National parliaments and the subsidiarity principle
The principle of subsidiarity is enshrined in Article 5 of the Treaty on European Union, which dates from 1992. Since 2009 national parliaments have had the power formally to raise concerns about whether proposals for EU laws comply with the principle. These powers, embodied in the so-called ‘yellow card’ procedure, are set out in Protocol 2 to the Treaties.
In essence, each national parliament (or, in bicameral parliaments, every chamber of a national parliament) can issue a ‘reasoned opinion’ when it considers that a proposal breaches the subsidiarity principle. The reasoned opinions must be issued within 8 weeks of the proposal being published. If enough reasoned opinions are issued the European Commission must review the proposal.
How does the procedure work?
Each reasoned opinion counts as a ‘vote’. Each Member State is given two votes, which means that in the UK, which has a bicameral parliament, the House of Lords and the House of Commons each have one vote; in unicameral systems the one chamber has two votes. If one third or more of the total number of votes (19 votes out of the total of 56) are cast against a specific proposal, a ‘yellow card’ is played, and the European Commission must review the proposal. Following its review, the Commission must decide whether to maintain, amend or withdraw the proposal.
For legislation relating to justice and home affairs matters the threshold for triggering a yellow card is one quarter of the total number of votes (14 out of 56). The procedure is in other respects the same.
In the House of Lords, a reasoned opinion must be agreed by the House as a whole, normally following publication of a report from the EU Committee in which the issues are explained in full.
What happens after a ‘yellow card’ is played?
The threshold for a yellow card was reached for the first time in May 2012 on a proposed Regulation seeking to balance the right to strike with the rules on the internal market, also known as ‘Monti II’. In September 2012, the European Commission withdrew the proposal, citing the degree of opposition amongst Member States and in the European Parliament, rather than the views of national parliaments.
The threshold for a yellow card was again reached in October 2013, in relation to a Commission proposal to establish a European Public Prosecutor's Office. On this occasion the Commission quickly decided to maintain its proposal, without amendment.
In its report on 'The Role of National Parliaments in the European Union' the EU Committee concluded that ways should be found to make the reasoned opinion procedure more effective, and recommended that "the Commission should make an undertaking that, when a Yellow Card is issued, it will either drop the proposal in question, or substantially amend it in order to meet the concerns expressed."
House of Lords’ Reasoned Opinions
The House of Lords has so far issued seven reasoned opinions, in each case following publication of a report by the EU Committee. The seven reports are as follows: