Dr. Emmanuelle Schön-Quinlivan:

I thank the committee for the invitation to share my analysis and views on the European Commission's report by the task force on subsidiarity, proportionality and "doing less more efficiently". It is a great honour to be asked to do so and I hope I can contribute insightfully to the discussion.

I will first explain how I will structure my talk today. I will start by briefly recalling the history of the principle of subsidiarity and its mutations since its official enshrining in the Maastricht treaty of 1992. Such contextualisation is useful in understanding the task force's approach in 2018. I will then analyse the key points and recommendations made by the task force as well as its shortcomings.

Finally, I would like to set this report in the broader context of the future of Europe, specifically the future of European democracy.

Despite having its roots in European political philosophy, the principle of subsidiarity was not used in the context of the European Community until 1986. It was first mentioned in the Single European Act and only with regard to environmental policy. It coincided with the increase in the use of majority voting, as opposed to unanimity, and the concern of member states that the European Community was encroaching on their sovereign power. Therefore, support for the idea of subsidiarity as a tool to assign limits to the growth of the Community's powers grew substantially until it was enshrined in Article 3(b) of the Maastricht treaty. This article provides that "in areas which do not fall within its exclusive competence, the Community shall take action in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community." The Treaty of Lisbon set up the early warning mechanism elevating national parliaments to the position of subsidiarity watchdogs. However, in nine years, only three of what are known as yellow card procedures were started and no orange procedure has commenced. This shows the limitations of the process.

Looking back helps us to understand the context for this task force report. The Maastricht treaty marked the shift from a "permissive consensus to a constraining dissensus", a description coined by Hooghe and Marks, when it comes to European Union affairs and policies. The subsidiarity principle was introduced at a time of public contestation over the legitimacy of the European integration project. Twenty-five years on, the landscape has not changed much except for the fact that this contestation has taken shape in populist political parties whose support is increasing across a significant number of member states.

What are the key points of the report? It is worth mentioning that the task force was set up in a context of reflection about the future of Europe and the questions of democratic and legitimacy deficits that the European Commission and the European Union as a whole have not yet resolved. The President of the European Commission set three objectives for the task force, namely, how to better apply the principle of subsidiarity and proportionality with regard to preparation and implementation of legislation; how to better involve the regional and local levels in policymaking; and to identify policies that could be re-delegated to the national level. Overall, the recommendations are not radical but offer welcome clarification. In particular, the report acknowledges the shortcomings of the early warning mechanism, EWM, put in place by the Lisbon treaty, which cannot be remedied without a treaty change. Therefore, it recommends that the Commission interpret flexibly the eight-week deadline for national parliaments to submit their reasoned opinions. The same flexibility should also apply if a significant number of reasoned opinions that are below the threshold for a yellow card are submitted. It also recommends a lowering of the yellow card threshold, which would force the Commission to justify more thoroughly its legislative proposals. The overall tone is for the Commission and the European co-legislators to be more attuned to the national, regional and local levels; to give more visibility to how they use the inputs from regional and national parliaments; and to promote increased co-ordination and information sharing between national and regional parliaments.

As is often the case with the European Commission, it considers that the problem lies in communicating better regarding the effective operation of the principle of subsidiarity. Beyond a flexible implementation of the principle, the European Commission also recommends a more consistent approach. The task force's main contribution involves a model assessment grid to be used on subsidiarity and proportionality issues by all European institutions, not only at the start of the legislative process but also during it as well as ex post. This is what the task force brands "active subsidiarity", which is grounded in the concept of European added value. On this aspect, it is interesting to note that the expert the task force called upon, Professor Dougan from the University of Liverpool, specifically cautioned against this idea of "added value". He highlighted that the added value to having EU action in cross-border situations would always be positive and render the test pointless, while frustrating national and subnational levels of governance. However, the idea of translating the subsidiarity principle into European added value is pervasive throughout the entire report as a concept better understood by citizens.

