Amp subsidiarity an empty promise 2013

The EU’s principle of subsidiarity an empty promise

Anne-Marie PĂĽlsson 2013

EUD

an alliance for a Europe of democracies

THE EU’s PRINCIPLE OF SUBSIDIARITY – AN EMPTY PROMISE Anne-Marie Pålsson

Docent and Adjunct Professor at the Department of Economics, Lund University and former Member of Parliament for the Moderate Party

By Anne-Marie PĂĽlsson Docent and Adjunct Professor, the Department of Economics, Lund University and former Member of Parliament for the Swedish Moderate Party.

This report was originally published in Swedish by Forum fĂśr EU debatt info@forumeudebatt.se April 2013

This report has been translated and published by the EUDemocrats with the consent of the author. EUDemocrats is partially funded by the European Parliament, which is not responsible for the contents of this publication.

EUDemocrats Rue du Trone 113-115 B-1050 Bruxelles Belgium join@eudemocrats.org 2

Contents Prologue....................................................................................................... 4 1. Introduction ............................................................................................. 6 2. The principle of subsidiarity .................................................................... 8 3. The introduction of the subsidiarity control in Sweden ........................ 13 4. The outcome of the Riksdag’s own reviews of the principle of subsidiarity................................................................................................. 17 5. The difficulties with the review of the subsidiarity – a discussion about principles ................................................................................................... 22 5.1 The limitations of parliamentarianism ............................................ 22 5.2 The wide reach of EU competences ................................................ 24 5.3 The extensive target directory......................................................... 26 5.4 The first right of interpretation of the Commission ........................ 28 6. What can be done? ................................................................................ 33 6.1 Reforms at Swedish level ................................................................. 33 6.2 Reforms at EU level ......................................................................... 34 6.3 Changes of the Treaty ...................................................................... 35 7. Concluding viewpoints........................................................................... 38 8. Literature ............................................................................................... 40

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Prologue 16th January 2013 One of the biggest party leader debates of the year has just concluded in the Swedish Parliament, the Riksdag. From the rostrum came praise and criticism, spiteful attacks and unashamed flattery for five hours. Now and then speakers were interrupted by vigorous applause from the many present members as they honoured the day.

The level of activity outside the chamber was also high. In the lobby, security staff packed the room alongside civil servants from the Government Office, staff from the offices of the political parties, photographers, journalists, and other members of the media. This was one of the few days during the year that the Riksdag really was allowed to be at the centre of political interest.

But now the lights above the Riksdag’s largest plenary hall have been switched off and the press gallery has been cleared of its visitors. The members have left their seats and hurried away to new meetings, the applauses have gone silent and calmness once again rules in the house of power.

However, the work in the chamber has not stopped, it continues on as usual, according to its rituals and without attention from the outside world.

At the podium sits the Speaker who announces the next debate of the day – the KU8 report from the Committee on the Constitution – a follow up to the Riksdag’s application of the subsidiarity principle. A handful of members have gathered at the front rows of the chamber to follow the debate and the list of speakers is very short. There are only three names on it: one member from the Social Democrats, one from the Moderates, and one from the Centre Party.

The speaking time for the members is even shorter. None of the members ask for a reply and no members whom have entered late have asked to speak. For an outsider observing the debate, its purpose, from an MP’s perspective, seems to be, first and foremost, to show their colleagues in the committee that the report has been read and somewhat understood.

Thus, no reflections or digressions of principles or ideologies of any sort were offered by the debaters. The consensus overwhelmingly appears to be that this is not an issue for the members of the Riksdag to spend their time and effort on.

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After less than ten minutes, the Speaker hits the club on the table in order to announce that the debate is finished and that it is time for the Riksdag to tackle the next item on its agenda.

Which subject did the report cover that was met with such disinterest?

Did it concern an insignificant paragraph in an insignificant legislative act within an insignificant political area? The answer is no. On the contrary, it was an entirely central issue for the Riksdag; to be specific it dealt with whether or not the EU during the past year had amassed even more powers at the expense of the Member States. It formally called for a review of how legislative proposals originating from the EU during the year had related to the central principle of the Lisbon Treaty concerning the division of powers: the so called principle of subsidiarity.

Even if taking into consideration the context of the result from the previous debate, the Committee on the Constitution could still be expected to be met with great interest from members of the Riksdag.

After all, it is the Riksdag’s own power that is hollowed out if the principle of subsidiarity is not adhered to.

However, this was not the case. Aside from the list of speakers being very short and replies absent, another peculiarity could be observed.

Representatives from the parties who are openly critical of the EU – the Greens, the Left Party and the Sweden Democrats – did not take part in the debate at all. Shouldn’t they, of all parties, have taken the opportunity to criticize the EU’s 2011 acquisition of further rights to decide over more issues in ever larger policy areas?

This was after all what the Committee on the Constitution had stated in the document that the Riksdag discussed on this day. Why the lack of interest? Is there a fear of conflict among the members of the Riksdag in regards to the EU? Or is the silence only a sign of resignation? Sweden is a Member State of the EU and the Swedish believe this is positive; however, there is perhaps the opinion amongst citizens and policy makers that it is impossible to influence what happens in Brussels.

Maybe the answer is that simple. But there is also another explanation as to why members of the Riksdag do not devote more attention to the issue of Swedish influence in the EU: it is a meaningless occupation! The instrument that the Riksdag and other national parliaments have been allocated in order to stop the EU from helping itself to more power than the treaty allows – the subsidiarity review – is a paper tiger. Its teeth are not sharp enough to stop unjustified transfers of power to Brussels. It might be exactly this conclusion that the members of the Riksdag have reached, hence their disinterest and silence.

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1. Introduction The principle of subsidiarity is the most important instrument for the sharing of power between the Union and the Member States. In everyday language subsidiarity means that decisions should be made at the lowest level possible but a more adequate interpretation of the term characterises subsidiarity as the answer to the question of how society should be organised and which level of power should take action.

The existence of this clause was considered to be of particular importance in the lead up to the Swedish referendum on EU membership, as it was understood to be a safeguard against Brussels centralisation going too far. It also played an important role before the Swedish ratification of the Lisbon Treaty, but at the time long-standing criticism of the democratic deficit was also a focus. The phenomenon of a democratic deficit has numerous definitions but in the context of the EU it has been used to describe the lack of democratic legitimacy which the institutions have and the limits constraining national parliaments to participate in the work of the Union. In order to soften the criticism national parliaments had of the Lisbon Treaty, the institutions were given the responsibility to ensure the principle of subsidiarity was adhered to. The idea being that the EU would subsequently be more democratic.

In regards to this, the belief in the possibilities of the Lisbon Treaty can clearly be seen in the speech given by, at the time, Minister of European Affairs, and later EU Commissioner, Cecilia Malmström (Peoples Party Liberals) in the Riksdag before approving the Treaty on the 30th of November 2008: “Democracy is also strengthened. The competences of the EU are defined in a clearer way. The Treaty states that both in the Member States as well as in the Treaty it is defined how much power the EU should have. The Riksdag and other national parliaments get a strengthened role. No legislation will come from the EU without it having been checked by national parliaments. If a sufficient number of national parliaments think a proposal for legislation shouldn’t be formulated at EU level it can be completely stopped.”

From a state judicial point of view, the EU’s principle of subsidiarity is a freak. It does not work and was probably never intended to work as the 6

built-in systematic errors are too many. The reform indeed projects a vision of a reduced democratic deficit within the Union; however, this is just a mirage. The EU did not become more democratic with the Lisbon Treaty and the Treaty did not make it easier for Member States to stop the competence creep that has gone on for a long time. Put incisively, at most it has given national parliaments some therapeutic tasks of little importance.

The object of this study is the EU principle of subsidiarity. The ambition is limited to reviewing the application of the principle of subsidiarity rules and allocations of competences that now are specified by the Treaty. More precisely, the purpose is to describe the path to the current established order, emphasising the Swedish situation, showing the effects of the principle of subsidiarity to this point, and discussing why it cannot function.

My purpose is not to conduct a theoretical argument about the principle of subsidiarity as such, or about at which level the competences should be allocated for the EU to work as effective as possible, following some predetermined criteria. Such research is better suited for political science and economics journals. My ambition is also not to develop a model for how a review of subsidiarity should be designed in order to generate the best results possible based on the aims decision makers have endorsed.

