Subsidiarity in the EU legislative process
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The principles of subsidiarity and proportionality must be complied with in each phase of the EU legislative process. Through the Committee of the Regions, European local and regional authorities can express their views on compliance with these principles during the pre-legislative or legislative phase. Moreover, since Lisbon Treaty entry into force, national parliaments of Member States and the Committee of the Regions are authorised to institute proceedings before the Court of Justice to ensure compliance with the principle of subsidiarity (ex-post judicial monitoring phase). This represents a huge step forward for European local and regional authorities and the Committee of the Regions.
 

PRE-LEGISLATIVE PHASE

Pre-legislative documents mean all preparatory documents (green papers, white papers, communications) published by the European Commission prior to legislative documents.

Improving the regulatory environment

For some years, the European Commission has been working to improve the quality and accessibility of European legislation. This Commission initiative, better known as the better law-making initiative, has contributed to ensuring better compliance with the principles of subsidiarity and proportionality.
 
The Commission has made a commitment to improve and update the "explanatory memoranda" attached to its initiatives, showing that these proposals comply with the principles of subsidiarity and proportionality and perform thorough subsidiarity and proportionality analyses of all policy options in its impact assessment. In addition, within the better regulation strategy, the EU institutions are committed to the reduction of the administrative burdens faced by business and citizens, as well as administrations.
 
The proper application of these principles is intimately linked to the Commission's efforts to optimise Community rules, beginning with impact analyses in the preparatory phase of its initiatives.
 

Innovations in the Treaty of Lisbon

The new Protocol on the application of the principles of subsidiarity and proportionality annexed to the Treaty of Lisbon states that "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" (Article 2 of the protocol on the application of the principles of subsidiarity and proportionality annexed to the Lisbon Treaty).
 
In this respect, the entry into force of the new treaty represents a major innovation for the Committee of the Regions and local and regional authorities. Indeed, this treaty explicitly introduces the local and regional dimension of consultation during the pre-legislative phase.
 

LEGISLATIVE PHASE: EX-ANTE POLICY MONITORING

The Committee of the Regions consultative work : "Opinions"

Under the existing treaties, the Committee of the Regions has the right to issue opinions (be it mandatory or optional referrals or own-initiative opinions) during the legislative phase. In its opinions the Committee takes positions regarding the compatibility of any given pre-legislative or legislative proposal with the subsidiarity and proportionality principles.
 
The Commission has on several occasions underlined the "special role that the Committee plays between the institutions of the Union and the local authorities" as well as the importance that it accords to the Committee's opinions.
 

The Treaty of Lisbon and the early warning mechanism

One of the principal features of the new Protocol on the application of the principles of subsidiarity and proportionality annexed to the Treaty of Lisbon is the introduction of specific monitoring of subsidiarity by national parliaments and the Committee of the Regions.
 
The new protocol opens up the possibility for national parliaments to issue opinions on compliance with the subsidiarity principle by a European draft legislative act. Should a significant number of opinions be issued by national parliaments, the European Commission must reconsider its proposal (early warning mechanism). Depending on the subject matter, the quota of opinions needed for this procedure to be activated is 1/4 or 1/3 national parliaments. Should at least half the quota be filled and the Commission still decide not to change the proposal, the Council and the Parliament must give their views on the matter.
 
It should be pointed out that the protocol takes account of the specific features of Member States' legal orders, stating that "It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers". In other words, sub-national legislative assemblies could be involved in issuing this opinion provided that a specific procedure is established at national level.
 
Although the CoR is not explicitly mentioned in the early warning mechanism laid down in the new Protocol on the application of the principles of subsidiarity and proportionality annexed to the Treaty of Lisbon, in actual fact it already participates in it by means of its opinions on subsidiarity monitoring.
 
Obviously, this prerogative primarily concerns the areas on which the Committee of the Regions must be consulted, specifically:

 

EX-POST JUDICIAL REVIEW: THE ADVANCES OF THE TREATY OF LISBON

The Committee of the Regions and referral to the Court of Justice

In the field of subsidiarity, the Treaty of Lisbon has preserved one of the principal steps forward made by the Treaty establishing a Constitution. The new Protocol on the application of the principles of subsidiarity and proportionality strengthens the Court of Justice's judicial supervision as regards subsidiarity by extending the right to institute proceedings before the Court to national parliaments of Member States and the Committee of the Regions.

This provision is a spectacular, not to say revolutionary, step forward for the Committee of the Regions, since it grants the Committee the right to contest the legality of a Community legislative act by instituting proceedings for annulment.
 
More specifically, there are two rights to institute proceedings:

Firstly, the Committee can institute proceedings before the Court of Justice of the European Communities in order to safeguard the prerogatives allocated to it by the treaty, a right normally reserved for EU institutions (see Article 263(3) TFEU). In other words, the Committee of the Regions could bring proceedings before the Court of Justice if it considers that it has not been consulted when it should have been or when the consultation procedures have not been applied correctly.

The second right to bring proceedings would enable the Committee to ask the Court to ascertain whether a legislative act falling within the Committee's sphere of competence complies with the subsidiarity principle. Thus although the Treaty of Lisbon imposes restrictions on the legislative acts that the Committee may contest before the Court, it does establish the Committee as guarantor for the prerogatives of local and regional authorities.
 

Case-law of the Court concerning the role and impact of the subsidiarity principle

Although the subsidiarity principle has been part of the Union's institutional life for over 15 years, Court of Justice case-law on this subject is quite small. It is unusual for the legality or validity of a Community legislative act to be brought before the Court for failure to comply with the subsidiarity principle, and to date the Court has never had occasion to annul a legislative act on these grounds.

This state of affairs is largely due to self-discipline on the part of the legislator, as well as to the fact that this principle does not really lend itself to judicial supervision.

Extending the right to bring proceedings on these grounds to the Committee of the Regions and national parliaments should further reinforce the binding effect of this principle on the legislator. The first function of this right should be to ensure that the legislator takes account of opinions issued on this point, whether by national parliaments or the Committee of the Regions, during the pre-legislative or legislative phase. The case-law of the Court may also yet evolve on the basis of the new provisions introduced by the Treaty of Lisbon.