This brings us back to the idea of using subsidiarity as a communication tool to boost the legitimacy of the European Union's actions in the eyes of the citizens. Dehousse analysed in 1993 that "subsidiarity's direct utility as a legal instrument [was] limited." He argued that "its introduction into the treaty should be understood as a strong political message: the Member States are not prepared to accept an unlimited extension of Community competences." He nonetheless concluded that regardless of whether subsidiarity was workable legally or an effective tool of allocation of competence, this political message trumped all. He concluded his article by stating "we are therefore likely to hear more of subsidiarity." Here we are, 25 years later, and the search for the European Union's legitimacy and effectiveness in action in the eyes of the citizens remains elusive.

The major shortcoming with the task force report is that it confuses subsidiarity with policy substance. When the task force claims on page 12 that "national Parliaments have a pivotal role in ensuring conformity with the subsidiarity principle, and they also have a positive contribution to make on the substance of new legislation" it seems to equate both. However, the entire report is about subsidiarity as a tool of competence allocation, that is, who should act and not in what way they should act. The report acknowledges that national and regional parliaments' contributions "frequently go beyond subsidiarity issues in their reasoned opinions", which creates frustration on both sides. Reasoned opinions on the basis of subsidiarity are the only ones that can create legal consequences. If the reasoned opinion is not made on that basis, the Commission is legally entitled to ignore the sub-European parliaments.

In 2005, the Commission introduced the Barroso initiative, which can be defined as "a broad political dialogue between the Commission and the national parliaments of the Member States on all aspects of the former's political agenda". The major difference with the EWM is that the Barroso initiative opinions can assess any political aspect of a Commission proposal, well beyond subsidiarity issues. This allows the national or regional parliament to engage in policy preferences and substance, which politicises EU policies and develops their level of ownership at sub-European levels. This initiative exists at the discretion of the Commission though and could be withdrawn at any time. It is a shame to see that the Barroso initiative is not investigated in more depth by the task force with a view of enshrining it into the treaties.

Similarly, the idea of a "green card", which gives parliaments a right to suggest to the Commission that it take action, is pushed aside. The only small light of hope for significant policy shaping by national and regional parliaments came on page 14 with a suggestion that they and the Commission should exchange more intensely on shaping the Commission's work programme. If the concept of subsidiarity is to demonstrate European added value in its action while closing the gap with the citizens by decentralising decision-making to the level the closest to the citizen, moving away from a technocratic conception of policy proposal to a more political one would make sense. However, since it would further challenge the Commission's right of initiative, the task force fell back on a classic, namely, reinforced co-operation and co-ordination among national parliaments.

At the end of the day, this report was commissioned in the context of a reflection on the future of Europe. The task force clearly rejects scenario four on "doing less more efficiently" regarding re-delegating certain policies to the national level. However, it recommends that existing legislation be reviewed with regard to subsidiarity, proportionality and regulatory density in order to improve effectiveness of implementation of the existing body of law. As Jani points out, "the report missed an opportunity to highlight the political nature of parliamentary contributions to EU integration."

Davor Jani suggests "a periodic balance of competences review... organised across the Union with national and regional parliaments" every four to five years. I do not consider this a meaningful democratic reform that would engage the public. However, it is time to change the message and broaden the scope of contribution of regional and national parliaments to European policymaking.

We need to politicise EU policies so that citizens and sub-European parliaments can develop ownership of those policies. This involves infringing further on the right of initiative of the European Commission. However, the time has come to realise that European democracy is not working and it goes beyond simply increasing the powers of the European Parliament. This has been systematic with every treaty change and inversely proportional to the EU average level of turnout in European elections. It is time for supranational institutions to engage with and carve out space for sub-European parliaments’ political views on EU policies and EU policy-shaping. Many significant democratic reforms should be envisaged beyond the very fragile spitzenkandidat implemented in 2014, which I believe was a step in the right direction.

The lack of a visionary approach to the future of Europe is disappointing given the increasing rise of populist parties across the European Union and the risks it poses to the European project. In his latest State of the Union address, Mr. Jean-Claude Juncker mentioned subsidiarity only once, referring to "being big on the big things and small on the small things", a cheap turn of phrase. His big example of the use of subsidiarity was clock-changing. At a time, whether winter or summer, European citizens and their regional and national parliaments are contesting the legitimacy and effectiveness of European action, it seems odd and even condescending to send them back to do some clock work.