The subsidiarity issue is a key feature of the renegotiation package. However, subsidiarity is a con trick, it has never worked and it will never work. It has failed to protect the capacity of the member states to take decisions as well as to protect national Parliaments and electorates from supranational legislation, which is only possible by introducing a unilateral veto over EU legislative proposals.
Under the subsidiarity principle, as defined by Article 5 TEU, the EU shall not take action unless it is more effective than action taken at national, regional or local level. This principle governs the exercise of the EU’s competences in areas of shared competence between the EU and the Member States, which are all areas where Member States are only allowed to adopt legislation if the EU has not exercised its competence, entailing therefore primacy of EU’s activities over those of national parliaments, whereas the areas of the EU exclusive competence are areas that national Parliaments have already been prevented to legislate. There are, in fact, many areas of policy making that are regulated by EU law and within the jurisdiction of the European Court of Justice, in which Westminster is forbidden from legislating.
The Protocol on the application of the principles of subsidiarity and proportionality requires the EU institutions to ensure respect for these principles. However, they enjoy wide discretion in their application, and the Commission has always managed to argue that the aim of a legislative proposal is better achieved at EU rather than national level, which does not mean that the subsidiarity principle is complied with. In fact, the Commission has been proposing EU legislation with total disregard to this principle and there are no examples of its direct application. Moreover, the CJEU has never struck down EU legislation on subsidiarity grounds. In fact, the Court jurisprudence, all these years, clearly show us that it most of the time rules in favour of the EU and further integration at expense of subsidiarity and, obviously, national parliaments.
David Cameron wants “to see the EU’s commitments to subsidiarity fully implemented, with clear proposals to achieve that.” There is indeed a general endorsement, among the other member states, of the idea of enforcing the principle of subsidiarity. The EU leaders said in June 2014 “In line with the principles of subsidiarity and proportionality, the Union must concentrate its action on areas where it makes a real difference” and “It should refrain from taking action when member states can better achieve the same objectives.” However, this is a deceit, as the principles of subsidiarity will continue to determine what should be done at EU and national level.
The Juncker’s Commission said that the subsidiarity principle is at the heart of its work and pledged to ensure that every proposal complies with this principle. It is therefore important to recall that in 2011, the House of Commons, and 7 other national Parliaments, issued reasoned opinions stating that the draft directive on a common consolidated corporate tax base did not comply with the principle of subsidiarity. This proposal has not reached the required unanimity in the Council but the Juncker’s Commission is set to put forward a new proposal for a mandatory CCCTB, despite national Parliaments being exclusively responsible for direct taxation. Yet, they said that the new proposal is in line with the principle of subsidiarity, which reveals that the Juncker’s Commission commitment to this principle is very limited.
The Commission has also been contradicting the principle of subsidiarity by saying that the European Parliament is the only Parliament for the EU.
Moreover, it is important to note that there is no objective way to define if a measure falls under the principle of subsidiarity. The CJEU has jurisdiction to hear actions for judicial review on grounds of infringement of the principle of subsidiarity, hence it is up to the Court to clarify this principle. As above-mentioned, the CJEU does not upend EU action on the ground that it does not comply with subsidiarity thus any action launch before the Court seeking to clarify the scope and content of the principle of subsidiarity is most likely to entail further integration and likely to have an impact on the role of national Parliaments in the EU's decision-making process.
The Foreign Secretary explained, during a European Scrutiny Committee’s evidence session, that the principle of subsidiarity test should be “whether it is necessary and effective for powers to be exercised in Brussels for the effective operation of a single market and the effective operation of the European Union” and “Where powers can be more effectively or conveniently operated at national level or, indeed, sub national level, they should be”. However, he then confirmed that such decision won’t be taken by Westminster individually, as it should be, but in conjunction with other parliaments. Contrary to what Philip Hammond said “a mechanism that allows national parliaments, working together, to elevate issues into a process for consideration” won’t be an effective mechanism.
It is not clear yet what would be proposed to fully implement the EU’s commitments to subsidiarity, but the introduction of a red card is clearly not enough to protect Westminster prerogatives and cannot be called reform let alone a fundamental change in the relationship with the EU. Nonetheless, as Treaty changes are not on offer, which has become crystal clear after Donald Tusk’s letter to David Cameron and the December’s European Council Conclusions, and a legally binding and enforceable red card system can only be achieved by amending the treaties, it seems that the Government would only be able to get an enhanced yellow card procedure.
The subsidiarity principle is no substitute for sovereignty, as it is the EU, and not national parliaments, which decide what powers are exercised at which level thus the renegotiation must ensure that is the other way round and reassert the sovereignty of the Westminster Parliament.
The subsidiarity principle is not the answer to the loss of legislative power that Westminster has suffered, and will continue to suffer, due to the EU integration process. Westminster must have its powers back but for that we have to leave.