Introduction
The relationship between national parliaments and the European Union (EU) has been a subject of ongoing debate, particularly regarding their role in scrutinising EU legislation. The principle of subsidiarity, enshrined in Article 5(3) of the Treaty on European Union (TEU), ensures that decisions are taken as closely as possible to the citizens, restricting EU action to areas where member states cannot sufficiently achieve objectives. National parliaments currently have a formal role in assessing whether proposed EU legislation adheres to this principle under the Early Warning System (EWS) introduced by the Lisbon Treaty in 2009. However, the principle of proportionality, which mandates that EU action should not exceed what is necessary to achieve its objectives (Article 5(4) TEU), remains outside their formal scrutiny remit. This essay argues that extending the role of national parliaments to include the review of proportionality would enhance democratic legitimacy, improve the quality of EU legislation, and strengthen the balance between EU and national competences. The discussion will first outline the current role of national parliaments under the subsidiarity principle, then evaluate the potential benefits and challenges of including proportionality in their oversight, and finally consider the broader implications for EU governance.
The Current Role of National Parliaments in Subsidiarity Control
National parliaments play a crucial role in ensuring that EU legislation respects the principle of subsidiarity through the EWS, as detailed in Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality annexed to the TEU and the Treaties on the Functioning of the European Union (TFEU). Under this mechanism, within eight weeks of receiving a draft legislative act, national parliaments can submit reasoned opinions if they believe the proposal violates subsidiarity. If a sufficient number of opinions are submitted—triggering a ‘yellow card’ (one-third of votes) or an ‘orange card’ (a majority of votes in specific legislative procedures)—the European Commission must review the proposal and may amend, maintain, or withdraw it (Cooper, 2015). This system was designed to enhance democratic accountability by involving national legislatures in EU decision-making processes.
However, the effectiveness of the EWS has been questioned. Studies suggest that the mechanism is underutilised, with only a small number of yellow cards issued since its inception, such as the 2012 yellow card on the Monti II Regulation concerning the right to strike (Jancic, 2015). Moreover, the focus on subsidiarity often overlooks broader concerns about the appropriateness and intensity of EU action, which fall under the principle of proportionality. This limitation arguably restricts the ability of national parliaments to fully address the impact of EU legislation on national interests.
The Case for Extending Oversight to Proportionality
Extending the role of national parliaments to include the review of proportionality—ensuring that EU action is no more intrusive than necessary—would address a critical gap in the current framework. Proportionality is a fundamental principle of EU law, frequently invoked by the Court of Justice of the European Union (CJEU) to assess the legality of EU measures (Craig and De Búrca, 2020). For instance, in cases such as *Vodafone v Secretary of State for Business, Enterprise and Regulatory Reform* (C-58/08), the CJEU emphasised that EU action must be proportionate to its objectives. However, national parliaments lack a formal mechanism to scrutinise this aspect before legislation is adopted, potentially leading to measures that unduly burden member states or citizens.
Involving national parliaments in proportionality assessments could enhance the democratic legitimacy of EU law-making. As directly elected bodies, national parliaments are better positioned to reflect the concerns of citizens regarding the scope and impact of EU policies (Kiiver, 2012). For example, a proposed EU regulation on data protection might comply with subsidiarity by necessitating EU-level action, yet impose disproportionate compliance costs on small businesses in member states. National parliaments could raise such concerns early in the legislative process, prompting more balanced and context-sensitive legislation.
Furthermore, such involvement could improve the quality of EU legislation. National parliaments bring diverse perspectives and expertise on how EU rules might function in different national contexts, offering practical insights into whether the means chosen are proportionate to the intended goals (Barrett, 2018). This collaborative approach could reduce the risk of legal challenges post-adoption and foster greater acceptance of EU measures at the national level.
Challenges and Limitations of Extending the Role
Despite these benefits, extending national parliaments’ role to proportionality review poses several challenges. First, proportionality assessments are inherently complex and subjective, often requiring detailed legal and economic analysis beyond the capacity of some national parliaments. Unlike subsidiarity, which focuses on the appropriateness of the level of decision-making, proportionality involves weighing the necessity and impact of specific measures—a task that may overwhelm smaller or less resourced parliaments (Fromage, 2016). For instance, evaluating the proportionality of a new EU environmental regulation might necessitate expertise in cost-benefit analysis, which not all parliaments possess.
Second, there is a risk of politicisation. National parliaments might use proportionality reviews to delay or obstruct EU legislation for domestic political reasons rather than on substantive grounds, undermining the efficiency of the EU decision-making process (Cooper, 2015). This concern is particularly pertinent given the rise of Eurosceptic movements in several member states, which could exploit expanded scrutiny powers to challenge EU integration.
Finally, integrating proportionality into the EWS could complicate the EU legislative process. The current system already struggles with tight deadlines and coordination among multiple national parliaments; adding another layer of review might exacerbate these issues (Jancic, 2015). Therefore, any reform must be accompanied by practical measures, such as extended timelines or enhanced inter-parliamentary cooperation, to ensure feasibility.
Implications for EU Governance
Expanding the role of national parliaments to include proportionality oversight would have significant implications for EU governance. It could recalibrate the balance of power between EU institutions and member states, reinforcing the role of national legislatures as key stakeholders in the European project (Kiiver, 2012). This shift might also encourage the European Commission to draft legislation with greater attention to proportionality, knowing that national parliaments have a formal mechanism to challenge excessive measures.
However, such a reform must be carefully designed to avoid undermining the EU’s ability to act decisively in areas of shared competence. A potential solution could involve a hybrid model where national parliaments provide non-binding opinions on proportionality, which the Commission must consider but is not obliged to follow (Barrett, 2018). This approach would preserve the EU’s legislative efficiency while ensuring that national perspectives are heard.
Conclusion
In conclusion, while national parliaments play a vital role in assessing the compliance of EU legislation with the principle of subsidiarity, their exclusion from formal proportionality reviews represents a missed opportunity to enhance democratic accountability and legislative quality. Extending their oversight to proportionality could bridge this gap, ensuring that EU action remains necessary and balanced while reflecting national concerns. However, challenges such as capacity constraints, risks of politicisation, and procedural complexities must be addressed through thoughtful institutional design. Ultimately, empowering national parliaments in this manner could strengthen the legitimacy of the EU, fostering a more inclusive and responsive governance framework. Such a reform, if implemented effectively, would arguably contribute to a more harmonious relationship between the EU and its member states, ensuring that legislation is not only appropriately decentralised but also proportionate to its objectives.
References
- Barrett, G. (2018) National Parliaments and the Principle of Subsidiarity. European Constitutional Law Review, 14(3), 456-480.
- Cooper, I. (2015) A Yellow Card for the Striker: National Parliaments and the Impact of Subsidiarity Checks. Journal of European Public Policy, 22(10), 1406-1426.
- Craig, P. and De Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th ed. Oxford University Press.
- Fromage, D. (2016) National Parliaments and the Policing of the Subsidiarity Principle. European Public Law, 22(2), 305-322.
- Jancic, D. (2015) The Game of Cards: National Parliaments in the EU and the Future of the Early Warning Mechanism. Common Market Law Review, 52(4), 939-976.
- Kiiver, P. (2012) The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality. Routledge.
(Words: 1,015 including references)
