principles of subsidiarity and proportionality, as laid down in Article 5 of the Treaty on European Union, and to establish a system for monitoring the application of those principles,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1
Each institution shall ensure constant respect for the principles of subsidiarity and proportionality, as laid down in Article 5 of the Treaty on European Union.
Article 2
Before proposing legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.
Article 3
For the purposes of this Protocol, "draft legislative acts" shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank, for the adoption of a legislative act.
Article 4
The Commission shall forward its draft legislative acts and its amended drafts to national Parliaments at the same time as to the Union legislator.
The European Parliament shall forward its draft legislative acts and its amended drafts to national Parliaments.
The Council shall forward draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments.
Upon adoption, legislative resolutions of the European Parliament and positions of the Council shall be forwarded by them to national Parliaments.
Article 5
Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.
Article 6
Any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers.
If the draft legislative act originates from a group of Member States, the President of the Council shall forward the opinion to the governments of those Member States.
If the draft legislative act originates from the Court of Justice, the European Central Bank or the European Investment Bank, the President of the Council shall forward the opinion to the institution or body concerned.
Article 7
1.   The European Parliament, the Council and the Commission, and, where appropriate, the group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, shall take account of the reasoned opinions issued by national Parliaments or by a chamber of a national Parliament.
Each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote.
2.   Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.
3.   Furthermore, under the ordinary legislative procedure, where reasoned opinions on the non-compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the proposal must be reviewed. After such review, the Commission may decide to maintain, amend or withdraw the proposal.
If it chooses to maintain the proposal, the Commission will have, in a reasoned opinion, to justify why it considers that the proposal complies with the principle of subsidiarity. This reasoned opinion, as well as the reasoned opinions of the national Parliaments, will have to be submitted to the Union legislator, for consideration in the procedure:
(a)
before concluding the first reading, the legislator (the European Parliament and the Council) shall consider whether the legislative proposal is compatible with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national Parliaments as well as the reasoned opinion of the Commission;
(b)
if, by a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration.
Article 8
The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 263 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof.
In accordance with the rules laid down in the said Article, the Committee of the Regions may also bring such actions against legislative acts for the adoption of which the Treaty on the Functioning of the European Union provides that it be consulted.
Article 9
The Commission shall submit each year to the European Council, the European Parliament, the Council and national Parliaments a report on the application of Article 5 of the Treaty on European Union. This annual report shall also be forwarded to the Economic and Social Committee and the Committee of the Regions.

Summary:
The principle of subsidiarity
SUMMARY OF:
Article 5 of the Treaty on European Union – common provisions – principles of subsidiarity and proportionality
Protocol (
No 2
) to the Treaty on the Functioning of the European Union on the application of the principles of subsidiarity and proportionality
Protocol (
No 1
) on the role of national parliaments in the European Union
WHAT IS THE AIM OF THE ARTICLE AND THE PROTOCOLS?
Article 5(3) of the 
Treaty on European Union
 establishes the 
principle of subsidiarity
. This principle is fundamental to the functioning of the 
European Union
 (EU), and more specifically to EU decision-making. In particular, it determines when the EU is competent to legislate. It appears alongside two other principles that are also considered to be essential to European decision-making: the principles of 
conferral
 and 
proportionality
.
The 
Treaty of Lisbon
 revised the principle of subsidiarity (which was initially introduced by the 
Maastricht Treaty
) by introducing 
control mechanisms
 in order to monitor its application: 
Protocol (
No 2
) on the application of the principles of subsidiarity and proportionality
, which also defines the 
implementation
 of the principle of subsidiarity;
Protocol (
No 1
) on the 
role of national parliaments
 in EU decision-making.
KEY POINTS
Definition of subsidiarity
The principle of subsidiarity aims at determining the 
level of intervention
 that is most relevant in the areas of 
competences
 shared between the EU and the EU 
Member States
. This may concern action at the EU, national or local level. In all cases, the EU 
may only intervene
 
