52014DC0506

1.           Introduction

This is the 21st annual report on the application of the principles of subsidiarity and proportionality in EU lawmaking, presented in accordance with Article 9 of the Protocol No 2 on the application of these principles (hereinafter ‘the Protocol’) attached to the Treaty on the Functioning of the European Union (TFEU).

The report looks at how the EU institutions and bodies have implemented these two principles and how practice has evolved as compared with previous years. It also provides a more detailed analysis of a number of Commission proposals that were the subject of reasoned opinions submitted by national Parliaments in 2013. Given the close links between the subsidiarity control mechanism and the political dialogue between national Parliaments and the Commission, this report should be seen as complementary to the Commission’s Annual Report 2013 on relations with national Parliaments.[1]

2.           Application of the principles by the institutions

2.1.        The Commission

When developing policies, the Commission has introduced procedures to assess compliance with the principles of subsidiarity and proportionality at different stages of the decision making cycle in line with Smart Regulation principles. Before proposing new initiatives, it checks that EU-level action is legitimate and necessary. Roadmaps are published for all major new initiatives.[2] Roadmaps provide a preliminary description of these potential initiatives and outline the Commission’s plans for policy and consultation work. They also include an initial justification for action with regard to subsidiarity and proportionality.

When an impact assessment needs to be carried out, stakeholders are invited, through a public consultation exercise, to comment on the need to act and on the possible solutions to the problems identified. Based on responses to this consultation and other relevant input, impact assessments analyse subsidiarity and assess the proportionality of the options examined. The Impact Assessment Guidelines provide guidance on assessing the need for EU action and the value this would add.[3]

Later in the policy development process, impact assessments are thoroughly scrutinised by the Impact Assessment Board.[4] In 2013, the Board examined 97 impact assessments and issued 142 opinions. It commented on subsidiarity and proportionality issues in more than a third (34 %) of the cases it examined. This shows the importance the Commission ascribes to considering subsidiarity and proportionality when preparing legislative proposals. The explanatory memorandum accompanying the legislative proposal also sets out how the proposal complies with the principle of subsidiarity.

The proposal for a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings[5] is an example of a case in which subsidiarity aspects were intensely debated. The Impact Assessment Board gave a positive opinion but yet considered that ‘the report should more clearly describe what are the fundamental rights problems not being sufficiently addressed at Member State or ECHR level that require EU action. It should identify which Member States do not have legal aid frameworks in place to ensure the correct implementation of the Directive on access to a lawyer, so that it is clear where Member States fall below the necessary requirements and EU action is required to ensure minimum rights standards’. As a result, the relevant sections of the impact assessment were strengthened and the insufficiency of the existing solutions was explained more clearly.

Another example is the proposal for a Directive amending Directive 2006/112/EC on the common system of value added tax as regards a standard VAT return.[6] The Board considered that ‘the report should further develop the subsidiarity analysis’. More specifically, it asked for more details to show that VAT returns currently do not work efficiently and create undue burdens for businesses, and demonstrating that the preferred option will not lead to additional burdens for Member States with less complex VAT systems. The relevant sections of the impact assessment were amended in line with these recommendations, providing a better explanation of why certain minimum standards are needed to reduce barriers to cross-border trade and reduce administrative burdens on business.

Proportionality aspects were debated, for instance, in the impact assessment accompanying the proposal for a Regulation on indices used as benchmarks in financial instruments and financial contracts.[7] The Board recommended that the impact assessment ‘better explain how proportionality, particularly for smaller or less risky benchmarks’ contributors/producers will be ensured’. As a result, the revised impact assessment included more detailed explanation, setting out in particular how requirements would be tailored so that the planned measures would be less onerous for smaller producers.

Through its recommendations, the Board helps improve the analysis of compliance with the principles of subsidiarity and proportionality. Its opinions provide key support for the Commission’s political decision-making process.

Subsidiarity and proportionality are also key in the context of retrospective evaluation which assess whether the EU actions remain necessary and are actually delivering the expected results and ultimately improving conditions for European citizens and businesses and contributing to the EU's global role at the level that would not be achieved by Member States alone. The Commission is committed to "evaluate first", and analysing past performance before considering potential changes. By gathering evidence and identifying lessons which can feed into decision making, the EU is making evaluation of EU policy an integral and permanent part of its policy making. Indeed EU added-value, or the assessment of the role played by EU level intervention and taking a view as to whether continued action is still required at that level, is one of the five key evaluation issues (effectiveness, efficiency, relevance, coherence, EU-added value) against which EU policies and legislation are regularly evaluated.[8]

2.2.        National Parliaments

In 2013, the Commission received 88 reasoned opinions[9] from national Parliaments on respect of the principle of subsidiarity (see annex), an increase of 25 % from the previous year (70 reasoned opinions in 2012). The reasoned opinions received in 2013 also accounted for a higher proportion (14 %) of the overall number of opinions the Commission received in the context of the broader political dialogue with national Parliaments (621). In 2012 and 2011, slightly more than 10 % of opinions were reasoned opinions.

2013 saw, for the second time ever, the triggering of a ‘yellow card’ by national Parliaments in the context of the subsidiarity control mechanism, namely on the Commission’s proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office (EPPO).[10] This case will be described in more detail in Chapter 3.

Reasoned opinions continue to vary greatly in form and in the type of argument put forward by national Parliaments in support of their conclusion that the principle of subsidiarity has been breached. As in 2012, national Parliaments issued reasoned opinions on a variety of subjects in 2013. The 88 reasoned opinions issued covered 36[11] Commission proposals. The proposal on the EPPO generated 13 reasoned opinions; the second highest number of reasoned opinions (nine) were issued in relation to the proposal for a Directive establishing a framework for maritime spatial planning and integrated coastal management.[12] National Parliaments issued seven reasoned opinions on the proposal for a Directive 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[13] as well as on the proposal for a Regulation establishing a framework on market access to port services and financial transparency.[14] (For more details, see the annex to this report.)

As in 2012, the Swedish Riksdag was the national Parliament which issued by far the highest number of reasoned opinions (9), although this was much fewer than it issued in 2012 (20). The Austrian Bundesrat and the Lithuanian Seimas issued the second highest number of reasoned opinions (6 each), followed by the two Spanish chambers (the Congreso de los Diputados and the Senado), the Maltese Kamra tad-Deputati, the Dutch Tweede Kamer and the UK House of Commons (5 each).

2.3.        The European Parliament and the Council

a) The European Parliament

As regards subsidiarity and proportionality issues, the European Parliament consolidated its practice of support legislative own-initiative reports based on Article 225 TFEU with evidence based analysis of the potential EU added value. In total, five assessments accompanying legislative own-initiative reports by the European Parliament were finalised in 2013. They covered:

· better governance of the single market;

· combating violence against women;

· a Directive on the cross-border transfer of a company’s registered office (the 14th Company Law Directive);

· the application of the principle of equal pay for men and women for equal work of equal value; and

· the statute for European mutual societies.

In addition, five reports on the ‘cost of non-Europe’ were completed in 2013. These were designed to study the possibilities for gains and/or the realisation of a ‘public good’ through EU-level action in specific policy areas. They covered:

· the European Common Security and Defence Policy;

· increasing coordination between EU donors;

· the European code on private international law;

· the single market for energy; and

· promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the EU.

In 2013, the European Parliament’s ex ante Impact Assessment Unit produced 50 initial appraisals of Commission impact assessments, two detailed appraisals of Commission impact assessments, three impact assessments on the Parliament’s amendments (in total, 20 amendments were assessed) and one alternative impact assessment (in a case where the Commission had not produced one).

b) The Council

In accordance with the third paragraph of Article 4 of Protocol No 2, the Council forwards to national Parliaments all draft legislative acts and amended drafts which originate from a group of Member States, the Court of Justice, the European Central Bank (ECB) or the European Investment Bank (EIB). As a corollary of that obligation (under the second paragraph of Article 6 of the Protocol), the President of the Council forwards any opinion on a draft legislative act originating from a group of Member States to the governments of those Member States. Similarly, the President of the Council forwards any opinion on a draft legislative act originating from the Court of Justice, the ECB or the EIB to the institution or body concerned (under the third paragraph of Article 6 of the Protocol).

In addition to these Treaty obligations, the General Secretariat of the Council keeps Council members informed of Member State opinions on draft legislative acts originating from other institutions. In 2013, the Council Secretariat received a high number of opinions and reasoned opinions from national Parliaments, issued under the Protocol and in the framework of the political dialogue between national Parliaments and the Commission. These opinions were forwarded to Council members for their information.

Furthermore, in the framework of legislative procedures, the Council checks compliance with the principles of subsidiarity and proportionality when reviewing the impact assessments accompanying Commission proposals.

2.4.        The Committee of the Regions

In 2013, the Committee of the Regions (CoR) adopted and implemented its first Subsidiarity Work Programme.[15] The programme included five initiatives,[16] selected from the European Commission Work Programme on the basis of agreed criteria,[17] to be monitored particularly closely with regard to subsidiarity.

Since local and regional authorities are responsible, in most Member States, for implementing EU waste legislation, the CoR closely monitored the review of EU waste policy and legislation, consulting the Subsidiarity Expert Group and the Subsidiarity Monitoring Network. Concerning the Ports Package initiative, there were concerns that the ports package initiative might not take sufficient account of local and regional particularities in Europe, and regional parliaments and governments were therefore consulted on subsidiarity- and proportionality-related issues in parallel with the early warning mechanism eight-week period. The consultees all concluded that the initiative complied with the subsidiarity principle, although some proportionality issues were raised.

A Quick Scan[18] territorial impact assessment workshop was held to look at this initiative on 25 September 2013. This was co-organised by the CoR and the European observation network for territorial development and cohesion (ESPON) on 25 September 2013 in relation to this initiative. This was the first time that the CoR had conducted a territorial impact assessment using Quick Scan methodology. Regional parliaments and governments were also consulted on the subsidiarity and proportionality of the proposal for a Directive on e-invoicing in public procurement, given the potential impact of this initiative on costs and administrative burden at local and regional level. The respondents mostly agreed that the initiative complied with the principle of subsidiarity, but raised some questions with regard to the principle of proportionality. In particular, responses highlighted that the perspective of local and regional authorities was not sufficiently taken into account.

Outside the Commission’s Work Programme, the Subsidiarity Expert Group was also consulted for the preparation of the CoR’s own-initiative opinion on devolution in the EU and on the place for local and regional self-government in EU policy-making and delivery.[19]

To support subsidiarity monitoring, the CoR further upgraded REGPEX — a web-based tool for regions with legislative powers — by adding an interactive map of regions with legislative powers, and profiles of each regional parliament. To help assess experience of the early warning system and spread best practice, the CoR published a study on ‘the Subsidiarity Early Warning System of the Lisbon Treaty — the role of regional parliaments with legislative powers and other subnational authorities’.

Some of the CoR’s opinions in 2013 expressed concerns over the compliance of EU legislative initiatives with the principles of subsidiarity and proportionality. The opinion on the proposed Directive establishing a framework for maritime spatial planning and integrated coastal management[20] argued that the proposal did not comply with the subsidiarity and proportionality principles. The CoR also raised concerns over the use of delegated acts in its opinion on the proposal for a Regulation on official controls[21] and its opinion on the proposal for a Directive on the manufacture, presentation and sale of tobacco and related products.[22]

Reference is also made to the Annual Report 2013 on Subsidiarity issued by the Committee of the Regions.[23]

2.5.        The Court of Justice

In 2013, the Court of Justice did not render any key judgments on the principle of subsidiarity, but there were two General Court judgments on the principle.

