Sporting Lisbon and yellow cards

Saturday, 01 March 2014
Richard Frimston considers power-sharing in the EU since the Lisbon Treaty.

Footballing analogies can be unhelpful, as they can exclude many for whom the game is not beautiful. Two halves do not always a whole make. Sometimes, however, football talk cannot be avoided – and yellow cards are a case in point.

The 2009 Lisbon Treaty made some significant changes to the process of EU law-making and to the balance of powers in the various EU institutions. But it is only now that we are beginning to see some of the effects.

The Centre for European Reform often produces interesting insights, and Hugo Brady, a senior research fellow at the centre, has written very well on this topic. The principle of subsidiarity was established in article 5 of the Treaty on European Union (TEU). Protocol 2 to the TEU on the application of the principles of subsidiarity and proportionality also defines how the subsidiarity principle works. The Lisbon Treaty considerably strengthened the subsidiarity principle by introducing new powers for national parliaments.

The principle of subsidiarity aims to establish the most appropriate level for powers that are shared between the EU and the member states, whether at European, national or local levels: the EU should only intervene if it is able to act more effectively than individual member states.

Protocol 2 lays down three criteria if the EU is to intervene:

  • Does the action have cross-border effects that cannot be solved by member states?
  • Would national action or inaction be contrary to the needs of the TEU?
  • Does action at a European level have clear advantages?

If action is necessary, then it should be taken at local level wherever possible.

Subsidiarity and proportionality are linked principles. Proportionality means that action to meet the objectives set by the TEU should not go beyond what is necessary.

The Lisbon Treaty gave national parliaments the right to police subsidiarity with a new yellow-card system. Each parliament has two votes, or one per chamber for the 13 member states with two-chamber parliaments. Each chamber that votes for a yellow card provides a reasoned opinion as to why it believes the EU law in question oversteps the mark. For a yellow card to be effective, 19 such opinions are needed, or 14 where justice legislation is involved.

The yellow card has genuinely given the national parliaments of member states more power in the EU law-making process and is thus making them more assertive

National parliaments have so far only issued yellow cards to EU law twice. In 2012, they did so in relation to the Monti II Regulation on the right to strike. In October 2013, parliaments in Cyprus, Hungary, Ireland, Malta, the Netherlands, Slovenia, Sweden, Romania, and the UK, and also the French and Czech senates, yellow-carded a proposal to create a European Public Prosecutor’s Office. It is said attempts by the Commission to pressurise wavering parliaments on the latter proposal may have actually turned more parliaments and chambers against it.

The yellow card has genuinely given the national parliaments of member states more power in the EU law-making process and is thus making them more assertive as they begin to understand this. One national parliament, or even a single chamber, now has really strong means to show its own government that it does not agree with a particular approach to EU policy. The French government and its National Assembly supported the creation of the proposed EU prosecutor. The French Senate did not.

National governments may therefore be more careful to consult their parliaments first before doing any deal in Brussels. Might the yellow-card process have improved democratic accountability within member states since the Lisbon Treaty? Might yellow cards persuade eurosceptics across the EU that the limits on the powers of the EU Commission, Council and Parliament under the Lisbon Treaty are better than some of the media would have us believe?

National parliaments are beginning to talk to each other and cooperate to limit EU power. The UK House of Lords EU Committee and its sub-committees A-F are perhaps the most highly effective and highly regarded national parliament committees in the EU. While UK influence in the EU has generally sunk to near zero, might this be a new mechanism to affect EU law-making?

With the EU Parliament elections in May, the continuing debate is likely to get noisier, but not necessarily wiser or better informed. What will the pitch look like when the referee blows the whistle? Or is it only half-time?

Author block
Richard Frimston

Richard Frimston TEP is a Partner and Head of the Private Client team at Russell-Cooke LLP, and Chair of the STEP EU Committee.

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