This study is structured in the following way. In section 2, the principle of subsidiarity is described more precisely. Section 3 concerns actions needed to implement the Treaty into Swedish law in regards to adjusting the work of the Riksdag accordingly. In section 4, the outcome of the Rikdag´s review of the principle of subsidiarity is discussed and section 5 contains a more principled discussion of the limitations of the principle of subsidiarity. Section 6 consists of a short discussion about what changes can be made to strengthen the efficiency of the principle of subsidiarity.

Concluding remarks are given in section 7.

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2. The principle of subsidiarity One already gets the impression of the importance of the subsidiarity principle early on in the Lisbon Treaty, as it is included in the introductory articles. Its more precise meaning is that decisions should not be taken at higher political level than is necessary and that higher political levels should support lower levels and not unnecessarily take over their capacity of decision making. The purpose of the clause is not to distribute competence between the different levels as this is done in the treaties. It should rather be seen as an overriding principle for the work of the Union and as a means for the Commission to determine the level at which measures should be taken.

The principle of subsidiarity was introduced already in 1986 in the Single European Act but was then restricted to the political area of environment. With the Maastricht Treaty, entering into force in 1993, the subsidiarity review received a more prominent role. Rules for when the Union can act were established in the introductory articles of the Treaty and according to these rules this may happen when it has a legal right to this (principle of legality) and when it can be done more effectively at Community level than at national level (principle of subsidiarity)1. The rules also say that the proposed measure should not go beyond what is necessary to achieve the objective (principle of proportionality).

The Maastricht Treaty also introduced rules stating that all legislative matters should be examined according to the principle of subsidiarity and that the Commission should justify its proposals on that basis.

Responsibility for the review of subsidiarity was then allocated to the EU institutions (the Council and the European Parliament) and the review would only take place for those issues where there is shared power. In areas where the EU has exclusive competence no such review should be performed.

In the Amsterdam Treaty, which entered into force in 1999, the principles of subsidiarity and proportionality were developed "with a view to defining more precisely the criteria for applying them and to ensure their

1

Article B of the Treaty on the European Union states that the principle of subsidiarity should be considered while Article 3B of the Treaty on the European Communities indicates how the concept of subsidiarity should be interpreted.

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strict observance and consistent implementation by all institutions�2. The changes introduced at the time, however, were not concerning the material content of the principle of subsidiarity, but how the principle should be applied. This was done by new protocols to the Treaty including, among other provisions: i) that every bill should be justified with regard to the principle of subsidiarity. ii) that the Commission should consult with concerned institutions before submitting their proposals. iii) That the Commission should submit an annual report to the European Council and the European Parliament on how the subsidiarity and proportionality review has been applied. iv) that the European Parliament should be informed of the Council's position on subsidiarity etc.

The next treaty change began with the Laeken Declaration of 2001. In that declaration the EU heads of state and government tried to take a firmer grip on the ongoing transfer of power to Brussels and the democratic deficit – issues that have long plagued the Union. Thus, it was concluded that the EU must "become more democratic, more transparent and more efficient." The declaration also contained clear statements about the Union needing a better balance of the wording of competences and instruments to make the allocation more transparent so that a "creeping expansion of the competence of the Union or encroachment upon the exclusive areas of competence of the Member States" would not occur.

In the same declaration, it was decided that a convention would be convened with the task of preparing a proposal for a new Treaty for the European Union that would make the Union more democratic, transparent, and efficient. What happened next is well known. The Conventions drafted a constitution for the EU which never materialized. The French and Dutch electorates voted by a wide margin against the constitutional proposal in referendums. However, the proposal was revived after a year under a new name - Treaty instead of a Constitution - and without the provocative elements such as the common national anthem and flag. It was called the Lisbon Treaty and entered into force on 1st of December 2009.

The Lisbon Treaty meant a new review of subsidiarity but this did not address the substance of the clause. The basic principle for demarcation between the competences of the Union and the Member States are

2

The quote appears in the preamble to the Protocol on the principles of subsidiarity and proportionality.

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essentially the same as before and are set out in Articles 4 and 5 3. In Article 4 the main principle is that the “competences not conferred upon the Union in the Treaties remain with the Member States”. In Article 5 this is specified in more detail: “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.” (Article 5.1.)

In the following part the principle of allocated competences is clarified: “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.” (Article 5.2) Article 5.2 states when the Union is allowed to act and Article 5.3 states when the Union should act. What must be fulfilled is described as follows: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar 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.”

(Article 5.3) Article 5.3 indicates that the "should" criteria can be divided into the principle of necessity and the added value principle. According to the principle of necessity, the EU should take action only if it is necessary for the target to be achieved. The value-added criterion indicates in turn that

3

These are set out in Part 1 of the Lisbon Treaty: Treaty on European Union. The Amsterdam Treaty equivalents of these are Article 2 of the Treaty on European Union and Article 5 of the Community Treaty.

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this should happen only if the objective can be better achieved by the EU taking action than if the individual Member States do.

How the EU should act is finally described by the principle of proportionality: ”Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.” (Article 5.4) The big news of the Lisbon Treaty was that the responsibility of the subsidiarity control was transferred from the EU's own institutions – the Council and the European Parliament – to the national parliaments. The form of how their control is going to pan out is given in a special protocol and it is stipulated that each draft bill should be sent to the national parliaments, whom have eight weeks to examine the proposal on the basis of the principle of subsidiarity. If they find that the proposal is contrary to the principle of subsidiarity, they should send a motivated opinion to the Commission.

The motive for the change was to reduce the democratic deficit of the Union, which was linked to the national parliaments not being sufficiently active and involved in the work of the Union. Repeated attempts had been made in the past to alleviate the problem but these were cautious and confined to the exchange of information. For example, in the Amsterdam Treaty it was introduced as such a specific protocol on the national parliaments' right to information. Obviously these measures are not perceived as being sufficient to silence criticism, otherwise it is difficult to understand the radical - but parliamentary impossible - the grip to add the subsidiarity review in the hands of the national parliaments as was done with the Lisbon Treaty.

The news with the Lisbon Treaty is that three instruments are introduced to strengthen subsidiarity: yellow card, orange card and right to trial by court. Under the provisions, the yellow card is picked up if at least 1/3 of the national parliaments in their review have found that the Commission's proposal is contrary to the principle of subsidiarity. Then the Commission must review its proposal. However, the requirement for reconsideration does not mean that the Commission must amend its proposal as it can leave it unchanged. But in that case the Commission must (under the rules of the yellow card) specifically justify its decision.

The meaning of the orange card is that if more than half of the national parliaments have found that the proposal is contrary to the principle of subsidiarity, the proposal must be reviewed as is the case with the yellow 11

card. For that to apply in the case that the Commission chooses not to amend its proposal a new subsidiarity review should be done, but now by the Council and the European Parliament. If any of these institutions find the proposal as being contrary to the principle of subsidiarity, the proposal falls.

The right to bring a case before the European Court of Justice (ECJ) means that a single Member State may request that the Court judges whether the proposal complies with the principle of subsidiarity (it is worth noting is that the right to bring the case before the ECJ is not for the national parliaments, but only for the governments of the Member States.) 4

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The ability to let the European Court of Justice examine the proposals of legislation already existed but it was not explicitly written in the Protocol on subsidiarity but was just generally formulated in the article on the Court's competences.

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3. The introduction of the subsidiarity control in Sweden The work to introduce the Lisbon Treaty into Swedish law started in 2001 when the government appointed the EU 2004 Committee. 5 The aim of this Committee was to stimulate the debate about EU issues and to prepare Sweden for the new Constitution of the EU. In the directives, the need to examine the role of the national parliaments was specifically mentioned, with an emphasis on democracy, influence and governing issues. The conclusions of the Committee’s work were presented in a 2005 report with the suitable name: Stop ignoring the EU! (Sluta strunta i EU!). 6 The Committee did not make any long lasting impressions and its single important contribution was a proposal to establish a State authority with the task to promulgate information about the EU. However, such an authority was never founded.