In Case T-31/07, Du Pont de Nemours and Others v Commission, a number of companies lodged a case for the annulment of a Commission Directive which included flusilazole, with certain limits, as an active substance in plant protection products under Directive 91/414/EC.[24] One of the grounds for the case was the breach of the principle of subsidiarity. In its judgment of 12 April 2013, the General Court emphasised that that principle applies only in areas which do not fall under the EU’s exclusive competence (paragraph 202). Since Directive 91/414/EC confers on the Union authorities an exclusive competence for the assessment of the active substances that may be used in plant protection products and to place restrictions on their acceptance (paragraphs 203 and 204), the measure adopted in the exercise of that competence was held not to be covered by the principle of subsidiarity (paragraph 205). The General Court thus rejected the applicants’ argument, confirming its case-law on the issue.[25]

In Case T-526/10, Inuit Tapiriit Kanatami and Others v Commission, the applicants requested the annulment of a Commission Regulation laying down detailed rules on trade in seal products,[26] on grounds including a breach of the principle of subsidiarity. In its judgment of 25 April 2013, the General Court rejected that claim. It highlighted case-law according to which the principle of subsidiarity applies to EU measures based on Article 114 TFEU, ‘inasmuch as that provision does not give [the EU] exclusive competence to regulate economic activity on the internal market, but only a certain competence for the purpose of improving the conditions for its establishment and functioning by eliminating barriers to the free movement of goods and the freedom to provide services or by removing distortions of competition’ (paragraph 84).[27] The General Court held that it was clear that ‘the objective of the basic regulation [could not] be satisfactorily achieved by action undertaken only in the Member States and require[d] action at Union level, as the heterogeneous development of national legislation in this case demonstrates’. Consequently, the objective of the action envisaged could be better achieved at EU level and the Regulation was not in breach of the principle of subsidiarity (paragraph 85).

3.           Key cases where subsidiarity and proportionality concerns were raised

Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office

The Commission proposal for a European Public Prosecutor’s Office[28] was adopted on 17 July 2013. The aim of the proposal is to establish the EPPO to investigate and prosecute the perpetrators of offences affecting the EU’s financial interests. The EPPO would be an EU body with a decentralised structure which, for most of its activities, would rely on national investigation and prosecution authorities, and on national law.

National Parliaments issued 13 reasoned opinions[29] on the proposal, representing 18 votes out of a possible 56[30]. Under Article 7(2) of Protocol No 2, 14 votes were needed to trigger a yellow card procedure in this case.

In 2013, seven other chambers of national Parliaments[31] issued opinions on this proposal in the framework of the political dialogue. These did not argue that the Commission’s proposal was incompatible with the principle of subsidiarity, but comment on specific elements of it.[32]

On 6 November 2013, the Commission confirmed that the subsidiarity control mechanism described in Article 7(2) of Protocol No 2 had been triggered. As a result, it carried out a review of the proposal, following which it issued a Communication[33] carefully analysing the reasoned opinions submitted by national Parliaments from the perspective of the principle of subsidiarity. In analysing the reasoned opinions, the Commission distinguished between arguments relating to the principle of subsidiarity, or that could be interpreted as subsidiarity concerns, and other arguments relating to the principle of proportionality, to policy choices unrelated to subsidiarity, or to other policy or legal issues. The main objections by national Parliaments relating to the principle of subsidiarity were as follows:

· The reasoning concerning subsidiarity

A number of chambers of national Parliaments considered that the Commission had not sufficiently explained how the proposal complied with the principle of subsidiarity. The reasons given by the Commission were considered insufficient. Moreover the explanations should be included in the explanatory memorandum as well as the impact assessment.

After its review, the Commission found that the explanatory memorandum and the accompanying legislative financial statement did sufficiently explain why action at Member State level would not achieve the policy objective and why Union-level action would better achieve this (e.g. because there was a lack of continuity in enforcement action and a lack of underlying common European prosecution policy).

· The alleged sufficient character of existing mechanisms

Several chambers expressed the view that investigation and prosecution action at Member‑State level was sufficient and that the coordination and investigation mechanisms existing at the Union level (Eurojust, Europol and OLAF) would also be sufficient. Some chambers considered that the Commission should have waited for its proposed Directive on the fight against fraud to the Union’s financial interests by means of criminal law to be adopted before introducing new legislation in this area.

The Commission noted that clear statistical information showed that the Treaty objective of an effective, deterrent and equivalent level of protection of the EU’s financial interests had not been achieved. It stressed that none of the existing mechanisms or bodies could address the shortcomings identified in relation to the admissibility of cross-border evidence, identifying cross-border links, or getting assistance from authorities in other Member States, nor could these issues be addressed through measures taken solely at Member‑State level.

The Commission also noted that improvements to the existing mechanisms would, at best, have marginal effects because of their inherent limitations. Lastly, it highlighted that the proposal for a Directive on the fight against fraud to the Union’s financial interests by means of criminal law and the proposal to establish the EPPO have different, though complementary, objectives.

· The added value of the EPPO proposal

A number of chambers questioned the added value of the proposal, though some acknowledged the advantages of setting up the EPPO. National Parliaments argued that the Commission did not demonstrate that Union-level action could achieve better results than action at national level.

In response to these opinions, the Commission explained that the proposed system was expected to bring significant added value in the fight against EU fraud. One of the main expected improvements would come from an EU-level prosecution policy, which would address the wide divergences between Member States on how EU fraud is investigated and prosecuted. It would also allow the discovery of cross-border links that might not be noticed in purely national investigations and would more effectively direct and coordinate the investigations. In addition, the creation of a decentralised EPPO would pool expertise and know-how regarding the investigation and prosecution of EU fraud cases at European level and ensure that this takes place near the scene of the crime.

· Issues relating to the structure of the EPPO and to the nature and scope of its competences

Concerning the structure, the Commission noted that creating the EPPO with a fully-fledged collegial structure, as supported by a number of national Parliaments, could hamper its efficiency and render its decision-making less efficient. In response to questions over nature and scope of the EPPO’s competence, the Commission underlined that the crimes in question, including non-cross-border cases, have an intrinsic Union dimension. A limitation of the scope would not only reduce EPPO's added-value but also call into question the Union’s competence in this matter.

