Yellow and orange card: Don’t blame the Commission

, by Juuso Järviniemi

Yellow and orange card: Don't blame the Commission
National parliaments will have to do a better job at building coalitions to exercise a greater influence on the Commission. Photo: Trevor Pritchard // Flickr (CC BY-NC-SA 2.0)

The subsidiarity control mechanism of the EU allows national parliaments to force the Commission to reconsider its legislative proposals that they deem to breach the principle of subsidiarity. So far it has hardly ever been used. National parliaments, not the Commission, are to blame.

If the Commission makes a proposal for an EU law on a matter which should be handled at the national level or lower, national parliaments have a defence. Depending on the area of legislation, one third or one quarter of national parliaments¹ can trigger the “yellow card procedure” by flagging the proposal. The Commission must in that case review its proposal, and justify its decision to maintain, withdraw or change the proposal. If more than half of the parliaments flag the proposal, the result is the “orange card procedure”, where the Commission must justify to the European Parliament and the Council why the proposal doesn’t go against subsidiarity.

Since its inception with the Lisbon Treaty, the yellow card procedure has only been used three times, and the orange card has never been flashed. Anna-Lena Högenauer of the University of Luxembourg discussed the reasons for this lack of enthusiasm in her guest lecture at the University of Edinburgh in February².

Some national parliaments, like the Swedish Riksdag, have been keen to flag proposals by issuing reasoned opinions, Högenauer said, but many seem to show little to no interest in the opportunity. The period of time within which the parliaments must act is only eight weeks long, which is one criticism of the procedure. Another, an interesting one, is that the Commission doesn’t take the parliaments’ views seriously enough when the procedure is actually triggered, which discourages the parliaments. The counterargument to the former criticism is that a longer waiting period would further protract the EU lawmaking process, already notorious for its sluggishness. However, let us now focus on the latter.

Högenauer noted that of the three times the yellow card procedure was triggered, the Commission withdrew its proposal only once, and even in that case because it didn’t believe that the proposal would pass the legislative process, rather than because of national parliaments’ dissent. Also, the Commission’s engagement with the national parliaments’ comments was deemed insufficient.

Bowing to the loud minority?

It’s not hard to agree that the Commission’s response to the parliaments’ concerns has to be fully adequate for the mechanism to be credible. However, it is more difficult to see why the absence of proposals withdrawn because of the mechanism should be a justified source of frustration at this point.

In the yellow card procedure, it is by definition the minority of parliaments that voice their concerns over subsidiarity. Due consideration to the concerns should be given, but allowing the minority of parliaments to easily block EU laws before they are even proposed seems overly aggressive. If we one day see the majority of national parliaments opposing a Commission proposal, there will certainly be more legitimacy behind the claims.

If it were any other way, not only would it amount to minority rule, but also to bypassing the institutions primarily in charge of EU lawmaking, namely the European Parliament and the Council. National parliaments directly represent the people, but so does the European Parliament. The Council of Ministers, for its part, is the arm of national governments which are accountable to national parliaments. Democracy doesn’t end when the legislative proposal is put forward – for better or for worse, that’s when it usually begins. At that point, MEPs and the Council can take into account the remarks of the national parliaments when deliberating on the proposal.

Parliaments, do your job

From this it is apparent that the best way for national parliaments to gain more influence is to perform their task better. Admittedly, the eight-week deadline is a constraint, but, as Anna-Lena Högenauer remarked, past examples of successful coordination between national parliaments to issue complaints to the Commission exist. According to Högenauer, one of the past three yellow cards was triggered thanks to leadership from the Dutch parliament, and another one through coordination by the Danish and British parliaments. This appears to be the most efficient way forward.

The secret to gain influence for parliaments seems to be readiness to react to invasive proposals, and coordination with other likeminded parliaments. These are qualities that are expected of any individual or group which seeks to exercise influence in society. Only this way can parliaments manage to trigger the orange card procedure if necessary. It is when the national parliaments manage to form a more united front to push their case that the Commission should be less likely to leave them unsatisfied.

Footnotes

¹ To be more precise, each EU Member State has two votes in the mechanism. In countries with unicameral parliaments, the sole house of parliament has two votes. In countries with bicameral parliaments, each house has one vote. The quorum is calculated on the basis of these votes, but for the sake of simplicity this article refers to “parliaments” in the context.

² A video recording of Anna-Lena Högenauer’s presentation on national parliaments’ role in EU decision-making from February 3 can be accessed at http://www.pol.ed.ac.uk/events/transatlantic_seminars/webcasts.

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