Nevertheless, the real work started a year later when the Convention of the future was appointed. Swedish delegates would be appointed and the government and the Riksdag would follow the work of the convention and take positions on its propositions. For this purpose, a number of documents were produced; the striking feature of them being that the government never announced any of own views on the two issues which were of most importance: the principle of subsidiarity and the role of the national parliaments. The government was, however, satisfied in supporting the proposal from the Convention with the argument that when the role of the national parliaments is strengthened the democratic influence will increase. 7 Only in one regard was the Swedish government clear: in the area of allocation of competences between the government and the Riksdag. According to the government, this allocation was not to be changed and that in the future, the Swedish government should remain the single representative for Sweden when engaging with other states and interstate organisations.

The consultative organisations and institutions were also mostly in favour of the proposal to strengthen the role of the national parliaments.

5

Directive 2001:35 with additional directives 2001:113 and 2004:79.

See SOU 2004:82.

7 In the first stage, the following documents are: Ds 2003:36, Ds 2003:58, Skr 2003/04: 13 and Ds 2004:52.

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However, there was not a lack of critical voices. The Swedish Agency for Public Management (Statskontoret), the Stockholm Chamber of Commerce, and the Örebro University regarded the proposal as an undermining of the responsibility of the government. The Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen, which at the time had the Swedish name Regeringsrätten), defended the proposal from the Convention with the argument that the opinions of the national parliaments are not binding.

The Riksdag was the last to express their opinion, which, not surprisingly, fell in line with the view of the government.8 It is interesting to note that the Riksdag also shares the view of the government by announcing: “that it is important that the role of the Riksdag in the examination of the subsidiarity is designed in a way that agrees with the allocation of competence between the Riksdag and the government” (page 5), which implies that the Riksdag also considers that there is a limit to the stretch of their authority.

The Swedish preparations were cancelled when the proposal from the Convention for a Constitution was voted down but were re-opened a year later when the heads of States and Governments once again took a grip on the project for a new treaty. Even still, the documents that the Swedish government subsequently produced contained nothing new on this matter for the simple reason that the new proposal for a treaty was in all essence identical with the previous proposal from the Convention. 9 The attitude of the Riksdag also remained the same: no analysing or reasoning and no thoughts on how the examination could be accomplished and to what extent the proposed form was efficient. There was only a confirmation from the Riksdag that the view of the Swedish government was that the national parliament’s role is a crucial aspect of increasing the democratic legitimacy of the EU and that the principle of subsidiarity provides protection against an extensive transfer of competences to the EU. 10 In parallel with this work there was an ongoing effort to find a suitable function for the examination of subsidiarity in the Riksdag. In the first phase, the board of the Riksdag gave the Riksdag Committee the order to 8

See Bet 2003/04: KUU1.

See Skr 2006/07: 85, Ds 2007:48 and Prop. 2007/08: 168. Most of the heavy respondents chose not to comment on the new proposal on the grounds that they have already made their views known when the rejected proposal was circulated for comments.

10 See Bet 2006/07: KUU1 and Bet 2008/09: UU8.

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come up with proposals on how this could be done. The starting point of the Committee was that the Riksdag should play a central and more active role in the handling of EU issues and that all members should be involved.

But the Committee is contradictive because at the same time it emphasised that the Riksdag is not allowed to give its own proposals in the form of announcements. The Riksdag would consequently not be able to tie up the government in a certain issue.

When it comes to the control of subsidiarity, the Committee proposed that it should be dealt with by the Committee on the Constitution, while the committees’ work in respective areas of responsibility should function as a form of preparing authority. Any concrete proposals that the Committee did not have time to table before the EU Constitution were put off until the future vote on the treaty in France and the Netherlands.

The next time the board of the Riksdag took a grip on the issue, they called in a special commissioner.11 In contrast to the Riksdag Committee, the commissioner now proposed that the committees’ work in respective areas of responsibility should take charge of the examination of subsidiarity, while the task of the Committee on the Constitution should be limited to giving a yearly summary assessment of the result of the subsidiarity review. The motive of this was that the subsidiarity examination was a suitability examination and not a legal examination. As the committees’ work in respective areas of responsibility were regarded as having the best knowledge in those particular areas, it felt natural that they should also conduct the assessment.

The commissioner proposed that the specialised committees should also be able to request information from the government and have the right to receive a response within two weeks. The practical significance of this is that the real examination would be done by the government and not by the Swedish parliament.

The proposal stated that the formal handling in the chamber would be carried out as such: if the Committee is of the view that the EU proposal is in conflict with the principle of subsidiarity, they should give an opinion to the chamber with a proposal for a motivated opinion. This should then be sent to the EU. The task of the chamber is limited to saying yes or no to the motivated opinion – any right to bill or amend it would not be allowed. In the case that the committees in their respective areas of responsibility do not regard a proposal to be in conflict with the principle of subsidiarity, it should be noted in the minutes.

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See Investigation 2008/09: URF2 15

When the Riksdag later took a position on the proposal from the Riksdag Board the result was as expected: none or very minor changes to the text. The new tasks the Riksdag was given with the introduction of the Lisbon Treaty were written into a new paragraph in the Riksdag Act chapter 10, paragraph 6. 12

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See Bet 2009/10: CU2 16

4. The outcome of the Riksdag’s own reviews of the principle of subsidiarity Since the Lisbon Treaty came into force the Committee on the Constitution of the Riksdag has carried out three annual reviews of the subsidiarity control of the Riksdag. 13 The reports have raised three questions that have caused concern. The first is the formal handling in the specialised committees. How has it gone, and to what extent have the specialized committees made use of the method developed to standardise the subsidiarity review?

The method includes two steps. The first step is a test of the necessity criterion. Then the question is asked whether it is possible to achieve the goal at a local, regional or national level. The second step is linked to the value-added criterion and then it is to consider whether the goal can be better achieved by action taken at the European Union level rather than at national level. This test focuses on: i) Whether there are important crossborder aspects of the proposed action that cannot be regulated by the Member States. ii) Whether the failure to act at EU level is in conflict with the Treaty or would otherwise significantly damage Member States' interests. iii) Whether an EU measure has clear advantages in relation to a measure on the lower level.

The second question is if the Committee on the Constitution examines how the reviewed proposals affect the allocation of competences between the EU and Member States. Here the Committee on the Constitution sets out somewhat of a helicopter perspective in its review.

The third question of concern focuses on the extent to which the European Commission’s action fulfils the requirements of the Treaty and if the legislative proposal adheres to the principle of subsidiarity. Are these justifications within the purpose and scope laid out in the Lisbon Treaty?

The Committee on the Constitution's annual reviews show that the Riksdag until 31st December 2012 has handled all the legislative drafts which the EU has sent to the national parliaments, a total of 320 proposals.

With that the Riksdag belongs to the most ambitious parliaments in the EU. How these legislative drafts were divided over the years is given in Table 1 below. The table also shows how many proposals caused the Riksdag to give a motivated opinion.

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See Bet 2010/11: KU18, Bet 2011/12: KU4 and Bet 2012/13: KU8 17

Table 1. Number of legislative proposals from the European Union Dec. 1st Time 2009 – period June 30th 2010 Number of 22 scrutinised proposals Number of 0 motivated opinions

July 1st Jan 2010 – Dec. 2011 31st 2010 Dec. 2011 49 124

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1st Jan 1st – 2012 – Dec 31st 31st 2012 125

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Source: Bet 2010/11:KU18, Bet 2011/12:KU4 & Bet 2012/13:KU8 The first review of the Committee on the Constitution happened during the period between the 1st December and the 30th June 2010, a total of 22 cases. In none of the cases the Swedish Parliament found that the principle of subsidiarity had been challenged. One case is worth highlighting however: 14 it concerns a proposal about enhanced cooperation in the area of the law which is applicable to divorce and legal separation. The Swedish Government acknowledged that there were reasons to believe that the proposal was in breach of the principle of subsidiarity. But the government at the same time notified the Parliament that it did not intend to oppose the proposal from the Commission or the Council because of the simple reason that Sweden will not take part in the enhanced cooperation.15 Due to this reason the Committee responsible for this matter did not recommend that the plenary send a motivated opinion.

This stance illustrates how flexible the Swedish government and Riksdag are when they interpret the principle of subsidiarity. Obviously one is prepared to accept proposals that are contrary to the principle, provided that it is not affected by the action.