However, the exclusive competence of the EPPO would not mean that national authorities would be excluded from dealing with the cases handled by it, in view of the involvement of national law enforcement authorities and of European Delegated Prosecutors located in the Member States, who are at the same time national prosecutors.

Following this in-depth review, the Commission concluded that the proposal complies with the principle of subsidiarity and decided to maintain it.

Proposal for a Directive establishing a framework for maritime spatial planning and integrated coastal management[34]

The Commission proposal that elicited the second highest number of reasoned opinions in 2013 was the proposal establishing a framework for maritime spatial planning and integrated coastal management. National Parliaments issued nine reasoned opinions on the proposal,[35] representing 13 votes. In addition, in 2013, five more chambers sent opinions in the framework of the political dialogue; these did not consider the proposal to be incompatible with the principle of subsidiarity.[36]

Some national Parliaments considered that the Commission had not adequately demonstrated the added value of EU-level obligations in the field of maritime spatial planning and integrated coastal management and that the Directive would add significantly to the administrative burden and to reporting requirements, without adequate benefits. Furthermore, some reasoned opinions questioned the suggested legal basis for the proposal.

In its reply to these reasoned opinions, the Commission emphasised that the proposed Directive would deliver added value by enabling Member States to reach minimum commonalities allowing improved cross-border cooperation and supporting the timely implementation of related legislation. The Commission pointed out that maritime and coastal activities have a cross-border, and often EU-wide, impact and national planning processes differ considerably. An EU-level framework to guide planning processes at sea and integrate management of coastal zones is therefore needed. The Commission emphasised that the proposed Directive would leave Member States significant discretion as to how its objectives should be achieved. It stressed that international cooperation would make it easier to involve relevant non-EU countries in marine spatial planning and integrated coastal management. The proposed Directive would allow Member States to choose the format and the means of this cooperation with third countries, as long as they would make every effort to coordinate their plans and strategies with those of the third country. The politically agreed text by the co-legislators was consistent with these reactions.

Proposal for a Directive 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  [37]

The proposed legislation consists of new and strengthened rules on how tobacco products can be manufactured and presented for sale in the EU. It elicited seven reasoned opinions, representing 11 votes.[38] Eight national Parliaments[39] also sent opinions in the framework of the political dialogue; these did not consider the proposal to be incompatible with the principle of subsidiarity. Two chambers[40] sent opinions arguing that the proposal was not in line with the subsidiarity principle, but these were submitted after the deadline and therefore could not be included when calculating whether the threshold had been met.

Some chambers considered that regulating certain types of tobacco products, such as low-risk products, was a national competence. Others criticised the transfer of power to the Commission to adopt delegated acts. Furthermore, the legal basis for this proposal was also questioned, as it would not harmonise Member States’ laws on tobacco products. National Parliaments also argued that banning ‘slim’ and menthol cigarettes and packages of rolling tobacco of less than 40 g would not contribute to the functioning of the internal market.

In its replies, the Commission emphasised that the proposal would not impose restrictions on the placing on the market of low-risk products. It also explained that, to make the Directive fully operational, use of the power to adopt acts in accordance with Article 290 TFEU had been deemed necessary. The delegations of power set out in the proposal provided for clear and concise criteria, giving limited discretion to the Commission. With regard to the legal basis for the proposal, the Commission noted that the current Directive largely pursues the same aims as the proposal for its revision, and the European Court of Justice had confirmed the legality of Article 114 as the legal basis of the current Directive.[41] Therefore, the legal basis was appropriate for updating the existing level of harmonisation, removing obstacles to the internal market because of divergent regulatory developments in Member States and preventing the circumvention of internal market rules. In the Commission’s view, Article 114 TFEU provided a legal basis for full, partial or minimum harmonisation and allowed for certain matters to be left to Member States to regulate. The Commission pointed out that Member States had begun to adopt measures to regulate tobacco products with characterising flavours and, therefore, it proposed harmonisation to prevent market distortions. It also stressed that the proposal would only standardise certain aspects of the pack, such as the number of cigarettes it contained and the size of health warnings, which are beneficial for the circulation of the products on the internal market whilst ensuring that health warnings are fully visible.

Proposal for a Regulation establishing a framework on market access to port services and financial transparency of ports[42]

The proposal intends to improve port operations and onward transport connections at seaports of the Trans-European Transport network. The legal framework being proposed would contribute to a genuine legal playing field and create more legal certainty for port operators and investors. The proposal defines transparent and open procedures to designate the providers of port services, rules to prevent possible price abuses by operators with exclusive rights and rules ensuring the transparency of the use of public funds. National Parliaments issued seven reasoned opinions on the proposal, representing 11 votes[43]. In addition, three chambers sent opinions in the framework of the political dialogue which did not consider the proposal to be incompatible with the principle of subsidiarity[44].

Some national Parliaments alleged that the objectives of the proposal could be better achieved by soft law or by a directive. Others criticised that Member States would lose their right and possibility to continue to regulate their port sector through their national legal acts and that the proposed Regulation could have counterproductive effects on the performance of economies and infrastructure in the areas concerned,

In its replies, the Commission stated that the proposal for a Regulation applies only to the ports which form part of the Trans-European Transport Network (TEN-T) which the European Parliament and the Council considered as important for the internal market and the EU territorial cohesion in the context of the Regulation (EU) N° 1315/2013 on the development of the TEN-T. The Regulation frames existing Treaty principles already applicable to the port sector by introducing two basics set of rules: non-discriminatory and transparent market access conditions for providers of port services and the respect of financial transparency rules in the use of public funds in ports. The Commission underlined that its intention was that the provisions of the Regulation should remain neutral in respect of the internal organisation of the Member States regarding their port systems, In respect of the choice of legal instrument, the Commission stressed that it preferred a regulation rather than a directive since one of the main goals of the proposal was to ensure a level playing field which requires a uniform implementation of the few but essential rules.