if it is able to act more effectively
 than Member States at their respective national or local levels.
Protocol (
No 2
)
 on the application of the principles of subsidiarity and proportionality lays down the following 
three criteria
 aimed at establishing the desirability of intervention at the EU level. 
Does the action have transnational aspects that cannot be resolved by Member States?
Would national action, or an absence of action, be contrary to the requirements of the treaty?
Does action at the EU level have clear advantages?
The principle of subsidiarity also aims at bringing the EU and its citizens closer by guaranteeing that action is taken at the local level where it proves to be necessary.
Complementarity with the principles of conferral and proportionality
Article 5 of the Treaty on European Union defines the 
division of competences
 between the EU and the Member States. It first refers to the principle of conferral, according to which the EU has only those competences that are conferred upon it by the 
treaties
.
Subsidiarity and proportionality are 
corollary principles
 of the principle of conferral. They determine to what extent the EU can exercise the competences conferred upon it by the treaties.
By virtue of the principle of proportionality, the means implemented by the EU in order to meet the objectives set by the treaties cannot go beyond what is necessary.
The EU can therefore only act in a policy area if: 
the action forms 
part of the competences conferred upon the EU
 by the treaties (principle of conferral);
in the context of 
competences shared with Member States
, the EU level is most relevant in order to meet the objectives set by the treaties (principle of subsidiarity);
the 
content and form of the action
 do not exceed what is necessary to achieve the objectives set by the treaties (principle of proportionality).
Monitoring the principle of subsidiarity
The Treaty of Lisbon reformed the above protocol in order to improve and reinforce monitoring.
Mechanisms to monitor the principle of subsidiarity were put in place by 
Protocol (
No 2
)
 on the 
application
 of the principles of subsidiarity and proportionality and by 
Protocol (
No 1
)
 on the 
role of national parliaments
 in the EU.
Protocol (
No 2
)
, originally introduced by the 
Treaty of Amsterdam
, provides for compliance with certain obligations during the actual drafting of legislation. Thus, before proposing legislative acts, except in cases of exceptional urgency, the 
European Commission
 must consult widely and, where appropriate, take into account the regional and local dimensions of the action envisaged. This consultation allows the Commission to collect opinions from national and local institutions and from civil society on the desirability of a 
legislative proposal
, in particular in respect of the principle of subsidiarity.
This protocol also adds an obligation for the Commission to accompany draft legislative acts with a detailed statement demonstrating compliance with the principles of subsidiarity and proportionality.
Under 
Protocol (
No 1
)
, the Treaty of Lisbon adds a further reform by associating national parliaments closely with the monitoring of the principle of subsidiarity. National parliaments exercise twofold monitoring as follows.
They have a right to object when legislation is drafted. They can thus dismiss a legislative proposal before the Commission if they consider that the principle of subsidiarity has not been observed.
They may contest a legislative act before the 
Court of Justice of the European Union
 if they consider that the principle of subsidiarity has not been observed.
The Treaty of Lisbon also associates the 
European Committee of the Regions
 with the monitoring of the principle of subsidiarity. In the same way as national parliaments, the Committee may also contest, before the Court of Justice, a legislative act that does not comply with the principle of subsidiarity.
Every year, the Commission prepares an 
annual report
 on the application of the principles of subsidiarity and proportionality and on relations with national parliaments, and, as part of its implementation of the 
better regulation initiative
, it publishes annual reports on subsidiarity and proportionality.
MAIN DOCUMENTS
Consolidated version of the Treaty on European Union – Title I – Common provisions – Article 
5
 (ex Article 5 TEC) (OJ C 202, 
7.6.2016
, 
p. 18
).
Consolidated version of the Treaty on the Functioning of the European Union – 
Protocol (
No 2
)
 on the application of the principles of subsidiarity and proportionality (OJ C 202, 
7.6.2016
, 
pp. 206–209
).
Consolidated version of the Treaty on the Functioning of the European Union – 
Protocol (
No 1
)
 on the role of national Parliaments in the European Union (OJ C 202, 
7.6.2016
, 
pp. 203–205
).
RELATED DOCUMENTS
Report from the Commission: Annual report 2020 on the application of the principles of subsidiarity and proportionality and on relations with national Parliaments (
COM(2021) 417 final
, 
23.7.2021
).
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: ‘Better regulation for better results – An EU agenda’ (
COM(2015) 215 final
, 
19.5.2015
).
last update 
17.5.2024

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