The Constitutional Affairs Committee (AFCO) of the European Parliament (EP or Parliament) adopted recently a proposal to change the Rules of Procedure of the Parliament. The committees of the EP would be able to scrutinize the activities of national parliaments directly. This brings up many questions regarding the relationship between the European Parliament and national parliaments and the general perception of the meaning and significance of the principle of subsidiarity. Can or should the EU institutions do that under the current treaty-regime?

Article 5 of the Treaty on the European Union (TEU) defines subsidiarity. “3. 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. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.”

The principle of subsidiarity has existed formally in the TEU since 1992, but it was already part of the Single European Act of 1986 for the field of environmental policy. The aim of the principle of subsidiarity means that the EU can only exercise its powers when Member States cannot achieve the objectives on their respective levels and thus there is a need for action on the EU level. Subsidiarity, therefore, is an important principle regulating the everyday life of the EU and its Member States.

In a way, subsidiarity is like the principle of the vertical separation of power, ensuring that power is not concentrated on the EU level and the concerns of Member States are taken into account when decisions are made. Therefore, it serves the realization of the principle of the rule of law, but also it is one of the cornerstones of the relationship between the EU and its Member States. It defines the borders of EU action and gives a kind of safeguard for the Member States that their sovereign rights will be protected. It rests on fact and rationality: the EU will only decide on matters that can be dealt with better, in a more efficient way on the EU level.

However, the mechanisms established to protect subsidiarity do not seem to be working well in practice. There were only a few yellow and orange card procedures. According to the report of the European Union on better law-making from 2023, the EU national parliaments activated the yellow card procedure on three occasions only and there was no orange card procedure so far. The first yellow-card procedure triggered concerned the regulation on the exercise of collective action in 2012, known as the Monti II Regulation. The second one was about establishing the European Public Prosecutor’s Office (2013) and the third one about the Posting of Workers Directive from 2016. The European Commission refused the argument of the national parliaments in all three cases regarding the alleged breach of the principle of subsidiarity, although it did withdraw the Monti II Regulation for a different reason.

The Lisbon Treaty is also called the “Treaty of Parliaments” for its changes to the funding treaties regarding the rights of national parliaments and the European Parliament. However, the mere mentioning of national parliaments did not serve their more active role in European politics, on the contrary, the European institutions gained more prerogatives, while the national parliaments do not have any viable, frequently used options to influence European decision-making.

This asymmetry does not seem to be mitigated by the actions of the European institutions. A recent proposal of the European Parliament’s committee responsible for constitutional issues shows a concept represented by the majority of MEPs where the European Parliament’s role is to scrutinize the actions of national parliaments and not vice-versa.

In the report about the Parliament 2024 reform, AFCO members proposed an amendment (amendment 73) to the Rules of Procedure of the house that would make it possible for the committees of the European Parliament to scrutinize (selected, singled out) national parliaments, whether they implement EU law and “EU policies” correctly, whatever the latter means in this case. The text reads as follows (new part in bold):

“A committee may directly engage in dialogue with national parliaments at committee level within the limits of the budgetary appropriations set aside for that purpose. This may include appropriate forms of pre-legislative and post-legislative cooperation, including scrutiny of the implementation of Union law and Union policies.”

This formulation brings up many questions as well. There is sort of a problem of protocol nature, to begin with. A sub-organ, a committee of the EP may scrutinize one or more national parliaments in a procedure. The text does not say that the Parliament (plenary) can contact the national parliament, nor that the European Parliament committee can contact one or more committees of the national parliament. It specifically says that the sub-organ, a small number of MEPs may decide about the procedure to scrutinize a (whole) national parliament. This oversight could cause diplomatic and symbolic, maybe even practical difficulties. The lack of precise formulation breaches the principle of legal security, which can lead to significant procedural and implementation problems, bringing up questions regarding the possible extent of the scrutiny procedure.

Secondly, this new type of procedure is not intended in the proposal to be written into the primary law of the Union, it would be introduced through an internal norm of a European institution. The Rules of Procedure of the European Parliament should only regulate the actions of the European Parliament and cannot oblige national parliaments. Its outside legal effect is questionable. Why should the national parliaments comply with requests of the EP committees regarding scrutiny procedures? Such new procedures need to be established by treaty modifications.

This train of thought leads to a further, more substantial problem. The European Union is a (unique) international organization, established by its founding treaties. Fundamental decisions of an institutional nature, ones that change the balance of power between the EU institutions and the EU organs and its Member States should be carefully negotiated and codified in primary law. There is a reason why the Member States are the Masters of the Treaties, the EU exercises the sovereign rights of Member States based on the principle of conferral. The EU can only act as long as it has received the right to do so beforehand and substantial new procedures that affect the principle of subsidiarity in practice should be regulated on the appropriate level of legal sources.

The fact that the committee responsible for institutional issues in the European Parliament proposed such a modification through its own Rules of Procedure says a lot about the lack of respect for the principle of subsidiarity, vertical separation of powers, rule of law, and thus the Treaties and through them the Member States as well. The European Union can only function effectively once all parties accept that the cooperation between the institutions and the Member States needs to be based on mutual respect. European integration, including law and policies and the activities of EU institutions, needs to be built on the national parliaments and not contrary to their interests.

Árpád Lapu is a policy adviser on constitutional issues at the European Parliament since 2019 and a PhD student of the Károli Gáspár University of the Reformed Church in Hungary. Between 2017-2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an Edx MicroMaster in cooperation with the Catholic University of Louvain (UCLouvain) in international law. His field of research is non-participation in armed conflicts in international law and constitutional norms regarding non-participation in armed conflicts. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals of the Union, and research in the field of social sciences.