The Lisbon Treaty (2009) introduced the Subsidiarity Control Mechanism, which allows national Parliaments in the EU to issue Reasoned opinions if they consider that an EU draft legislative act does not comply with the principle of subsidiarity.
The Subsidiarity Control Mechanism applies in areas where the EU has shared competence with the Member States. It does not apply in areas where the EU has exclusive competence (such as the common commercial policy) nor to non-legislative documents such as communications or green papers.
In their reasoned opinions, national Parliaments must set out the reasons why they consider that the draft legislative act in question does not comply with the principle of subsidiarity.
The reasoned opinions may be sent to the President of the European Parliament, the Council and the Commission within a deadline of eight weeks from the transmission of the draft legislative act in all languages.
The rules of the Subsidiarity Control Mechanism are set out in Protocol No 2 on the application of the principles of subsidiarity and proportionality, which is annexed to the Treaties.
The practical arrangements for the operation of the Subsidiarity Control Mechanism are set out in a letter from President Barroso and Vice-president Wallström of 1 December 2009. [37 KB]
The Commission responds to all reasoned opinions received from national Parliaments. However, the formal effect of the reasoned opinions on the legislative procedure depends on the number of them submitted on a given proposal within the eight weeks deadline. In that context, Protocol No 2 operates with various thresholds, which have been named "yellow cards" and "orange cards".
For the purposes of the calculation of those thresholds, the Protocol assigns two votes to each national Parliament. In the case of a bicameral Parliamentary system, each of the two chambers has one vote. The total number of votes is at present 56 (twice the number of Member States).
If the reasoned opinions submitted correspond to at least one third of the votes assigned to the national Parliaments – or one quarter if the draft legislative act is submitted within the area of freedom, security and justice – the yellow card procedure is triggered. This means that the Commission shall review its proposal. On the basis of the review, the Commission may decide to maintain, amend or withdraw the proposal. The Commission must give reasons for its decision.
If the reasoned opinions submitted constitute a majority of the votes assigned to national Parliaments, and the draft is submitted under the ordinary legislative procedure, the orange card procedure is triggered. This means that the Commission must review the proposal. On the basis of the review, the Commission may decide to maintain, amend or withdraw the proposal.
If the Commission decides to maintain its proposal, it must justify, in a reasoned opinion to the European Parliament and the Council, why the proposal complies with the principle of subsidiarity.
In such circumstances the European Parliament and the Council shall consider whether the proposal complies with the principle of subsidiarity before concluding the first reading. If a simple majority of the members of the European Parliament or 55% of the members of the Council find that the proposal breaches the principle of subsidiarity, the proposal will not be given further consideration.
Until now, the yellow card procedure has been triggered twice.
In 2012, a yellow card procedure was triggered in relation to the Commission's proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services (the so-called "Monti II-proposal") – COM(2012) 130 final. Reasoned opinions were issued by 12 chambers of national Parliaments representing a total of 19 votes (threshold established by Protocol No 2 = 18).
After a careful assessment of the reasoned opinions received, the Commission did not find that the principle of subsidiarity had been breached. However, having regard to the views expressed and the state of play of the discussions among relevant stakeholders, the Commission decided, on 26 September 2012, to withdraw the proposal. Replies were sent to the chambers which had submitted an opinion. The withdrawal was published in the Official Journal on 16 April 2013.
In 2013, a yellow card procedure was triggered in regard to the Commission's proposal for a Council Regulation on the European Public Prosecutor's Office (also called the "EPPO-proposal") - COM(2013) 534 final. As the proposal was submitted within the area of freedom, security and justice, a total of 14 votes (1/4 of the 56) were required to trigger the yellow card procedure. By the expiry of the deadline, the Commission had received reasoned opinions corresponding to 18 votes from 14 chambers.
After careful examination of the reasoned opinions, the Commission adopted on 27 November 2013 a Communication – COM(2013) 851 final – in which it concluded that the proposal complied with the subsidiarity principle and decided to maintain the proposal. Subsequently, the Commission sent individual replies to the chambers which had submitted an opinion.
So far, no orange card procedures have been triggered.