N° 456
SÉNAT
SESSION ORDINAIRE DE 2017-2018
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Enregistré à la Présidence du Sénat le 20 avril 2018 |
RAPPORT D'INFORMATION
FAIT
au nom de la commission des affaires européennes (1) sur la contribution du Sénat au groupe de travail « Subsidiarité et proportionnalité » de la Commission européenne ,
Par MM. Jean BIZET, Philippe BONNECARRÈRE et Simon SUTOUR,
Sénateurs
(version anglaise)
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(1) Cette commission est composée de : M. Jean Bizet, président ; MM. Philippe Bonnecarrère, André Gattolin, Mmes Véronique Guillotin, Fabienne Keller, M. Didier Marie, Mme Colette Mélot, MM. Pierre Ouzoulias, Cyril Pellevat, André Reichardt, Simon Sutour, vice-présidents ; M. Benoît Huré, Mme Gisèle Jourda, MM. Pierre Médevielle, Jean-François Rapin, secrétaires ; MM. Pascal Allizard, Jacques Bigot, Yannick Botrel, Pierre Cuypers, René Danesi, Mme Nicole Duranton, MM. Thierry Foucaud, Christophe-André Frassa, Mme Joëlle Garriaud-Maylam, M. Daniel Gremillet, Mme Pascale Gruny, Laurence Harribey, MM. Claude Haut, Olivier Henno, Mmes Sophie Joissains, Claudine Kauffmann, MM. Guy-Dominique Kennel, Claude Kern, Jean-Yves Leconte, Jean-Pierre Leleux, Mme Anne-Catherine Loisier, MM. Franck Menonville, Georges Patient, Michel Raison, Claude Raynal, Mme Sylvie Robert. |
FOREWORD
On 1 March 2017 the European Commission presented its White Paper on the Future of Europe by 2025 1 ( * ) . This document explores different approaches for the future of the European Union after the planned exit of the United Kingdom on 30 March 2019. It provides a basis for the political contribution that the Commission must submit to the European Council on the future of the European Union which will meet in Sibiu (Romania), on 9 May 2019.
According to one of the scenarios presented, entitled Doing Less More Efficiently (scenario 4), the European Union should increase its efforts in certain areas, and at the same time cease acting or intervene less in the areas where its action is perceived as having more limited added value or not having delivered the promised results.
It was with this in mind that on 18 January 2018, the European Commission implemented a Task Force on Subsidiarity and Proportionality 2 ( * ) . This working group is composed of six members: three representatives from national parliaments appointed by the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC) and three representatives from the Committee of the Regions 3 ( * ) . It is chaired by Mr Frans Timmermans, First Vice-President of the European Commission. Three tasks were assigned to it:
- to determine if the procedures put in place regarding subsidiarity are working and to explore enhancement options;
- to define the areas in which the European Union should intervene and those which should be dealt with at a national and regional level;
- to better involve regional and local authorities in the European legislative process.
The Task Force should report on its findings by the summer. The findings of its work will be fed into the Commissions contribution at the European Council in Sibiu, under the Romanian presidency.
Since the entry into force of the Lisbon Treaty, the national parliaments have been able to develop a certain amount of expertise in the area of subsidiarity. Protocol N° 2 annexed to the treaty gives them the right to scrutinise draft legislative acts in order to verify their compatibility with the principle of subsidiarity. Regular monitoring has allowed our committee to evaluate the procedure itself and to recommend certain improvements as described in this report.
More broadly, the British referendum on the UK leaving the European Union causes us to reflect on the sphere of activity of the European Union. Although Brexit may reinforce the need for unity and cohesion, is must not overshadow the difficulties related to the functioning of the Union, in particular its lack of clarity and proximity to its citizens linked in part to a form of bureaucratic mindset and to the legislative inflation that could ensue. A certain scepticism in public opinion has increased and the European political project has not, as yet, secured the wholehearted approval of the Member States. Added to this area of lack is a certain propensity to the Brusselisationof national failures. The emerging image of European Union is inevitably blurred, thus raising the question of the added value of its action. The question of a clearer division of powers and respect for the principle of subsidiarity is now more than ever at the heart of the discussions on the relaunch of the European project.