In the second review report, covering the period 1st July to 31st December 2010, 49 cases were dealt with. Of these, the Riksdag were of the opinion that three were contrary to the principle of subsidiarity but in none of these cases, nor in any of the others provided by the Commission 14

See COM (2010) 105 See Government memorandum 2009/10: FPM86 18

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during the period, did the national parliaments join together to reach up to the critical level required to be able to request a review of the proposal, i.e. to issue the yellow card. 16 The third report presents the outcome of the scrutiny of the Riksdag in 2011. The number of cases had risen to 124, and in ten cases the Riksdag was of the opinion that they were contrary to the principle of subsidiarity.

But again in 2011, the national parliaments did not reach the threshold for obtaining a reconsideration of the proposals from the Commission. 17 In regards to the situation in 2012, the Committee on the Constitution has not yet completed its review but according to internal sources the Riksdag took positions in a total of 125 legislative proposals and sent in 20 cases of motivated opinions that year. According to information from the Riksdag Officers the national parliaments in one case passed the threshold.

This case is the so called Monti II package of labour market measures.1819 Of the 320 proposals submitted by the Commission, and that the Riksdag reviewed due to subsidiarity, since the Lisbon Treaty came into force, only one case passed the threshold of the yellow card. This suggests that only high concern constitutes a proposal to be raised to a third of the national parliamentary chambers which are needed to achieve the lower threshold for reconsideration. This is according to the Committee on the Constitution possibly due to the fact that the contact with other parliaments was inadequate. For without this, it is difficult for the national parliaments to coordinate their views on the Commission's legislative proposals and is thus difficult to achieve the critical number needed to persuade the Commission to reconsider it.

In contrast, the eight weeks period, according to the Committee on the Constitution, seems not to have been any problem. Contacts with the Swedish Government have also worked well in that the Government provided the Riksdag with the facts that they requested within the desired time.

The key findings of the Committee on the Constitution review comes down to the principle of subsidiarity as an instrument of power sharing. Is it effective for this purpose? The Committee on the Constitution refrains 16

See COM (2011) 344 See COM (2012) 373 18 See COM (2012) 130 and Opinion 2011/12: AU14 19 In October 2013 the Riksdag submitted a motivated opinion against the EC proposal for the establishment of an EU Public Prosecutor’s Office. This was the second time a sufficient number of national parliaments issued a motivated opinion (yellow card) on subsidiarity grounds. The proposal was withdrawn, for the time being.

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from giving an overall assessment of the issue, but is at the same time it is also evident in two respects. The first regards the motivated opinions of the Commission that are not submitted in the manner set out in the Treaty, i.e. they do not explain how the proposals are consistent with the principles of subsidiarity and proportionality. This "makes it difficult for the Riksdag to fulfil its Treaty obligations to see that the principle of subsidiarity is followed" said the Committee on the Constitution. 20 The second relates to the transfer of powers to the EU. Several committees in the Riksdag point out that more power would shift to the EU if legislative proposals, which the committee in question considered contrary to the principle of subsidiarity in their reviews, are approved. This conclusion is drawn, for example by the Committee on Finance, the Committee on Taxation, and the Committee on Justice in their opinions to the Committee on the Constitution. 21 The Committee on the Constitution takes note of this and in addition to that the Commission increasingly puts their proposals in the form of a regulation rather than a directive. A regulation is more far reaching than a directive because a regulation is binding in its entirety and thus leaves no room for national flexibility. The review of the subsidiarity should, according to the Committee on the Constitution, therefore also apply to the choice of legislative instrument.

The notion that the principle of subsidiarity is not a barrier for the creeping transfer of power to Brussels, which EU Heads of States and Governments expressed a wish to avoid, is also supported by some observations that the chamber office of the Riksdag have made. 22 The Commission itself does not always follow the rule of the eight-week period applicable for scrutiny by the national parliaments. Until the end of 2012, the chamber office had identified six such cases in which the Commission, due to carelessness, negligence or forgetfulness, did not even announce to the national parliaments that the eight week period for subsidiarity review had begun.

The chamber office also points out that within the EU a doctrine has developed which is based on a kind of nature-bound exclusive authority.

The doctrine should be understood as the EU's own institutions perceiving that certain matters are of such a special nature, that they should be considered as belonging to the areas where the EU has exclusive 20

See Bet 2011/12: KU4, page 41 See Bet 2012/13: KU8 22 These observations are summarized in Bet 2012/13: KU14 20 21

competence, without this being mentioned in the Treaty, and without the Member States giving their active consent to it. The serious nature of this doctrine is that these questions can therefore not be controlled on the basis of the subsidiarity criterion.

Proposals which have been changed should also follow the Treaty and be subject to subsidiarity review. But that does not always happen. Since the Lisbon Treaty came into force, only about half of the amended proposals have been reviewed according to subsidiarity. The chamber office notes politely that there is a sense that the process of subsidiarity has not yet become ingrained sufficiently, but notes, however, that if the Commission itself supersedes the requirements of subsidiarity control, the system will be watered down.

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5. The difficulties with the review of subsidiarity – a discussion about principles

the

The reviews of the Committee on the Constitution shows that the new arrangement which allows the national parliament a responsibility of review of subsidiarity has not prevented the EU from increasing its competences at the expense of the Member States. This is due to a number of factors such as: i) the limitations of parliamentarianism, ii) the wide reach of EU competences, iii) the extensive target directory, iv) the precedence of the interpretation of the Commission. Each one of these factors will be more thoroughly reviewed below.

5.1 The limitations of parliamentarianism The construction to let the subsidiarity control be managed by the national parliaments is based on a misunderstanding; call it love for a constitutional fallacy. Fallacy lies in that the EU member countries have chosen parliamentarianism as a model for its governance. The implication of that is that there is no real dividing line between the legislature power (the national parliaments) and government power, such as is the case in a country with presidential rule like the U.S. Governments then retrieves its mandate from parliament and therefore it is in the nature of things that a parliament is not holding a different view than the government recommend because it would show distrust in the government which the parliament has chosen.

Thus, one cannot and should not expect that the scrutiny carried out by the national parliaments is different from the scrutiny their government would have done. That this is the case is obvious with a majority government. However, with a minority government, the parliament might take a different position than that of the government. But even if that were the case, this difference of opinion will have no practical implication on the outcome of the review of subsidiarity because under the current rules only the Council or the European Parliament can reject a proposal or change it.

This possibility is consequently not given to the national parliaments irrespective of how many of those believe that the measure violates the principle of subsidiarity. But in the Council there are only representatives of the country's governments. In this case there is a contrary view between 22

the parliament of a country and the government of the same country, the balance of power is restored in the Council that existed before the national parliaments made their subsidiarity scrutiny.

Perhaps it is the knowledge that the Council has the right to assess an explanation as to why so far so few national parliaments have sent in motivated opinions on the Commission's proposal. Details about this are notified in the annual reports submitted by the Commission on the outcome of the subsidiarity control. 23 Thus, the Commission received in 2010, 34 critical opinions from national parliaments and of those three were made by the Swedish Riksdag. The remaining 31 critical opinions came from the chambers of other member countries. Altogether, there are 40 in total, more than the number of Member States, but twelve of the opinion originated from a bicameral system. In total, 31 critical observations from 39 chambers meant that less than one critical opinion was sent per chamber.

In 2011, the Commission received a total of 64 critical opinions, ten of which came from the Swedish Riksdag. The remaining 54 critical opinions were then submitted by the other 39 chambers. This was a slight increase when compared to the previous total (average of 1.6 observations per chamber and year). Nontheless, this is still a low figure. The low number may of course be due to the countries' parliaments having found that the proposals from the EU are not in conflict with the principle of subsidiarity.

It may also have been due to the proposals being as such that the national parliaments did not consider that they justified a scrutiny: they were concerned about the approximation of laws rather than brand new legislative proposals.24 A third possibility is that the national parliaments simply did not consider it meaningful to scrutinise them.

In addition to the restriction that parliamentarianism put on the national parliaments discretion, their hands are also tied by the Lisbon Treaty formulations. The national parliaments cannot stop a proposal or force a change of it – they can only ask for a reconsideration – which is hard enough, given that it requires the coordination of the 28 parliaments (also counting Croatia) in a relatively short time. The national parliaments cannot single-handedly bring a case before the ECJ. Only a government of a Member State can do that. This means that the national parliaments have to force a government to require such judicial scrutiny varies between Member States, depending on the position of the National Parliament in the 23

See COM (2010) 547, COM (2011) 344, and COM (2012) 373 The approximation of legislation is an EU-expression with a vague meaning. It should be understood as the harmonisation of national regulations that concerns the internal market.

