Subsidiarity

Perhaps it is only since Tony Blair gave away so much of John Major’s negotiation of the Maastricht Treaty signed in 1992, that we have realised what a good deal that was and how lucky David Cameron will be, if he can win most of it back.  As it is, his shopping list remains secret but it is most likely too long.  He wants to come back with as many goodies as he can get to justify a “yes” campaign so the longer the list, the more successes can be shown.

That may not be wise: sometimes the rifle is more effective than the shotgun.  This note argues that what we most want is not a ragbag of trifles but the implementation of just one thing: the “subsidiarity”[1] agreed in the Maastricht and confirmed in the Lisbon (2009) Treaties[2].  In other words, returning sovereignty to all member states for those things that really do not need EU uniformity. 

Lord Garel-Jones was the UK Europe Minister during the Maastrict negotiations. In an important speech to the International Institute for Strategic Studies on July15th, he said that the subsidiarity agreement achieved in the Maastricht Treaty was thereafter obstructed by Brussels.  The Lisbon Treaty had a further shot at transferring responsibility for all save that which really had to be EU-wide back to member states. A complex system of “yellow cards” was introduced under which if enough chambers of national parliaments voted to make the issue in question subsidiary, then it should be left with member states, not Brussels.  See the Appendix to this paper for a full explanation.

The download forming the Appendix is the Brussels party line that these transfers of powers are taking place. Needless to say, in reality, Brussels has continued to obstruct the return of any issue to member states in defiance of the Maastricht and Lisbon Treaties.

Most of the reforms the UK are seeking would be met by implementation of subsidiarity, e.g. lightening regulation on SMEs, welfare for cross-boarder workers, social matters and employment rules. If the subsidiarity agreement is honoured, by the Commission and all member states, almost all else falls into place. 

To take one simple issue: why do hairdressing salons need to be regulated by both Brussels and Whitehall?  A further tranche of hairdressing regulation appears to be on the way from the Commission.  Of course, hairdressing salons should protect the health and safety of its customers and employees but that is a generic requirement for all businesses.  In such a competitive and traditional market, with no cross-border trade, why should any further regulation be needed at all, still less both nationally and from Brussels?  Why should we care if hairdressing regulations are the same in Naples and Sunderland?

The EU official view of subsidiarity

Nowhere is the EU hypocrisy in claiming one belief and practising the opposite more obvious than for subsidiarity, except perhaps deregulation.

The EU claims that subsidiarity is one of the three guiding principle of the EU: “In all cases, the EU may only intervene if it is able to act more effectively than Member States.”

Yet its own presentation of the topic looks a little different: “The general aim of the principle of subsidiarity is to guarantee a degree of independence for a lower authority in relation to a higher body or for a local authority in relation to central government. It therefore involves the sharing of powers between several levels of authority, a principle which forms the institutional basis for federal States.”[3] Note the EU’s assumption of superiority and federal government.  And, importantly, subsidiarity has to be justified, not the reverse.

The three levels of authority are EU exclusively, shared and subsidiary.[4]

“The areas over which the EU assumes exclusive competence are:

• the Common Commercial policy 

• the Common Agricultural policy

• Fisheries policy

• Transport policy

• Competition rules

• Rules governing the free movement of goods, persons, services and capital."

The list of “shared competences”, i.e. the EU and/or member states’ areas of legislative responsibility, is exceedingly long and the list of areas for subsidiarity does not exist at all. In practice Brussels casts its net, sometimes with the tacit support of member state civil servants over anything it cares to regulate.

Thus whilst the Treaties and Brussels pay lip service to subsidiarity, it is simply not implemented.

Implementing subsidiarity

Lord Garel-Jones suggested that the yellow cards requiring subsidiarity should be replaced by red cards with no opportunity for Brussels to frustrate the process.  With the majority of EU members, however, now in the Eurozone and calling the shots, enough votes for red cards would be very hard to achieve.  Member states cannot achieve them now for yellow cards.

What needs to happen now it that all the areas of shared competence be apportioned either to the EU’s “exclusive competence” or be deemed subsidiary and left to member states, starting with hairdressing.  Furthermore, the areas of exclusive competence need to be more tightly defined.  One such, transport policy, could be interpreted to mean that only Brussels can make decisions concerned the new UK HS2 train line.   All apart from those tightly defined competences should be deemed subsidiary.

