How it works
The subsidiarity control mechanism applies in areas where the EU shares competence with member countries.
In cases where national parliaments consider that draft legislative acts do not comply with subsidiarity, they can send a reasoned opinion to the Commission within eight weeks.
The Commission must take account of the reasoned opinions it receives.
Effects on the legislative procedure
The effect of the reasoned opinions on the legislative procedure depends on how many national parliaments react and how many votes they represent. Each of the 28 national parliaments is allocated two votes. If there are two chambers, each has one vote.
When reasoned opinions represent at least one third of all the votes allocated to the national parliaments, the Commission must review its proposal. This threshold is lower for draft legislative acts related to justice, freedom and security - one quarter. In both cases the Commission can decide whether to maintain, change or withdraw its proposal. The Commission must give reasons for its decision. This is known as the 'yellow card' procedure.
When reasoned opinions represent a majority of the votes and the draft act falls under the ordinary legislative procedure, the Commission must review its proposal and decide whether to maintain, change or withdraw it. If the Commission decides to maintain its proposal, it must justify its decision to the EU Parliament and Council as to why the proposal complies with the principle of subsidiarity. This is known as the 'orange card' procedure.
If a simple majority of members of the EU Parliament, or 55% of Council members, find that the proposal breaches the principle of subsidiarity, the proposal will not be given further consideration.
Procedures triggered so far
To date, the 'yellow card' procedure has been triggered three times and the 'orange card' procedure has never been used.
The threshold of at least one third of the votes allocated to the national parliaments was reached for the first time on a proposed regulation on the exercise of the right to take collective action. The Commission reviewed its proposal but did not find it in breach of the principle of subsidiarity.
However, the Commission considered the views expressed and the discussions among the co-legislators, the European Parliament and the Council, and recognised that its proposal was unlikely to gather the necessary political support for its adoption. The Commission therefore decided to withdraw the proposal.
The second 'yellow card' procedure was triggered in 2013 in relation to the Commission's proposal for a regulation establishing the European Public Prosecutor's Office. After careful review of the reasoned opinions, the Commission concluded that the proposal complied with the principle of subsidiarity and decided to maintain the proposal. The Commission gave reasons for its decision in the Communication COM(2013) 851.
The procedure was triggered for the third time in May 2016 after 14 parliamentary chambers in 11 EU countries objected to the Commission's proposal to review the posting of workers directive. After careful analysis of the reasoned opinions, the Commission concluded that the proposal complied with the subsidiarity principle and decided to maintain it. The Commission gave reasons for its decision in the Communication COM(2016) 505.
Protocol No 2 on the application of the principles of subsidiarity and proportionality provides that the Commission submits every year a report on the application of these principles. Since the 2018 edition, this report also covers the Commission’s relations with national Parliaments.