23 24

Constitution of that state. In Sweden, the rules are such that the Riksdag cannot force the government to do so.

5.2 The wide reach of EU competences Equally important as an explanation for the lack of sharpness of the subsidiarity controls’ is the clause’s material content. The difficulties arising from it are not related to who performs the control, EU institutions or the national parliaments, but apply at whatever level the review is carried out and regardless of which institution does it.

There are many difficulties concerning what the EU’s competences are, particularly the indication that the criteria which states when the EU must act, the principle of legality, has lost its value as a management tool.

According to the principle of legality the EU may act in those areas where it has the authority to do so. These areas are set out in the Treaty on the Functioning of the European Union and there is a distinction between shared and exclusive competence. Article 3 sets out the areas where the EU has exclusive competence to act: a. customs union; b. determination of the competition rules necessary for the functioning of the Internal Market; c. monetary policy for the Member States whose currency is the euro; d. conservation of marine biological resources in the Common Fisheries Policy; e. common trade policy. 25 Article 4.2 outlines which areas have are shared competences: a. internal market; b. social policy, for the aspects defined in this Treaty; c. economic, social and territorial cohesion; d. agriculture and fisheries, excluding the conservation of marine biological resources; e. environment; f. consumer protection; g. transport; h. trans-European networks; i. energy; 25

The Union also has exclusive competence to sign certain international agreements.

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j. k.

area of freedom, security and justice; common safety concerns in public health matters, for the aspects defined in this Treaty.

Having shared competence means that the EU can take measures but it is not obliged to. The Union also has the right to take measures in the field of research, technological development and space policy, as well as in development and humanitarian aid if it does not prevent Member States from exercising their power (Article 4.3 and 4.4).

Moreover, Member States should, under Article 5 coordinate their economic policies and the Union has been given the right to take special measures to ensure that this coordination is accomplished by providing guidelines for this policy.

Finally, Article 6 indicates the areas where the Union has the right to take supportive measures: a. protection and improvement of human health; b. industry; c. culture; d. tourism; e. education, vocational training, youth and sport; f. civil protection; g. administrative cooperation.

Under the provisions of the Treaty, no subsidiarity review should be instigated in areas where the EU has exclusive competence. This means that "only" EU proposals relating to the areas referred to in Articles 4.2, 4.3, 4.4, 5 and 6 are covered by the principle of subsidiarity. But it is apparently a very extensive area where the EU in one way or another shares power with the Member States. In addition, the formulations are vague. From this it can be concluded that when the Lisbon Treaty is not able to draw a clear line beyond which the EU's competences do not extend, the principle of legality loses its value as a management tool. This also makes the scope of the principle of subsidiarity indefinite.

Two recent legislative proposals from the EU highlight the boundary problems. Both concerns tax matters, which according to the Treaty is strictly a national concern. 26 One case involves harmonisation of corporate tax. The EU believes that the proposed measure is not in conflict with the 26 See COM 2011 (121) and Opinion 2010/11: SkU3 and COM (2011) 594 and Opinion 2010/11: SkU12 25

principle of subsidiarity, arguing that it is not about tax as such, but about the tax base. The second proposal concerns the tax on financial transactions. Also in this case, the Commission considered that the proposal was consistent with the principle of subsidiarity with the same arguments as in the case above: it is not related to the tax rate, but "only" the tax base. Additionally, the Commission defended its proposal with the need for the internal market to function efficiently. The Swedish government, however, felt that in both cases the proposals stood in conflict with the principle of subsidiarity and the Riksdag agreed.

Since it is not possible to keep the EU away even from those areas explicitly considered as national affairs, it should not surprise anyone that it is almost impossible to hold this boundary in areas where there are shared competences. The basic rule, according to the Commission, is that: "If the Union and the Member States share competence, the principle (of subsidiarity) prescribes that it is primarily the Member States that should take action." The normal situation is apparent then, according to the Commission, that it is the Member States that should take measures. 27 In practice, however, the EU seems to interpret this provision to their own advantage. An example of this is the tobacco directive which aims to equate the provisions in the Member States for the sale of tobacco products and of their contents. But the directive also contains the prohibition of certain condiments in “snus� (a moist powder tobacco product manufactured and consumed primarily in Sweden and Norway). But snus is not covered by the internal market. Inside the EU, snus is only allowed to be sold in Sweden. Despite this, the Commission refers to the internal market when it justifies its proposal. In this part, the tobacco directive therefore can be seen as an illustration of how the Commission overrides the Treaty provisions.

5.3 The extensive target directory In the context of these problems it is important to mention that any review of subsidiarity is done in relation to the Union’s objectives. In accordance with the principle of necessity a measure should be taken at EU level only if the measure is needed in order to reach an objective. The scope of the

27

See COM (2011) 344. A change seems to be upcoming because while the exact same wording exists in the Commission's 2010 report it is not included in the report for 2012. See COM (2010) 547 and COM (2012) 373.

26

EU's target directory will therefore be crucial for which measures the EU should take.

As early on as Article 3 of the Treaty, we can see what the objectives comprising a rather long list are. 28 The Union's overall objective is to promote peace, its values and the welfare of the people. In addition, the EU should offer its citizens an area of freedom, security and justice without internal borders. The Union should establish an internal market and promote sustainable development based on balanced economic growth and price stability, a highly competitive social market economy, working towards full employment and social progress, and a high level of protection and improvement of the environment.

The Union should also promote scientific and technological advances to combat social exclusion and discrimination, and should promote social justice and protection, equality between women and men, solidarity between generations and the protection of children's rights. Finally, the Union should promote economic, social and territorial cohesion, solidarity between Member States, respect its rich cultural and linguistic diversity, and should ensure that Europe's cultural heritage is safeguarded and developed.

The objectives are not only numerous, they are also worded in such general terms as to be almost all encompassing. This influences the legislative work of the EU because the goals are broadly defined meaning more measures at EU level comply with the criterion of necessity.

A recent example of the importance of these objectives is the Commission's proposal for gender quotas on the boards of stock exchange listed companies. Spontaneously, you might think that this is a national issue, but the Commission wrote in its justification that harmonization is needed to develop the internal market and that gender equality is included as one of the EU's objectives. Additionally it is considered that gender policy is of essential importance for economic growth, prosperity and competitiveness.29 The Swedish government had at an early stage, rejected the proposal and the Riksdag followed the government line and issued a motivated opinion. 30 Interesting to note in this context is that Sweden may actually have shot itself in the foot seeing as the Commission can only put forward 28

More precisely, in the Treaty on the European Union, not to be confused with the Treaty of the European Union's functioning.

29 See COM (2012) 614 30 See Bet 2012/13: CU14 27

a proposal on this issue as a result of the Swedish government fighting hard and succeeding to get the objective of gender equality introduced in the Lisbon Treaty.

New objectives have also managed to sneak in. The justification for the tobacco directive started in order to "protect people’s health." Such an objective is not explicit in the target directory specified in the Treaty.

Possibly it could be taken in under Article 3.1: "to promote the people's welfare."

Another example of this is found in the proposal to impose a ceiling on the cost when using a mobile phone in other countries, so called roaming charges. 31 The Commission justifies its proposal with the need for the internal market to function effectively and to "protect the interests of consumers and businesses in all Member States”. 32 The United Kingdom asked the ECJ to examine whether the proposal was consistent with the principle of subsidiarity. The ECJ sided with the Commission, arguing that the regulation is proportionate to the objective which the Commission refers to: "protect consumers against excessive fees". 33 The EU is entitled under Article 4.2 to take measures to protect the consumer interest, but that does not mean that the Union must take measures. To explicitly protect consumers against high charges are not included in the Treaty target directory, but is an objective that the Commission itself found out and has seen as necessary for the internal market to function smoothly.

5.4 The first right of interpretation of the Commission If possible, even more difficult problems which need to be addressed are related to the question of the first right of interpretation and the burden of proof. Under Article 5 of the Treaty on the European Union “…the Union shall act only if and insofar 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.”

This article conjures many difficulties. First of all, what is meant with the word sufficiently? What degree of the fulfilment of objectives is 31

Regulation (EC) No 717/2007 See COM (2008) 580 33 Case C-58/8: Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile International AG, Orange Personal Communications Services Ltd v Secretary of State for Business, Enterprise and Regulatory Reform.

