16th Sep 2019


Can subsidiarity save this treaty?

When European leaders meet on June 16-17, there is something they can do to revive public confidence in the European Union in the wake of the French and Dutch "no" to the Constitutional Treaty.

Whether or not they declare the treaty dead, they ought to immediately implement one element of it, the so-called Early Warning System that would give national parliaments a say in the day-to-day business of the EU.

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This action would be entirely legitimate and could, at least modestly, lessen the democratic deficit and improve the image of the EU in the eyes of voters.

Under the new system, national parliaments would become "subsidiarity watchdogs."

A political check on the manner

Subsidiarity, first introduced in the Maastricht Treaty, requires that, in policy areas where competence is shared between the EU and the member states, the EU should not act when action at the national level is more appropriate.

It is a political check on the manner in which the EU exercises its legal powers. In effect, it obliges the EU to think twice before legislating, and to legislate in a way that places fewest limits on the member states’ freedom of action. It is an elementary principle of good governance.

In theory, the EU institutions are already supposed to take subsidiarity into account when they legislate. In practice, however, it is frequently violated, because under current rules there is no political mechanism in place whereby legislative proposals could be challenged specifically on subsidiarity grounds.

This is where national parliaments come in. Since they are the political institutions most affected when the EU oversteps its bounds, they are ideal for the role of "subsidiarity watchdogs."

National parliaments have been losers

The Early Warning System was devised by the Convention that drafted the Constitutional Treaty, as part of its broader mandate to bring the EU "closer to its citizens."

As such it has a dual purpose, to promote subsidiarity compliance and to enhance the EU’s democratic legitimacy by giving national parliaments a direct role in EU politics for the first time.

In the historical process of European integration, national parliaments have been the big losers.

They are left with little influence over the formulation of EU laws, which are effectively passed over their heads.

A majority of Convention members were national parliamentarians, so it is unsurprising that they wanted to redress this loss. Notwithstanding the work of the European Parliament, national parliaments are still the heart and soul of European democracy.

How does it work?

How exactly would the Early Warning System work? The Commission, the body that initiates legislation, would send all new legislative proposals to national parliaments. Each national parliament would have six weeks to submit a "reasoned opinion" raising objections to a proposal on the grounds that it violates subsidiarity – in other words, that the matter should be left to national governments.

If one third of national parliaments (9 of the current 25) raise objections, then this constitutes a "yellow card" and the proposal must be formally reviewed. After this review, the Commission may "maintain, amend, or withdraw" the proposal, and must "give reasons" for its decision.

This system would allow national parliaments to intervene early and vocally in the European legislative process.

In effect, it would set up a dialogue – or more likely a sustained argument – between the Commission and national parliaments over how the EU should be governed. But it would also restore to national parliaments some influence over their own governments, who now have a tendency to negotiate with one another behind closed doors in the Council of Ministers and present the result to their parliaments as a fait accompli.

Red card

Detractors claim that this system would be toothless because the Commission could simply ignore national parliaments’ opinions.

Indeed, it has no provision for a "red card" that would allow them to actually veto a proposal. However, it is hard to see how a proposal could survive if a large majority of national parliaments were opposed to it. At least in the current atmosphere, the Commission would probably bend over backwards to accommodate their concerns.

Crucially, the fact that the system is merely advisory presents an opportunity for European leaders in their present predicament. Because it does not upset the existing power balance in the EU, it could easily be put in place without amending the treaty. Inevitably, there will be opposition.

Almost universally popular

Eurosceptics will complain that this amounts to smuggling elements of the treaty in through the back door. Europhiles will worry that "cherrypicking" the least objectionable elements of the treaty is a prelude to its abandonment. They should press ahead despite such objections.

There is ample precedent for such a move. In 1992, the people of Denmark voted "no" to the Maastricht Treaty. European leaders, meeting at Edinburgh, seized on that document’s new provisions on subsidiarity to prove to sceptical voters that the nascent EU would not become a federal superstate.

A number of subsidiarity-related reforms, such as the withdrawal of pending legislation, were implemented even before the Maastricht Treaty was fully ratified.

Further reforms were put into practice well before they were codified in the Amsterdam Treaty a few years later. The Danes, placated by these and other blandishments, voted "yes" to the Maastricht Treaty in a second referendum in 1993.

This time around, it looks doubtful that subsidiarity could rescue yet another treaty in distress, given the scale of the rejection by the voting publics in two of the six founding member-states.

The Early Warning System is one element of the Constitutional Treaty that was almost universally popular, and it will surely be included in the next round of treaty amendment, whenever that might be.

In the meantime, as the EU faces a period of uncertainty, it should be implemented immediately. It could at least give voters a glimpse into the machinery of European politics, and they might discover that the EU is a more reasonable and responsive institution than they had thought.

The author, a Canadian, is a Postdoctoral Fellow at the Munk Centre for International Studies, University of Toronto


The views expressed in this opinion piece are the author's, not those of EUobserver.

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