Furthermore, the Commission stressed that the Regulation would leave to Member States the necessary flexibility to take account of particular circumstances, and that Member States would keep the choice between various forms of market access. They would for instance not be forced to open up to competition services that, according to their own choice, should remain regulated by duly justified reasons of public interest. The Commission underlined further that attracting investors requires undistorted competition between the ports of the TEN-T, notably those located in different Member States, which in the Commission's view could not be achieved by the Member States alone.

4.           Conclusions

In 2013, inter-institutional discussions on the principles of subsidiarity and proportionality continued, and the triggering of the second yellow card procedure by national Parliaments was a notable event.

The 88 reasoned opinions submitted by national Parliaments in 2013 concerned 36 different Commission documents. This seems to confirm a trend which had already been observed in previous years: national Parliaments have varying political interests and different priorities in choosing Commission proposals to be scrutinised in the context of the subsidiarity control mechanism. They also seem to apply different criteria when assessing a proposal’s compliance with the principle of subsidiarity.

All institutions involved in the legislative process were active in ensuring control of the principle of subsidiarity. The Commission continued to carry out in-depth assessments of compliance with the principles of subsidiarity and proportionality at different stages. Before adopting legislative proposals, it provides assessments (e.g. in roadmaps and impact assessments) and after adoption, it examines and replies to reasoned opinions from national Parliaments expressing subsidiarity concerns.

Subsidiarity control and monitoring issues also figured prominently on the agenda of the European Parliament and the Committee of the Regions. The European Parliament continued to support its legislative own-initiative reports with evidence-based analysis of the potential EU added value. The Committee of the Regions similarly increased its work on subsidiarity issues, especially by adopting and implementing a subsidiarity work programme for the first time. 

Annex

List of Commission documents on which the Commission received reasoned opinions[45]

regarding compliance with the subsidiarity principle from national Parliaments in 2013

|| Commission document || Title || Number of reasoned opinions (Protocol No 2) || Number of votes (Protocol No 2)[46] || National chamber submitting reasoned opinions

1 || COM(2013) 534 || Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office || 13[47] || 18 (reached the yellow card threshold[48]) || CY Vouli ton Antiprosopon (2 votes) CZ Senát (1 vote) FR Sénat (1 vote) HU Országgyűlés (2 votes) IE Houses of the Oireachtas (both chambers — 2 votes) MT Kamra tad-Deputati (2 votes) RO Camera Deputaților (1 vote) SI Državni zbor (1 vote) SE Riksdag (2 votes) NL Eerste Kamer (1 vote) NL Tweede Kamer (1 vote) UK House of Commons (1 vote) UK House of Lords (1 vote)

2 || COM(2013) 133 || Proposal for a Directive establishing a framework for maritime spatial planning and integrated coastal management || 9[49] || 13 || BE Vlaams Parlement (1 vote) FI Eduskunta (2 votes) DE Bundesrat (1 vote) IE Houses of the Oireachtas (both Chambers — 2 votes) LT Seimas (2 votes) PL Senat (1 vote) SE Riksdag (2 votes) NL Eerste Kamer (1 vote) NL Tweede Kamer (1 vote)

3 || COM(2012) 788 || Proposal for a Directive 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 || 7 || 11 || CZ Poslanecká sněmovna (1 vote) DK Folketing (2 votes) EL Vouli ton Ellinon (2 votes) IT Senato della Republica (1 vote) PT Assembleia da República (2 votes) RO Camera Deputaților (1 vote) SE Riksdag (2 votes)

4 || COM(2013) 296 || Proposal for a Regulation establishing a framework on market access to port services and financial transparency of ports || 7[50] || 11 || FR Assemblée nationale (1 vote) IT Senato della Republica (1 vote) LV Saeima (2 votes) MT Kamra tad-Deputati (2 votes) PL Sejm (1 vote) ES Congreso de los Diputados and Senado (both chambers — 2 votes) SE Riksdag (2 votes)

5 || COM(2013) 28[51] || Proposal for a Regulation amending Regulation (EC) No 1370/2007 concerning the opening of the market for domestic passenger transport services by rail || 6 || 9 || AT Bundesrat (1 vote) LT Seimas (2 votes) LU Chambre des Députés (2 votes)[52] SE Riksdag (2 votes)[53] NL Eerste Kamer (1 vote)[54] NL Tweede Kamer (1 vote)[55]

6 || COM(2013) 29[56] || Proposal for a Directive amending Directive 2012/34/EU establishing a single European railway area, as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure || 6 || 9 || FR Sénat (1 vote) LT Seimas (2 votes) LU Chambre des Députés (2 votes)[57] SE Riksdag (2 votes)[58] NL Eerste Kamer (1 vote)[59] NL Tweede Kamer (1 vote)[60]

7 || COM(2012) 614[61] || Proposal for a Directive on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures || 5[62] || 5 || CZ Poslanecká sněmovna (1 vote)[63] PL Sejm (1 vote) PL Senat (1 vote) UK House of Commons (1 vote) UK House of Lords (1 vote)[64]

8 || COM(2013) 627 || Proposal for a Regulation laying down measures concerning the European single market for electronic communications and to achieve a Connected Continent, and amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations (EC) No 1211/2009 and (EU) No 531/2012 || 4[65] || 7 || AT Bundesrat (1 vote) IE Houses of the Oireachtas (both Chambers — 2 votes) MT Kamra tad-Deputati (2 votes) SE Riksdag (2 votes)

9 || COM(2013) 27[66] || Proposal for a Regulation on the European Union Agency for Railways and repealing Regulation (EC) No 881/2004 || 3 || 5 || LT Seimas (2 votes) RO Senatul (1 vote) SE Riksdag (2 votes)[67]