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desirable and what costs are acceptable to achieve the objectives? For example, is it to secure fairness? Here it is not just a question about economic costs but also about democratic costs. The benefits of increased fulfilment of objectives must also be weighed against the cost of reduced national influence. But the rules for how this weighing of cost and revenue should be done are completely absent from the Treaty, so the conclusion is that only the "revenue side" of a measure counts. Who has, second of all, the burden of proof? Is it the task of the Commission to show that the objectives will be better achieved when a measure is taken at EU level, that the measure must be taken in order to allow the objectives to be achieved and that the measure is well balanced or is it the national parliaments task to establish that this is not the case? 34 The difficulties here are huge, not least to assess the impact a planned measure can have, it is like an assessment of the future of which we know nothing. The challenge is also that an assessment of a measure's effect involves many aspects, often conflicting, and effects are visible on many levels. This perspective makes the task of producing a reliable impact analysis entirely impossible - especially as there is no explicit criterion/dimension to measure the outcome against. An example of such a criterion could be "the maximum socio-economic welfare". The rule of thumb is that the measure should be taken at the level where the socioeconomic outcome is the highest, provided that there is a socio-economic benefit of taking the measure. But without closer precision, what should apply here? The value-added criterion cannot be used as a control device.

Both when it comes to interpretation and providing evidence, the Commission has a significant lead in relation to the national parliaments. It has unlimited time at its disposal - the Commission determines itself when a proposal should be submitted and does not need to think of any coordination with other institutions. The Commission also has more resources to use. Already in 2006, a Consequence Committee was installed in the EU in order to better assess the consistency of the Commission's proposal. A thought provoking point when compared to the eight weeks that the national parliaments have to use! In regards to the Swedish Riksdag, no extra resources have been allocated in order for it to cope with the reviewing process.

34

There has been a lack of clarity about whether the principle of proportionality is included in the review of subsidiarity. See Bet 2010/11: KU18 page 22. See also Hettne (2003).

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The opening words of the Lisbon Treaty leave much room for interpretation and it is in this light that the Commission's justifications should be seen. Reflecting the Commission's views on the principles of necessity, value added and proportionality are keys in the review of subsidiarity and vital for the possibility of national parliaments to effectively respond to the Commission's opinion.

However, according to the opinion of the Riksdag, the Commission's justifications are flawed. While the Commission has improved somewhat in the sense that more proposals are provided with a justification, this justification is still insufficient, and more importantly how does the Commission justify its proposals. Do they have any substance or are they just loosely stated formulations?

In order to explore this, I examined eight legislative proposals submitted by the Commission to the national parliaments in 2012. The eight proposals are not random as they all have one thing in common: that the Riksdag chooses to "draw the emergency brake" and provide a critical opinion in them all. 35 The examples are admittedly small, indicating that some caution in interpretation should be borne in mind, but the pattern is still clear: the Commission's justifications of the subsidiarity issue are more or less without substance. There are several examples.

There is a proposal to establish a joint fund to help the most deprived people in the EU. The Commission justification for why this proposal requires action at EU level was that poverty is widespread and that there are unacceptable differences between Member States. Further to this, it is pointed out that the economic crisis has exacerbated these social problems to such an extent that the Europe 2020 strategy objectives are at risk of not being reached. It is not included in the EU's target directory to equalise the differences between the Member States or to explicitly meet the Europe 2020 strategy.

The tobacco directive is justified by saying that the objective of the proposed action cannot be reached at either the national or regional level.

However, the Commission refrains from explaining why this is the case but simply says it is satisfactory to note that it is difficult for a Member State to make their own arrangements when other Member States do not have the same rules. In the issue of proportionality, the Commission stated: “This proposal allows Member States an appropriate implementation margin” and “It is a balanced proposal that is both ambitious and takes into account the legitimate interests of concerned stakeholders”. However, the 35

See COM (2012) 617: 788: 614: 380: 372: 363: 576: 511 30

Commission refrains from showing that this is actually the case, let alone strives to prove it.

The argument justifying the roadworthiness test in the motor vehicles directive is just as vague. The directive aims to establish common provisions in the Member States on roadworthiness tests of motor vehicles in order to improve road safety and protect the environment. Here the Commission justifies its proposal with the following: “The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reason: the technical requirements for roadworthiness testing have been set on a minimum level at the Union level and their implementation by Member States has led to a high diversity in the requirements throughout the Union with negative impacts on both road safety and the internal market.”

Evidence that says this is the case does not exist. The Commission does not mention how measures taken by the Member States themselves would turn out, and the consequences that, in this case, would have entailed.

In the roadworthiness tests of motor vehicles directive there is also an explanation why the measure complies with the principle of proportionality. The Commission has written the following about this issue: "As showed in the impact assessment, the proposal complies with the proportionality principle because it does not go beyond what is necessary in order to achieve the objectives related to the increase of road safety and environmental protection by increasing the quality and strengthening of roadworthiness testing and creating the appropriate framework for a seamless flow of information.” But does anyone understand what the Commission exactly intends by this description? Or how the decision is proportionate to the objective of the Union? It is also noteworthy that despite the EU's comprehensive target directory, it does not include the objective which the Commission refers to in the directive to promote increased road safety.

The Commission justifies its proposal to introduce common rules for the access to genetic resources, with: “A legally binding EU-level intervention on user-compliance is justified as it avoids negative effects on the internal market in nature-based products and services that would result from a fragmentation of user-compliance systems in the Member States and also has the best performance as regards to the creation of an enabling context for research and development on genetic resources with benefits for the conservation and sustainable use of biological diversity 31

worldwide.” 36 Yet another justification full of incomprehensibility but with the total absence of concreteness. How does a national parliament argue against this?

The proposal to allow the ECB to supervise credit institutions was not justified any better. This is illustrated by the following quote and my own comments are given in italics in between the brackets: “The objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore be better achieved by the EU” (this is a loose assertion which has not been demonstrated). “Recent events have clearly demonstrated that only supervision at the European level can ensure the appropriate oversight of an integrated banking sector and a high level of financial stability in the EU and the Euro area in particular” (there are no such studies and none can be demonstrated). “The provisions of this proposal do not go beyond what is necessary to achieve the objectives pursued” (such an analysis is completely missing in the documents).

These examples show that the Commission, as justification for measures to be taken at EU level, just states that its proposal is consistent with the principles of subsidiarity and proportionality. There is no evidence provided showing that this is the case and the Commission's assessments are based on sweeping statements and unproven assertions. Alternative solutions to proposed measures or cost calculations of these measures are also not provided. The reader is not only left in suspense about the net effect of the proposed measures, but also about the net effect of alternative solutions.

The lack of detailed analysis thus puts national parliaments in a hopeless situation, because if they intend to respond to the Commission’s positions they are forced to respond to the sweeping assertion without any concrete answer.

36

See COM (2012) 576 32

6. What can be done?

The rules for the control of the subsidiarity contain many visible and considerable system faults. They are so loosely formulated and contain so many thresholds for the national parliaments to pass that it appears as almost impossible to go down this road and to stop a proposal from EU. To increase the efficiency in this instrument, measures must be taken that strengthen the role of the inspector, which is the national parliaments, and sharpens the material context of the principle of subsidiarity.

Measures can also be taken at various levels: changes in the treaty itself, reformist measures at the Brussels level and reformist measures at the national - Swedish - level.

But no matter what changes are discussed, they are difficult to implement because they touch the very core of all political work - and here the EU cooperation is no exception - the distribution of power. A stronger subsidiarity control moves power away from any of the EU institutions to each one of the Member States. But it also moves the power from the national governments to the national parliaments. It also makes it harder for the EU to take decisions: the EU is therefore less effective, contrary to the wish list of the Laeken declaration. To believe that a sharper subsidiarity control can be done without encountering resistance therefore seems highly unlikely.

6.1 Reforms at Swedish level Let me start with those reforms that do not require any involvement of the EU. These reforms are also the easiest to implement. This concerns the Swedish Riksdag's own work. The first relates to the actual review. Under the current rules the review is carried out by the Cabinet of the government. It can superficially be seen as a resource issue, because the Riksdag was not given any additional resources when responsibility for the subsidiarity review was put in its hands.