The main problem with the status quo is that the Commission only has to assert its opinion that it should be an EU matter and the Court of Justice of the European Union will automatically back it up, as happened to Germany in 1997.[5]

It would always be possible to add sectors to the uniformity (“exclusive competence”) list at a later date but that should require the “double lock”, i.e. majorities of both the Eurozone and non-Eurozone members.

Recovering subsidiarity would go a long way to satisfying the UK’s wishlist.  Of course the UK would like more, notably protection for financial services, control over employment law and reform of the Common Agricultural Policy which has been so often promised and equally often reneged upon.  With luck, David Cameron can achieve some of that but the brutal truth is that if the UK cannot find at least 14 other member states to agree, it is not going to happen.

Locking in agreement on subsidiarity

Treaty change is not going to happen until 2020 at the earliest, because major EU intergovernmental meetings take at least four years to set up.[6]Brussels may hope the current UK government will be gone by then and be replaced by something more pliable.  Given the EU’s history of disregarding democracy and steaming on regardless, the UK should insist on some form of binding short term agreements to last until a new treaty ratifies them.  One to one treaties between the UK and each other member state provide an answer and are legitimate within existing EU rules provided they are compatible with EU Treaties.  Since subsidiarity is very much enshrined in the Maastricht and Lisbon Treaties it would be hard for the ECR to rule against bilateral agreements implementing it.

These agreements should start from the Dutch government's new philosophy of "Europe where necessary. National where possible" (see here). The bilateral treaties should commit both parties to insist upon:

1. The revised list of EU exclusive competences
2. All other matters being deemed subsidiary
3. Revision the rules for the ECJ so that they follow these agreements and not the whims of Brussels.

Leaving the EU Parliament and Commission out in the cold would do them no harm at all.

Reasons for all member states to implement subsidiarity

1. The principle was agreed in the Maastricht Treaty and remains “the general principle of European law”. Implementation has been frustrated by the Commission.

2. This benefits all member states and is not special pleading for the UK.
3. There is a good reason in 2016 for EU members to agree to this which did not exist in 1991: nationalist parties are gaining strength and unless nationalists are given some red meat, the EU will fall apart.  As well as Greece, look at France (National Front), the “Alternative for Germany” party, Spain (Podemos), the Danish People’s Party, the “Finns Party” and UKIP.
4. Brussels should be shamed by exposing the gap between their rhetoric and reality.
5. It would be a major step towards less regulation.  With full implementation of subsidiarity, each sector would be regulation either by the EU or each member state but not both.
6. Less regulation and more freedom for member states to develop their economic advantages (e.g. financial services) will increase the competitiveness of the EU as a whole.
7. While consolidating the implementation protocols into a future treaty would be helpful, treaty change is not essential.  The principle has already been established and binding inter-governmental agreements (bi-lateral treaties), which are allowed by the Amsterdam Treaty, would suffice.

Conclusion

Brussels, on past form, cannot be trusted.  Any positive outcomes from the renegotiation need to be watertight and legally binding.

Now we need legal authority to be apportioned either exclusively to the EU and more tightly defined or all other matters be deemed subsidiary and left to member states. Shared responsibilities to be abolished.

Pending a new treaty, intergovernmental (bilateral) agreements should set those agreements in stone.

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[1] The concept was invented by the Roman Catholic church to allow some degree of devolution and reached Brussels via the German word “Subsidiaritāt”

[2] Article 5(3) of the Lisbon Treaty: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”

[3] THE PRINCIPLE OF SUBSIDIARITY, p2, Fact Sheets on the European Union – 2015.

[4] For definition and allocation of competences see also http://ec.europa.eu/citizens-initiative/public/competences/faq 

[5] Germany claimed that the Directive on Deposit Guarantee Schemes was not compatible with the principle of subsidiarity

[6] Meetings to make minor treaty changes can be much quicker especially if Germany approves.