10 || COM(2013) 31[68] || Proposal for a Directive on railway safety (Recast) || 3 || 5 || LT Seimas (2 votes) RO Senatul (1 vote) SE Riksdag (2 votes)[69]

11 || COM(2013) 173 || Proposal for a Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA || 3[70] || 4 || BE Chambre des Représentants (1 vote) DE Bundesrat (1 vote) ES Congreso de los Diputados and Senado (both Chambers — 2 votes)

12 || COM(2012) 615[71] || Communication on Gender balance in business leadership: a contribution to smart, sustainable and inclusive growth || 2 || 2 || CZ Poslanecká sněmovna (1 vote)[72] UK House of Lords (1 vote)[73]

13 || COM(2013) 30[74] || Proposal for a Directive on the interoperability of the rail system within the European Union (Recast) || 2 || 4 || LT Seimas (2 votes) SE Riksdag (2 votes)[75]

14 || COM(2013) 147 || Proposal for a Regulation on measures to reduce the cost of deploying high-speed electronic communications networks || 2 || 2 || NL Tweede Kamer (1 vote) UK House of Commons (1 vote)

15 || COM(2013) 262 || Proposal for a Regulation on the production and making available on the market of plant reproductive material (plant reproductive material law) || 2 || 2 || AT Bundesrat (1 vote) NL Tweede Kamer (1 vote)

16 || COM(2013) 472 || Proposal for a Regulation on fees payable to the European Medicines Agency for the conduct of pharmaco-vigilance activities in respect of medicinal products for human use || 2[76] || 4 || EL Vouli ton Ellinon (2 votes) ES Congreso de los Diputados and Senado (both chambers — 2 votes)

17 || COM(2013) 618[77] || Proposal for a Directive amending Council Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, as regards the definition of drug || 2 || 2 || UK House of Commons (1 vote)[78] UK House of Lords (1 vote)[79]

18 || COM(2013) 619[80] || Proposal for a Regulation on new psychoactive substances || 2 || 2 || UK House of Commons (1 vote)[81] UK House of Lords (1 vote)[82]

19 || COM(2013) 721 || Proposal for a Directive amending Directive 2006/112/EC on the common system of value added tax as regards a standard VAT return || 2 || 2 || FR Sénat (1 vote) DE Bundesrat (1 vote)

20 || COM(2012) 724 || Proposal for a Regulation amending certain legislative acts in the domain of agricultural and fishery statistics || 1[83] || 2 || ES Congreso de los Diputados and Senado (both chambers — 2 votes)

21 || COM(2013) 48[84] || Proposal for a Directive concerning measures to ensure a high common level of network and information security across the Union || 1 || 2 || SE Riksdag (2 votes)

22 || COM(2013) 71 || Proposal for a Directive implementing enhanced cooperation in the area of financial transaction tax || 1 || 2 || SE Riksdag (2 votes)

23 || COM(2013) 151 || Proposal for a Directive on the conditions of entry and residence of third-country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing (Recast) || 1 || 2 || EL Vouli ton Ellinon (2 votes)

24 || COM(2013) 168 || Amended proposal for a Directive on the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of public health insurance systems || 1[85] || 2 || ES Congreso de los Diputados and Senado (both chambers — 2 votes)

25 || COM(2013) 207 || Proposal for a Directive amending Council Directives 78/660/EEC and 83/349/EEC as regards disclosure of non-financial and diversity information by certain large companies and groups || 1 || 2 || EE Riigikogu (2 votes)

26 || COM(2013) 228 || Proposal for a Regulation on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012 || 1 || 1 || RO Senatul (1 vote)

27 || COM(2013) 260 || Proposal for a Regulation on animal health || 1 || 1 || AT Bundesrat (1 vote)

28 || COM(2013) 265 || Proposal for a Regulation on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health, plant reproductive material, plant protection || 1 || 2 || LU Chambre des Députés (2 votes)

29 || COM(2013) 267 || Proposal for a Regulation on protective measures against pests of plants || 1 || 1 || AT Bundesrat (1 vote)

30 || COM(2013) 409 || Proposal for a Regulation amending Regulation (EC) No 216/2008 in the field of aerodromes, air traffic management and air navigation services || 1 || 2 || MT Kamra tad-Deputati (2 votes)

31 || COM(2013) 410 || Proposal for a Regulation on the implementation of the Single European Sky (Recast) || 1 || 2 || MT Kamra tad-Deputati (2 votes)

32 || COM(2013) 520 || Proposal for a Regulation establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Bank Resolution Fund and amending Regulation (EU) No 1093/2010 of the European Parliament and of the Council || 1 || 2 || SE Riksdag (2 votes)

33 || COM(2013) 535 || Proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust) || 1 || 1 || CZ Senát (1 vote)

34 || COM(2013) 550 || Proposal for a Regulation on interchange fees for card-based payment transactions || 1 || 1 || FR Sénat (1 vote)

35 || COM(2013) 620 || Proposal for a Regulation on the prevention and management of the introduction and spread of invasive alien species || 1 || 1 || AT Bundesrat (1 vote)

36 || COM(2013) 641 || Proposal for a Regulation on indices used as benchmarks in financial instruments and financial contracts || 1 || 1 || UK House of Commons (1 vote)

Number of reasoned opinions on documents counted individually || 99

Number of reasoned opinions jointly concerning more than one document[86] || 11[87]

TOTAL of reasoned opinions received || 88

[1]     COM(2014) 507 final.

[2]     http://ec.europa.eu/smart-regulation/impact/planned_ia/planned_ia_en.htm.

[3]     http://ec.europa.eu/smart-regulation/impact/commission_guidelines/commission_guidelines_en.htm.

[4]     http://ec.europa.eu/smart-regulation/impact/iab/iab_en.htm.

[5]     COM(2013) 824 final.

[6]     COM(2013) 721 final.

[7]     COM(2013) 641 final.