A better arrangement would therefore be for the Riksdag to be allocated the necessary resources so that they can carry out the subsidiarity review themselves.

The second reform concerns the work of the ECJ. Under the current Treaty only governments of the Member States have legal standing at the ECJ. As written in the Swedish Constitution, the Riksdag cannot force the government to submit a case, only ask it to do so. One alternative to this 33

arrangement would be that the Instrument of Government in the Swedish Constitution would be changed so that an announcement by the Riksdag in a subsidiarity issue would force the Swedish Government to bring a case to the ECJ. Some might argue that such a move impinges on the constitutional division of tasks between government and parliament - where the Riksdag's mandate is limited to responding to the Government's proposals and not to enforce any of its own. Meanwhile, the Constitution gives the Riksdag the opportunity to express an opinion of its own by way of an announcement.

Therefore, it is ultimately about what content should be given in an announcement. Both of these proposals give the Riksdag a greater say in the review process, and would be more in line with the intentions of the Lisbon Treaty. The decision to transfer the review to the national parliaments was aimed at involving them more in the legislative process of the EU but then this ambition should not be cheated away when the national parliaments, as in the Swedish case, are transformed into messengers for their governments.

6.2 Reforms at EU level Possible reforms at EU level are about increasing the demands on the Commission's justifications. It is not reasonable that such low demands are posed on their content and accuracy, especially as it seems that the Commission has a precedence of interpretation. It should not be enough to say that a measure is necessary and adds some value; it must also be proved to be the case and it should be the task of the Commission to prove in each case if there should be any weight at all to the Treaty’s Article 4.1 which refers to competences not conferred upon the Union in the treaties as belonging to the Member States. The justifications must also include an estimate of the cost of the measure. Not at least because it is important that the "democratic cost", i.e. the cost of reduced national sovereignty, local autonomy and the opportunity for accountability are highlighted. The potential economic added value must therefore be related to the democratic cost. The impact assessment must also include a description of the alternatives: what are they, what degree of fulfilment of the target they could generate and what the costs are.

It should also be clear that the Commission has an obligation to provide relevant information which contains the components discussed above. The immediate consequence of this will be that legislative proposals will 34

automatically be considered to conflict with the principle of subsidiarity if any justification is missing or is substandard. 37 Another reform is about the demands for clarification of certain concepts, especially the concept of the internal market. As the situation has now taken shape, it appears that the Commission has put an equal sign between the internal market and the identical rules which has given the Commission the "right" to take measures on virtually all areas and to begin the harmonisation of the conditions that go far beyond what is necessary for the internal market to function and what the Member States intended.

Under the current system when doubts arise, the question should be referred to the ECJ who regularly have reached the same position as the Commission. The justification of policy is a general problem and there are different opinions about how serious it is. But the fact is that interpretation of one central aspect of EU co-operation has been handed over to the ECJ and I believe this is deeply unsatisfying to most of us.

Therefore, Member States should jointly take the initiative to develop a clear praxis of how much harmonisation of the internal market is required for the freedom of movement. For the issue of harmonisation is not a legal issue but a political one. The clarification could be made in the Treaty by choice, but then the task immediately becomes more difficult because we are into the field of treaty change.

6.3 Changes of the Treaty Ultimately, the effectiveness of the subsidiarity control is determined by EU competences and targets from the EU. If these are generous in scope, it becomes difficult to stop a proposal by invoking the principle of subsidiarity. To limit the competences of the EU and to downsize the level of ambitions requires changes to the Treaty, which Member States would rather avoid because it is time consuming and usually provokes popular protests. However, the fear of treaty changes are probably exaggerated here because it is now the case that changes are aimed at safeguarding national sovereignty, not to erode it. These usually do not arouse popular protests.

This is possibly the circumstance that explains why these changes have not come about. Another reason is that having less areas of competence for the EU to reside over usually is viewed by the EU’s strongest proponents as something that would reduce the EU’s decision-making efficiency. All treaty changes made over the past 20 years have intended to increase the 37

Corresponding proposals was given by the parliament in the report 2012/13: KU14.

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efficiency of EU decision-making and so far it is the emphasis on efficiency that has prevailed over subsidiarity.

But here two issues have been mixed up. Having the right to act in a large area of policy is not the same thing as the Union becoming more efficient. Effectiveness is tied to how easy it is to reach a decision, something that varies depending on the decision-making processes.

Unanimous decisions are more difficult to reach compared to simple majority decisions. Also, a rule that says that a measure should be approved by both the European Parliament and the Council is, of course, far more cumbersome than one that just needs the decision taken by the Council. Consequently, there is not a contrast: to reduce the scope of the EU's competences and make the EU less effective.

To reduce the EU’s level of ambition is also complicated by senior politicians who, in their political home arena, defend the EU's very existence with its ambition to “do good.� In order to calm a generally EUsceptical electorate, it is tempting for a government to give the EU more aims to promote the particular targets that are consistent with the domestic opinion. The Swedish effort to introduce a "gender equality" target in the Lisbon Treaty speaks for itself.

Is it really reasonable that among the EU objectives, one can find the goal of creating justice and gender equality? Is it really a task for the EU to take measures in areas such as culture, tourism and public health?

Other amendments of the Treaties relate to the mandate of the reviewer.

Why let the national parliaments be responsible for the subsidiarity control when they cannot influence the actual outcome of the trial? In one of the working groups of the Convention it was discussed that the possibility of introducing a provision that if two thirds of the national parliaments considered that the proposal was contrary to the principle of subsidiarity, it would fall. However, the proposal did not materialise. Even still, it should certainly be considered.

If for no other reason than that it would increase the interest of the parliaments to perform the review. Using the same logic, the current right to have a proposal considered by the ECJ should be transferred from the Member States (or more accurately from their governments) to their parliaments so that they should not have to go through their government.

The probability that these outlined changes that directly affect national parliaments would gain support in the Member States is probably not very good for they would move political power at home from the government of the country to its parliament. Why would a government give up power voluntarily? What ultimately makes such an arrangement unrealistic is that 36

it ends up on a collision course with the basic logic of parliamentarianism and that Member States would be represented by both their government and the parliament.

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7. Concluding viewpoints When the Lisbon Treaty came into force the expectations were high. With this Treaty clear borders for the competences of the EU would be established. The democratic deficit would be eliminated, or at least be heavily reduced, the national parliaments would become involved in the work of the EU in a more active way than previously and all this would be reached through the changes in the control of the subsidiarity principle.

But the question was whether the architects of the Treaty really had intended for the principle of subsidiarity to be a real limit to the power of the Union. Probably not, because then this clause would not have been formulated so broadly that in practice all proposals could pass the subsidiarity control. The competences of the EU are so broad, its goals so inclusive and the criteria for when a proposal is contrary to the principle of subsidiarity so imprecisely worded that the clause lacks all the prerequisites to be a barrier to the transfer of new powers from the Member States to the EU. It seems unlikely that the intent of the new treaty really was to give national parliaments a more prominent role. If this was the case, the provisions for the review of subsidiarity would not have been designed so that national parliaments cannot put force behind their reviews.

The arrangement to allow national parliaments to be responsible for the subsidiarity review, in order to increase the EU's democratic legitimacy, was an expression of either a lack of understanding or a deliberate diversion to get the EU to appear more democratic than it is. Under the basic logic of parliamentarianism, the parliament and the government behave more as Siamese twins rather than as checks on each others powers.

The belief that parliaments would reach a different position than the one their government representatives supported in the Council is therefore naive and falls on its face. Even if they begin the procedure of review, it has no legal effect whatsoever. The Commission’s proposals can only be stopped by the Council or the European Parliament, never by the national parliaments.

The belief that the principle of subsidiarity was not taken seriously can also be noticed when considering how the Lisbon Treaty was implemented in Sweden. The Riksdag was not allocated resources to carry out the review and instead was made completely dependent on the government’s analysis.

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Neither was the Riksdag given any tools to be active and take own its initiatives with. Government documents to the Riksdag on this matter clarify that: “it is the government alone that represents Sweden internationally.”

To change the permanent structure is very difficult, but the difficulty lies not at the legal or technical level, but on the political one. The transfer of competences from the EU to the national parliaments cannot be done by any other means than by the EU institutions and/or the governments of the Member States who are deprived of their power and influence accordingly.