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Appendix - Yellow Cards

“EU law-making is undergoing a profound change in an oddly-shaped annex to the European Parliament building in Brussels. Here, officials working on behalf of 28 national parliaments are helping their members flag up draft EU laws that may fail to respect ‘subsidiarity’. That is the idea that the Union should act only when strictly necessary, and that the national governments should act where possible. The 2009 Lisbon treaty gave national parliaments the right to police subsidiarity through the creation of a so-called 'yellow card' system. This allows a third or more of them, acting together, to vet and temporarily block draft laws proposed by the European Commission. (For legislation in the sensitive area of justice and home affairs, the threshold is only a quarter.) Each parliament has two votes, or one per chamber for the 13 member-states that have bicameral systems. Each chamber that votes for a yellow card provides a 'reasoned opinion' why the EU law in question is an unwarranted trespass on their sovereignty. A yellow card requires 19 reasoned opinions (14 for a piece of justice legislation). The Commission can get around a yellow card by giving clearer justifications for its actions and proposing the law again, perhaps with some changes or caveats added. But if it does, half the national parliaments can still block the second attempt, rather than just a third the first time around. This is the unwieldy 'orange card' (29 reasoned opinions). At this point, if either a majority of governments or MEPs agrees that the orange card is justified, then the legislation is defeated outright.

National parliaments have yellow-carded new legislation only twice. The first occasion was last year when they rejected the adoption of common EU rules on the right to strike (known as 'Monti II'). But last month, parliaments in Britain, Cyprus, Hungary, Ireland, Malta, the Netherlands, Slovenia, Sweden, Romania, as well as the French and Czech senates, rejected a proposal by the European Commission to create an EU prosecution office. (See here for a fuller analysis of the stakes in the European public prosecutor debate.) National parliamentarians' deliberate blocking of a project that has a distinctly federalist flavour marks their arrival as serious players in how the Union is governed. Why?

First, because the Commission has so far treated a yellow card as a virtual veto. In 2012, EU officials withdrew Monti II, albeit while insisting that the legislation did not fall foul of the subsidiarity principle. European Commissioners have even amended draft legislation pre-emptively, such as the 2012 directive on public procurement and another (the IORP directive) on pensions, just to ward off a likely yellow card from national parliaments.

Second, most national parliaments have long had their own offices in Brussels. But the existence of the yellow card regime since 2009 has made this network of offices – cooped up in their shared corridor – more coherent by giving it a common purpose. These officials are getting better at using the brief two-month period allowed for assessing draft legislation to connect the debates in their home parliaments to each other, and to the EU's legislative process. So it is likely that yellow cards will become more frequent in future.

Third, the yellow card scheme is making national parliamentarians more assertive on EU issues. Apparent attempts by Commission officials to pressure wavering parliaments over their EU prosecutor proposal only served to turn more chambers against the idea. And now, one national parliament, or even a single chamber, has a powerful means to signal that they do not fully agree with their own government's European policy. For example, France's government, and its National Assembly, supports the creation of the proposed EU prosecutor. The French Senate clearly has a different take. (The powers of such chambers over EU business could become pivotal if a member-state has a minority government.)

Hence the yellow card innovation is encouraging governments to be more careful about consulting national parliamentarians first – including the frequently ignored upper chambers – before striking deals in Brussels. It may even make the lines of democratic accountability within individual member-states stronger than they were before the Lisbon treaty. And the scheme should demonstrate to eurosceptics in Britain and elsewhere that the checks on EU executive power provided for under the Lisbon treaty are far better than they would perhaps like to believe.

The spectacle of national parliaments acting in concert to limit EU action is aptly symbolic at a time when euroscepticism is rising to unprecedented levels across the Union. But it is more likely that the yellow card system will act as a safety valve for such pressures, rather than a US-style filibuster for those who would like to stymie the EU altogether. Governments could also make a minor, surgical change to the treaties to expand the procedure so that it can be more constructive. For example, new rules could allow a third of national parliaments to request the Commission to bring forward new laws and a half of them could ask for useless or out-of-date legislation to be repealed. Furthermore, eight weeks is only a heartbeat in European politics. The amount of time available for parliaments to consider the Commission's draft proposals should be extended to twelve weeks. (These ideas were recently proposed in a major CER report.)

Twenty years ago, Jacques Delors, then president of the European Commission, jokingly offered a €200,000 prize for a clear definition of what 'subsidiarity', a concept drawn from Catholic theology, actually meant. Lord Mackenzie-Stuart, a former British president of the European Court of Justice, later termed it mere “gobbledygook”. But the actual answer is neither theological nor legalistic. It is being eked out politically, on a case-by-case basis, as some 40 parliamentary chambers across Europe slowly learn how to form alliances, determine what their shared interests are, and – when warranted – take action vis-à-vis Brussels."