All shared exercises in sovereignty must be carried out as a practical response to specific needs. These shared exercises should not be imposed on Member States and should be treaty based and not based on a federalist reading of them. The Union remains primarily a federation of Nation States and not a Federal State in the traditional sense. The objective of the building of Europe cannot be reduced to one of uniformity. Harmonisation and convergence leaves a margin of discretion to Member States.
Greater respect for the principle of subsidiarity at a European level raises greater awareness of diversity, but also facilitates awareness of the expectations of the economic players concerning any new European standards. The aim is to balance political time and economic time, the latter often moves more quickly than the former. However, the concept of subsidiarity should not be confused with a rigid vision of sovereignty. If subsidiarity has become, and with good reason, an important political tool, it should not depart from its original aim, that of facilitating European Union action when the circumstances do so require and ensuring that public policy is not implemented in isolation within each Member State.
This report outlines the areas in which the action of the European Union should be strengthened and those in which it should only act in support of Member States. It is based in part on the proposals contained in the report by the Senates monitoring group on the withdrawal of the United Kingdom and the rebuilding of the European Union, published in February 2017 4 ( * ) .
I. SUBSIDIARITY CHECK BY THE NATIONAL PARLIAMENTS: A PROCEDURE REQUIRING REVIEW
Since the entry into force of the Lisbon Treaty on 1 December 2009, the Senate Committee on European Affairs has scrutinised over 700 texts, equal to a hundred texts per year. A specific procedure was implemented, informing all the political groups. A meeting of a working group involving a representative of each of these groups is organised approximately every three weeks, to review the texts transmitted by the Commission in regard to monitoring subsidiarity and, where appropriate, to explore follow-up actions. This measure led to the adoption of 28 reasoned opinions, relating to 33 texts in all.
The majority of sectors have been subject to intervention by the Senate, these include justice and home affairs, energy, agriculture, health, social affairs, financial services, Economic and Monetary Union, single market, environment, culture, transport and taxation. It is not a case of a vision limited to certain fields but of a thorough analysis to establish if any justification, on the grounds of exclusive powers, references to the single market or the cross-border nature of the envisaged action, is well founded.
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The subsidiarity check by the national parliaments Protocol N° 2 on the application of the principle of subsidiarity and proportionality establishes the supervisory provisions governing subsidiarity. Only European legislative acts, as defined by the Treaties, are subject to the scrutiny of national parliaments, in essence these are regulations and directives. This amounts to standard-setting texts that apply to all Member States, which is why national parliaments need to know about them. In contrast, decisions, recommendations, advice, working documents and Commission communications are not subject to a reasoned opinion or an appeal to the Court of Justice on the grounds of violations of the subsidiarity principle. Under the terms of the Protocol, the subsidiarity check can be brought by the parliaments at two stages of the legislative procedure. Firstly, they can adopt a position before the adoption of a legislative act by the European institutions by alerting the aforementioned to the non-compliance of a draft act with the principle of subsidiarity. National parliaments have eight weeks from the transmission of the draft to carry out prior checking. If a third of national parliaments issue a reasoned opinion on the same legislative proposal, it must be reviewed by the European institution concerned, who may then decide to maintain, modify or withdraw its proposal. This threshold is lowered to a quarter of national parliaments for draft legislative acts in the field of judicial and police cooperation in criminal matters. This is known as the yellow card. To calculate these thresholds, each unicameral parliament has two votes, and in a bicameral system, each chamber has one vote. If half of the national parliaments issue a reasoned opinion on the same legislative proposal, which requires adoption under the codecision procedure, the European Commission must review the proposal and decide to maintain, modify or withdraw it. If it chooses to maintain it, the European Parliament and the Council should, before completing the first reading, verify the conformity of the text with the principle of subsidiarity. If the European Parliament, by a majority of the votes cast, or a majority of 55% of Council members believe it to be non-compliant, the legislative draft shall be considered rejected and shall not be given further consideration. This is known as the orange card. This mechanism has not as yet ever been used. The national parliaments can finally intervene in the legislative procedure. In the two months following the adoption of a legislative act, any national parliament may lodge an appeal before the Court of Justice of the European Union. The Court will then rule on the conformity of the act with the principle of subsidiarity. This is known as the red card. No such appeal has as yet been lodged. |
This regular monitoring of subsidiarity has helped to evaluate the procedure itself. It seems there is scope for substantial improvement. In order to improve the quality of monitoring, a number of different courses of action are possible. They have already been discussed within the framework of the Conference of European Affairs Committees (COSAC) which meets biannually, European Affairs Committees of the national parliaments of the Member States.