[8]   Communication "Strengthening the foundations of Smart Regulation – improving evaluation" - COM(2013) 686 final of 02.10.2013.

[9]     See footnote 44.

[10]    COM(2013) 534 final.

[11]    The Commission received 88 reasoned opinions, some of them relating to more than one document.

[12]    COM(2013) 133 final.

[13]    COM(2012) 788 final.

[14]    COM(2013) 296 final.

[15]    CdR 2336/2012, adopted by the CoR Bureau on 30 January 2013.

[16]    1. Review of EU waste policy and legislation;         2. The Ports Package (replaced the ‘Blue Belt’ initiative initially selected);      3. Urban mobility;         4. E-invoicing in public procurement; and               5. Environmental climate and energy assessment framework to enable safe and secure unconventional hydrocarbon extraction.

[17]    a) initiatives should present a clear political interest for local and regional authorities;

      b) initiatives should touch on competences of local and regional authorities; and

      c) initiatives should have a potential subsidiarity dimension.

[18]    This methodology allows quick ex ante analysis of the potential impact of EU legislation on development of regions. It combines a standardised indicator-based tool with a means of systematically collecting expert knowledge through workshops. It covers the potential impacts at a general level with common indicators for European NUTS 2 regions.

[19]    CdR 2214/2012.

[20]    CdR 3766/2013.

[21]    CdR 5295/2013.

[22]    CdR 2062/2013.

[23]    https://portal.cor.europa.eu/subsidiarity/news/Pages/Subsidiarity-Annual-Report-2013.aspx.

[24]    Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230, 19.8.1991, p. 1).

[25]    Case T-420/05 R, Vischim v Commission [2009] ECR II‑3841, paragraph 223.

[26]    Commission Regulation (EU) No 737/2010, of 10 August 2010, laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (OJ L 216, 17.8.2010, p. 1).

[27]    Case C-491/01, British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 179.

[28]    COM(2013) 534 final.

[29]    CY Vouli ton Antiprosopon (2 votes), CZ Senát (1 vote), FR Sénat (1 vote), HU Országgyűlés (2 votes), IE Houses of the Oireachtas (both chambers — 2 votes), MT Kamra tad-Deputati (2 votes), RO Camera Deputaților (1 vote), SI Državni zbor (1 vote), SE Riksdag (2 votes), NL Eerste Kamer (1 vote), NL Tweede Kamer (1 vote), UK House of Commons (1 vote) and UK House of Lords (1 vote).

[30]    Each national Parliament has two votes; where a national Parliament is bicameral, one vote is allocated to each chamber. Each chamber is entitled to issue reasoned opinions independently.

[31]    PL Senat, DE Bundesrat, PT Assembleia da República, RO Senatul, IT Senato della Repubblica, FR Assemblée nationale, FI Eduskunta. Additional opinions were submitted in 2014..

[32]   The Commission replied to these comments not related to subsidiarity by individual letters to the national Parliaments.

[33]    COM(2013) 851 final.

[34]    COM(2013) 133 final.

[35] BE Sénat, FI Eduskunta, DE Bundesrat, IE Houses of the Oireachtas (both chambers), LT Seimas, PL Senat, SE Riksdag, NL Eerste Kamer, NL Tweede Kamer.

[36]    IT Senato della Repubblica, DK Folketing, EE Riigikogu, RO Senatul and PT Assembleia da República.

[37]    COM(2012) 788.

[38]    CZ Poslanecká sněmovna (1 vote), DK Folketing (2 votes), EL Vouli ton Ellinon (2 votes), IT Senato della Repubblica (1 vote), PT Assembleia da República (2 votes), RO Camera Deputaților (1 vote) and SE Riksdag (2 votes).

[39]    AT Bundesrat, CZ Sénat, DE Bundesrat, FR Assemblée nationale, PL Senat, RO Senat, SK Národná Rada, HU Országgyűlés.

[40]    BG Narodno Sabranie and IT Camera dei Deputati.

[41]    See Case C-491/01, BAT [2002] ECR I-11453.

[42]    COM(2013) 296.

[43] FR Assemblée nationale (1 vote), IT Senato della Repubblica (1 vote), LV Saeima (2 votes), MT Kamra tad-Deputati (2 votes), PL Sejm (1 vote), ES Congreso de los Diputados and Senado (both Chambers - 2 votes) and SE Riksdag (2 votes).

[44] PT Assembleia da República, PL Senat and DE Bundesrat.

[45]    To qualify as a reasoned opinion as defined in Protocol No 2, an opinion must state why the national Parliament considers that a legislative proposal does not comply with the principle of subsidiarity and be sent to the Commission within eight weeks of the transmission of the proposal to national Parliaments.

[46]    Under Protocol No 2, each national Parliament has two votes; in the case of a bicameral system, each chamber has one vote. Where reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least a third of all votes allocated to the national Parliaments, the yellow card threshold is reached, i.e. the draft must be reviewed. With the accession of Croatia on 1 July 2013, 19 out of 56 votes represent a third of all votes allocated to the national Parliaments.

[47]    Of which one came jointly from the two chambers of the IE Houses of the Oireachtas — counted as one reasoned opinion from two chambers.

[48]    Under Protocol No 2, in the case of a draft legislative act submitted on the basis of Article 76 TFEU (on freedom, security and justice), the yellow card threshold is reached where reasoned opinions represent at least a quarter of all votes allocated to the national Parliaments. With the accession of Croatia on 1 July 2013, 14 out of 56 votes represent a quarter of all votes allocated to the national Parliaments.

[49]    Of which one came jointly from the two chambers of the IE Houses of the Oireachtas — counted as one reasoned opinion from two chambers.

[50]    Of which one came jointly from the two ES chambers — counted as one reasoned opinion from two chambers.

[51]    Four of the reasoned opinions concerning this Commission document jointly concerned various other Commission documents as well.

[52]    This reasoned opinion from the LU Chambre des Députés jointly concerned COM(2013) 28 and COM(2013) 29.

