11 December 2015

While the key points of the UK’s EU reform agenda are relatively clear in Prime Minister David Cameron’s letter to Council President Donald Tusk, there are also a few additional areas which are mentioned and leave scope for further action to be taken.

Third, I want to see the EU’s commitments to subsidiarity fully implemented with clear proposals to achieve that. As the Dutch have said, the ambition should be ‘Europe where necessary, national where possible’.

As the quote above shows one such area is the review and enforcement of the principle of subsidiarity. As a reminder, ‘subsidiarity’ is technical jargon for the idea that decisions should be taken as close to the citizen as possible. In the EU context this means things should be done at the national and local level as much as possible and only at the EU level when needed. Sufficed to say, this is not always the case and the application of the principle could do with being vastly improved.

However, so far the demand put forward in Cameron’s letter remains incredibly vague and could mean any number of things. Below we have outlined a few potential ideas for how to better implement and enforce subsidiarity. These come with pluses and minuses, while some are more feasible than others. But if this part of Cameron’s letter is to mean anything, then he may want to pick up one or more of the ideas below.

Subsidiarity Watchdog/Taskforce

Ahead of the 2002 EU Treaty Convention, the UK proposed a political ‘subsidiarity watchdog’, manned by an MP from each member state. This organisation would supervise the Commission to ensure that legislative proposals do not overstep the bounds and could not be better handled at the national level. This would introduce an ex-ante check rather than ex-post ones we have now, by which point a lot of time and money as well as political capital has already been invested in a piece of legislation. This could also take a more pro-active approach, searching out areas of concern which could be better handled nationally.

Subsidiarity Court

Similar principle to the above but it would be a new court formed of national constitutional judges from each member state. This independent court (formed of practicing constitutional judges not political appointment as with the European Court of Justice) would judge whether any legislation breaches subsidiarity. It could either investigate every proposal or choose specific ones to pass judgement on. Alternatively member states or individuals could bring cases in front of the court where subsidiarity is believed to have been breached. The court does not necessarily need to be permanent – in fact this may risk it being co-opted into the EU institutional mind-set – but one that is convened when a breach of subsidiary is claimed.

Subsidiarity Commissioner

In the new European Commission, Vice President Frans Timmermans already plays this role to an extent but this could be made more explicit or given to someone as a singular role. Their role would be to police and enforce subsidiarity within the Commission and make sure that all legislative proposals respect it. Additionally, they could lead a review of existing rules from this perspective. This is something which Open Europe proposed in its mandate for the new Commission last year.

Interinstitutional Agreement on subsidiarity

Have an agreement between the European Council, Commission and Parliament on some key areas which are national competencies and on which they will not regulate (at least not for the foreseeable future).

Annual Subsidiarity review by member states

Member states would annually:

  • Review existing legislation – check to see if body of EU legislations fits with subsidiarity, any issues better handled nationally should be done so.
  • Reviewing proposals/pipeline legislation – examine proposed legislation to check it respects subsidiarity.
  • Draw lines on what should be considered national – set out lines of key principles which should remain national, drawing lines which EU legislation should not cross.

This could be modelled on a similar process conducted in the Netherlands in 2013. Though as the UK’s own Balance of Competences review highlighted, for such an exercise to actually be useful it must be willing to draw some conclusions and actually have the means to follow these through.

More emphasis on subsidiarity in Impact Assessments

While subsidiarity concerns/reviews should already be included in impact assessments (IAs), they need to be made a bigger part of the process. All member states should feed into this during the consultation phase. This could also be combined with other improvements to Impact Assessments such as the creation of an independent Impact Assessment Board (IAB), which is already underway. Part of the IAB’s job could be to ensure that IAs have properly considered the subsidiarity points and judge whether they have been sufficiently covered to justify the piece of legislation.

Final subsidiarity review

The last stage before a piece of legislation is approved could be a review of the core principles of subsidiarity and proportionality to make sure that, even if the legislation has changed significantly during negotiations (as is often the case) it still respects these core principles. This mechanism is similar to proposals for a ‘late card’ where the Council or national parliaments can reassess a law before it gets final approval.

Better institutional coordination and subsidiarity focus in annual work programme

Give the European Council/Council of Ministers and national parliaments greater input into the Commission’s work programme with a focus on issues which they believe need to be handled at the European level and ones which can be handled at national level.

Review rules underpinning any European Court of Justice (ECJ) judgements if states do not agree

Part of the problem is the interpretation of law by the ECJ, especially where there is uncertainty. There could be a mechanism for reviewing underlying rules if the ECJ passes a judgement which may shift the meaning of legislation and the boundaries of what is done at the EU level. This could be an automatic process or be triggered by a request from a member state. The new President of the ECJ, recently highlighted in an interview that the Court sees its role as, at least partially, filling in the details and interpreting the vague aims of the politicians. A check on this role should be the absolute minimum from the subsidiarity perspective, but as we noted those comments were concerning for a whole host of reasons.

Review legal base of legislation

A mechanism to review the legal base of legislation to ensure it does not transfer new powers to the EU under the wrong legal base and possibly one that involves different voting procedures. This could take the form of an emergency brake in the Council if one or a group of member states expressed concerns around the legal base of a specific piece of legislation. We saw many concerns in this area around the creation of the Banking Union and now once again on the related issue of the European Deposit Insurance Scheme.