On 10 May 2016, fourteen parliamentary chambers from eleven EU Member States drew a ‘yellow card’ against a legislative proposal of the Commission on a revision of the Posted Workers Directive for breaching the principle of subsidiarity. The exercise marks the revival of a nearly dormant Early Warning System, and a new step in the coming of age of national parliaments in EU politics.
The Posted Workers Directive (96/71/EC) sets rules on the temporary posting of employees to another country. In principle, workers are entitled to a minimum wage in the host country, but pay for social security in their home country. Net receiving countries wanted stricter rules in order to avoid social dumping and ensure equal pay for equal work. The countries sending employees find that this runs against the idea of an internal market and competitiveness. The proposed revision of 8 March 2016 seeks to strike a fairer balance and prevent abuse. Stricter rules on fair remuneration are proposed, and the labour law of the host Member State is fully applied after a stay of 24 months.
The principle of subsidiarity holds that the EU can only act if the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale or effects, be better achieved at Union level (article 5(3) TEU). Under the Early Warning System (Protocol 2 to the Treaties), national parliaments can check all new EU legislative proposals for compliance with the principle by submitting a reasoned opinion. Bicameral parliaments have one vote per chamber; unicameral parliaments get two votes. If a third of the votes is reached (a ‘yellow card’), the Commission has to reconsider its proposal and decide to withdraw, amend or maintain it. Until recently, the threshold had been reached twice: once concerning a regulation on the right to strike (the ‘Monti II regulation’) and the second time on the regulation establishing a European Public Prosecutors Office (‘EPPO’).
In a coordinated effort, parliamentary chambers from Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia succeeded to reach the threshold for a ‘yellow card’, forcing the Commission to reconsider its proposal. With 14 parliamentary chambers from 11 Member States, their opinions represent 22 out of 56 votes, well above the threshold of a third. This is also the highest amount of votes any individual proposal ever received, from the highest number of individual chambers. But what is most striking is the composition of the parliaments. With the exception of the Danish Folketing, all are Central or Eastern European. This demonstrates a true coordinated effort between the parliaments, and it sets an important precedent. Alliances formed by regional or policy interests can be more efficient in following and influencing EU legislative proposals, and thus make a real impact on EU politics.
Subsidiarity was introduced in the Treaty of Maastricht (1992) to ensure decision-making as close to the citizen as possible. The Commission, as initiator of legislation, must justify compliance with the principle for each proposal. These justifications are often outrageously short, as is demonstrated by the one-sentence justification in the proposed revision: “An amendment to an existing Directive can only be achieved by adopting a new Directive.” This is a strictly formal assessment, and carries no substantive meaning whatsoever. It demonstrates the biggest flaw of subsidiarity: that whoever sets the objective, determines the outcome. If the Commission sets integration as its goal, this is always better achieved at EU level. In this sense the Commission acts as both judge and jury.
With almost three years since the last yellow card, and a steep decline in reasoned opinions since then, the Early Warning System seemed to be dormant. In 2014, the number of reasoned opinions decreased by 76% compared to 2013, from 88 to 21. Lauded after its conception in the Treaty of Lisbon (2007) as a vindication of national parliaments in European politics, the sense quickly grew that its impact would be limited. There are two reasons for this: firstly, the strict procedural requirements. Parliaments have a mere eight weeks to submit a reasoned opinion, and it must be strictly limited to subsidiarity issues, not to related proportionality or competence issues. For most parliaments, this is hardly enough time to assess the matter and get a reasoned opinion through the chamber, let alone to make a coordinated effort between parliaments.
The second reason why the two earlier yellow cards had little effect, is a matter of institutional dynamics. So far, the Commission has always decided to maintain its proposal, at least formally. The Monti II regulation was eventually withdrawn, but this was because of opposition in the Council. The EPPO regulation was maintained, but has entered a political stalemate. In both cases the Commission’s decision was supported by only a brief justification. The CJEU, which has the competence to hear subsidiarity complaints, has so far steered away from interfering, applying only a marginal test (the recent tobacco legislation judgments provide the most recent example).
Whether the third yellow card can revive the Early Warning System remains to be seen. The Commission may very well decide to maintain its proposal – and despite their number, the Member States involved do not form a blocking minority in the Council. But stronger parliamentary involvement in the EU is something that many will welcome. The recent red card proposal and the green card initiative both demonstrate this. But if the Early Warning System is to really make an impact, it must be revised. Its strict procedural requirements need to be loosened, and its rigid understanding of subsidiarity expanded.