Three options must be defended: the review of the timetable for the examination of texts in order to facilitate in-depth dialogue between the national parliaments and the European Commission, the extension of the scope of the examination of texts on delegated and implementing acts, and the improvement of the orange cardprocedure to make it more effective. Furthermore, more generally, the Commission must better justify its intervention.
A. BETTER JUSTIFICATION OF EUROPEAN UNION INTERVENTION
It is essential for the Commission to take the time to better justify the texts sent to the national parliaments. It should better support the use of a legislative proposal and should not limit the motives of its intervention to the further development of the internal market or the global dimension of a subject.
This is a long-standing concern of many of the national parliaments, as demonstrated in the COSAC debates in 2011 5 ( * ) . In particular, the importance of impact assessments has been identified. It is for the Commission to better justify its intervention using qualitative and quantitative indicators. Furthermore, these impact assessments must be translated into all the Union languages and be more accessible. Notice from the Commission at the same time as the draft project, is thus essential.
The Commissions argument, in its responses to the observations of the national parliaments, finds that the scrutiny exercised concerned more with proportionality than subsidiarity must be rejected. On the contrary, the two principles share the same European constitutional corpus. As noted by COSAC in 2012, the two principles are indeed intrinsically linked 6 ( * ) . Article 5 of the Treaty on European Union states that 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 reference to the scale and effects refers to the very notion of proportionality. Under these conditions, the analysis undertaken by the national parliaments should not be limited to a study of pursued objectives or be based on a list of criteria defined in advance. Instead it should include an evaluation of the resources employed. Thinking about the European added-value, central to the Task Forces mission, must embrace these two ideas.
It is in light of this fact that the Commission must give proper consideration to the impact of all new legislation. In economic matters, a distribution of costs and benefits needs to be systematically carried out relative to the size of the company before qualitative and, if possible, quantitative analysis takes place, taking care to clarify both the direct (administrative and compliance costs) and indirect impact (market structure competition). This study should lead to research on alternative or mitigating measures. These must ensure compliance with the principle of proportionality. They can take the form of exemptions. Thus, companies which fall below certain thresholds do not have to comply with certain specific obligations when this does not compromise the original purpose of the legislation.
The same reasoning applies to local authorities. Many of the recent measures have highlighted a substantial gap between the gains relating to the objective of the European Union and the cost of implementing it by the local authorities. These are often a first step in the implementation of European policies, their situation must be taken into account if we desire the optimal achievement of European objectives. Local authorities must be able to take into account their concerns at a European level.
* 1 White Paper on the Future of Europe, Reflections and scenarios for the EU27 by 2025.
* 2 Decision of the President of the European Commission (C(2018) 406)).
* 3 Invited to join the Task Force, the European Parliament did not nominate any representatives.
* 4 Relaunching Europe: Rediscovering the spirit of Rome, information report N° 434 (2016-2017) by Mr Jean-Pierre RAFFARIN and Mr Jean BIZET, on behalf of the Monitoring Group on the withdrawal of the United Kingdom and the rebuilding of the European Union, of 22 February 2017.
* 5 Contribution of the XLVI COSAC, Warsaw, 24-4 October 2011.
* 6 Contribution of the XLVIII COSAC, Nicosia, 14-16 October 2012.