The EU institutions cannot be expected to voluntarily give up this influence, just as Member State governments won’t voluntarily release their grip over their country's relationship with the EU. It is also unlikely that the political leaders in charge will support an initiative that makes it harder for the EU to reach decisions just because they want to strengthen the national parliaments. After all this idea is considered to make the EU less efficient and risks reducing its credibility.

This creates an insoluble conflict, with the consequence that the targets which EU policymakers said they would like to achieve with the Lisbon Treaty did not have any prerequisites to success. The Lisbon Treaty did not reduce the democratic deficit and it does not hinder the continuing centralisation of power to the EU ̶ a further erosion of the Riksdag's role as “the foremost representative of the people.”

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8. Literature Direktiv 2001:35, Kommitté för debatt om Europeiska unionens utveckling och framtid inför 2004 års regeringskonferens.

Direktiv 2001:113, Tilläggsdirektiv till EU 2004-kommittén.

Direktiv 2004:79, Tilläggsdirektiv till EU 2004-komittén.

Departementspromemoria 2003:36, Europeiska Konventet om EU:s framtid.

Departementspromemoria 2003:58, Remissvar.

Departementspromemoria 2004:52, Fördraget om upprättande av en konstitution för Europa.

Departementspromemoria 2007:48, Lissabonfördraget.

Hettne, J, 2003, Subsidiaritetsprincipen: Politisk granskning eller juridisk kontroll, rapport nr 4, SIEPS. COM(2008)0237, Annual report 2007 on relations between the European Commission and national parliaments COM(2008)0580, Regulation of the European Parliament and of the Council amending Regulation (EC) No 717/2007 on roaming on public mobile telephone networks within the Community and Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services COM(2010)0105, Council regulation (EU) implementing enhanced cooperation in the area of the law applicable to divorce and legal separation COM(2010)0547, Report from the Commission on subsidiarity and proportionality (17th report on Better Lawmaking covering the year 2009) COM(2011)0121/4, Council directive on a Common Consolidated Corporate Tax Base (CCCTB) COM(2011)0344, Report from the Commission on subsidiarity and proportionality (18th report on Better Lawmaking covering the year 2010) COM(2011)0345, Report from the Commission annual report 2010 on relations between the European Commission and national parliaments COM(2011)0594, Council directive on a common system of financial transaction tax and amending Directive 2008/7/EC COM(2012)0130, 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 40

COM(2012)0363, Directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law COM(2012)0372, Directive of the European Parliament and of the Council on collective management of copyright and related rights and multiterritorial licensing of rights in musical works for online uses in the internal market COM(2012)0373, Report from the Commission on subsidiarity and proportionality (19th report on Better Lawmaking covering the year 2011) COM(2012)0375, Report from the Commission annual report 2011 on relations between the European Commission and national parliaments COM (2012)0380, Regulation of the European Parliament and of the Council on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC COM(2012)0511, Council regulation conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions COM(2012)0576, Regulation of the European Parliament and of the Council on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union COM(2012)0614, Directive of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures COM(2012)0617, Regulation of the European Parliament and of the Council on the Fund for European Aid to the Most Deprived COM(2012)0788, Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products Regeringens faktapromemoria 2012/13:FPM51, Reviderat tobaksdirektiv.

Regeringens faktapromemoria 2012/13:FPM33, Könsfördelningen i bolagsstyrelser.

Regeringens faktapromemoria 2009/10:FPM76, Fördjupat samarbete om val av lag för skilsmässa.

Regeringens proposition 1997/98:58, Amsterdamfördraget.

Regeringens proposition 2007/08:168, Lissabonfördraget.

Regeringens skrivelse 2003/04:13, Europeiska konventet om EU:s framtid.

Regeringens skrivelse 2006/07:85 Årsboken om EU. Riksdagens betänkande 1997/98:UU13, Amsterdamfördraget.

Riksdagens betänkande 2002/03:KUU1, Utgiftsområde 1 Rikets styrelse.

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Riksdagens betänkande 2002/03:KUU2, Vissa Tobaksfrågor (vilande grundlagsförslag och följdlagstiftning).

Riksdagens betänkande 2002/03:KUU3, Riksdagen inför 2000-talet (vilande grundlagsförslag).

Riksdagens betänkande 2003/04:KUU1, Europeiska konventet om EU:s framtid.

Riksdagens betänkande 2005/06:KU21, Riksdagen i en ny tid.

Riksdagens betänkande 2006/07:KUU1, EU:s fördrag.

Riksdagens betänkande 2009/10:KU2, Tillämpningen av Lissabonfördraget i riksdagen.

Riksdagens betänkande 2010/11:KU18, Uppföljning av riksdagens Tillämpning av subsidiaritetsprincipen.

Riksdagens betänkande 2011/12:KU4, Uppföljning av riksdagens Tillämpning av subsidiaritetsprincipen.

Riksdagens betänkande 2012/13:KU8, Uppföljning av riksdagens Tillämpning av subsidiaritetsprincipen.

Riksdagens betänkande 2012/13:KU14, Subsidiaritet och proportionalitet.

Riksdagsstyrelsens framställning 2005/06:RS3, Riksdagen i en ny tid.

Riksdagsstyrelsens framställning 2008/09:RS4, Tillämpning av Lissabonfördraget i riksdagen.

SOU 2004:82, Sluta Strunta i EU, Fritzes, Stockholm.

Utlåtande 2010/11:SkU3y, Kommissionens förslag till EU:s egna medelsystem för perioden efter 2013.

Utlåtande 2010/11:SkU12, Subsidiaritetsprövning av kommissionens förslag om skatt på finansiella transaktioner.

Utlåtande 2011/12:AU14, Subsidiaritetsprövning av förslag till Monti IIförordning.

Utlåtande 2012/13:SoU17, Subsidiaritetsprövning av kommissionens förslag till reviderat tobaksdirektiv.

Utlåtande 2012/13:CU14, Subsidiaritetsprövning av direktivförslag om en jämnare könsfördelning bland icke verkställande styrelseledamöter i börsnoterade bolag.

Utlåtande 2012/13:SoU8, Subsidiaritetsprövning av kommissionens förslag om fonden för europeiskt bistånd till dem som har det sämst ställt.

Utredning 2008/09:URF2, Tillämpningen av Lissabonfördraget i riksdagen.

Utredning 2010/11:URF2, Riksdagens arbete med EU-frågor.

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With the Lisbon Treaty, clear borders would be drawn for the competences of the European Union.

The democratic deficit would be eliminated and the national parliaments would be involved in the work of the European Union. All this would be accomplished through changes in the subsidiarity control.

But the competences of the EU are so wide, its targets so ambitious and the criterions when a proposal is in breach of the principle are so imprecisely formulated that this control lacks all prerequisites to stop the transfer of new competences to the EU. It appears unlikely that the purpose of the new Treaty really was to give the national parliaments a more profiled role because the regulations for the scrutiny of subsidiarity would not have been designed in way that the national parliaments cannot put power behind their words.

The arrangement to let the national parliaments be responsible for the scrutiny of the subsidiarity appears then only as a decoy, a way to make the EU appear more democratic than it is.

This report is published by the EUD, a pan-European alliance of EU-critics, reformists and opponents of EU membership.

The EUD opposes further centralization of power to Brussels and wants powers transferred back to national and regional parliaments and decisions taken as close as possible to the citizens.

The EUD does not take a position on left-right policy issues – this is a matter for democratically elected national parliaments.

Within the EU we work for increased transparency, accountability, subsidiarity and effective democratic control.

Anne-Marie Pålsson, Docent and Adjunct Professor in Economics at Lund University. In 1983 she wrote her dissertation on regulations on capital markets and for several years she worked as a researcher and teacher at the Department of Economics, Lund University.

In 2002 she was elected as a Member of the Swedish Parliament for the Moderate party and worked in the Parliament until the 2010 election. She describes her experiences in the Parliament in her 2011 book “Knapptryckarkompaniet.”

Anne-Marie Pålsson is also the initiator of the much debated proposal allowing tax-deductible purchases of domestic services. In this area of research she has published the book “Finns det en marknad för hemarbete.”

EUD

For more information about the EUD, including how you can help us succeed in restoring democracy in Europe, please visit:

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eudemocrats.org & europeans4democracy.org

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