[53]    This reasoned opinion from the SE Riksdag jointly concerned COM(2013) 27, COM(2013) 28, COM(2013) 29, COM(2013) 30, and COM(2013) 31 — the 4th Railway Package.

[54]    This reasoned opinion from the NL Eerste Kamer jointly concerned COM(2013) 28 and COM(2013) 29.

[55]    This reasoned opinion from the NL Tweede Kamer jointly concerned COM(2013) 28 and COM(2013) 29.

[56]    Four of the reasoned opinions concerning this Commission document jointly concerned various other Commission documents as well.

[57]    As noted above, this reasoned opinion from the LU Chambre des Députés jointly concerned COM(2013) 28 and COM(2013) 29.

[58]    As noted above, this reasoned opinion from the SE Riksdag jointly concerned COM(2013) 27, COM(2013) 28, COM(2013) 29, COM(2013) 30, and COM(2013) 31 — the 4th Railway Package.

[59]    As noted above, this reasoned opinion from the NL Eerste Kamer jointly concerned COM(2013) 28 and COM(2013) 29.

[60]    As noted above, this reasoned opinion from the NL Tweede Kamer jointly concerned COM(2013) 28 and COM(2013) 29.

[61]    Two of the reasoned opinions concerning this Commission document jointly concerned COM(2012) 615 as well.

[62]    The Commission received three reasoned opinions concerning this document from the DK Folketing, the SE Riksdag and jointly from the NL Eerste Kamer and NL Tweede Kamer (both chambers) before 1 January 2013.

[63]    This reasoned opinion from the CZ Poslanecká sněmovna jointly concerned COM(2012) 614 and COM(2012) 615.

[64]    This reasoned opinion from the UK House of Lords jointly concerned COM(2012) 614 and COM(2012) 615.

[65]    Of which one came jointly from the two chambers of the IE Houses of the Oireachtas — counted as one reasoned opinion from two chambers.

[66]    One of the reasoned opinions concerning this Commission document jointly concerned COM(2013) 28, COM(2013) 29, COM(2013) 30 and COM(2013) 31 as well.

[67]    As noted above, this reasoned opinion from the SE Riksdag jointly concerned COM(2013) 27, COM(2013) 28, COM(2013) 29, COM(2013) 30 and COM(2013) 31 — the 4th Railway Package.

[68]    One of the reasoned opinions concerning this Commission document jointly concerned COM(2013) 27, COM(2013) 28, COM(2013) 29 and COM(2013) 30 as well.

[69]    As noted above, this reasoned opinion from the SE Riksdag jointly concerned COM(2013) 27, COM(2013) 28, COM(2013) 29, COM(2013) 30 and COM(2013) 31 — the 4th Railway Package.

[70]    Of which one came jointly from the two ES chambers — counted as one reasoned opinion from two chambers.

[71]    The reasoned opinions concerning this Commission document jointly concerned COM(2012) 614 as well.

[72]    As noted above, this reasoned opinion from the CZ Poslanecká sněmovna jointly concerned COM(2012) 614 and COM(2012) 615.

[73]    As noted above, this reasoned opinion from the UK House of Lords jointly concerned COM(2012) 614 and COM(2012) 615.

[74]    The reasoned opinion concerning this Commission document jointly concerned COM(2013) 27, COM(2013) 28, COM(2013) 29 and COM(2013) 31 as well.

[75]    As noted above, this reasoned opinion from the SE Riksdag jointly concerned COM(2013) 27, COM(2013) 28, COM(2013) 29, COM(2013) 30 and COM(2013) 31 — the 4th Railway Package.

[76]    Of which one came jointly from the two ES chambers — counted as one reasoned opinion from two chambers.

[77]    The reasoned opinions concerning this Commission document jointly concerned COM(2013) 619 as well.

[78]    This reasoned opinion from the UK House of Commons jointly concerned COM(2012) 618 and COM(2012) 619.

[79]    This reasoned opinion from the UK House of Lords jointly concerned COM(2012) 618 and COM(2012) 619.

[80]    The reasoned opinions concerning this Commission document jointly concerned COM(2013) 618 as well.

[81]    As noted above, this reasoned opinion from the UK House of Commons jointly concerned COM(2012) 618 and COM(2012) 619.

[82]    As noted above, this reasoned opinion from the UK House of Lords jointly concerned COM(2012) 618 and COM(2012) 619.

[83]    This reasoned opinion came jointly from the two ES chambers — counted as one reasoned opinion from two chambers.

[84]    One of the reasoned opinions concerning this Commission document jointly concerned JOIN(2013) 1 as well.

[85]    This reasoned opinion came jointly from the two ES chambers — counted as one reasoned opinion from two chambers.

[86]    As some reasoned opinions jointly concern more than one document, the table sets out the number of reasoned opinions issued for each individual document. In order to also show the number of reasoned opinions received by the Commission, the additional number of reasoned opinions jointly concerning more than one document is deducted.

[87]    Referring, as noted above, to one reasoned opinion from the LU Chambre des Députés jointly concerning COM(2013) 28 and COM(2013) 29; one reasoned opinion from the SE Riksdag jointly concerning COM(2013) 27, COM(2013) 28, COM(2013) 29, COM(2013) 30 and COM(2013) 31 — the 4th Railway Package; one reasoned opinion from the NL Eerste Kamer jointly concerning COM(2013) 28 and COM(2013) 29; one reasoned opinion from the NL Tweede Kamer jointly concerning COM(2013) 28 and COM(2013) 29; one reasoned opinion from the CZ Poslanecká sněmovna jointly concerning COM(2012) 614 and COM(2012) 615; one reasoned opinion from the UK House of Lords jointly concerning COM(2012) 614 and COM(2012) 615; one reasoned opinion from the UK House of Commons jointly concerning COM(2012) 618 and COM(2012) 619; and one reasoned opinion from the UK House of Lords jointly concerning COM(2012) 618 and COM(2012) 619.