On What Grounds Can I Base My Opposition to a Proposed Piece of Legislation?

The Principles of Subsidiarity and Proportionality

It is extremely important when attempting to oppose a piece of proposed new legislation to understand the principles of subsidiarity and proportionality, because it underlies everything the EU does in areas where it does not have the right of exclusive competence. In plain English it means that the EU should not get involved in matters which do not concern it. The official version of this is as follows:

"1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality (Protocol 2).

What this means in practice is that the Commission must justify the relevance of any proposals against this principle, and in fact, when proposals go to the European Parliament committees it is one of the first tests they look at.

So if you feel that a proposal is another example of over regulation then you should try to make the following points to both the Commission and the relevant European Parliament committee

• Does your business/industry have transnational aspects which cannot be satisfactorily regulated by our own national laws? If it doesn´t then it should really be a matter for national law, rather than Community law.
• Will this proposal impose a burden on you, whether financial or administrative? Do you feel that that burden is fair and proportionate given that objective that the proposal is trying to achieve? If not, explain how it will affect you in practice.
• Do you feel that the national laws governing your business meet the objectives that the proposal is trying to achieve? A proposal always lists an objective, i.e. a proposal to regulate bank transfers would have as its objective to prevent fraud. So check to see what objective is listed in the proposal, and then try to establish whether existing national law meets those objectives. If it does then make this point to the Commission and the European Parliament committee dealing with it.
• Do you agree with the principle that the proposal is trying to achieve but dispute the method that is being used to achieve it? Community proposals should provide Member States with alternative ways to achieve the objectives of the measure.
• Do you believe that action at EU level provides a clear benefit by reason of the scale of the problem that the proposal is attempting to address or its effects? If not, why not?
• Do you believe that if your national government legislated in the area covered by the proposal, rather than the EU, the national economy, or national interests would be significantly damaged?

A short letter, covering these points, will certainly add weight to any case you are trying to bring. As compliance with the principle of proportionality and subsidiarity is one of the first things the European Parliament committees look at, there is a logic in splitting your objections into two parts.

Arguments against the proposal on the grounds that it does not comply with the principle of proportionality and subsidiarity. If that is upheld, the European Parliament will pass the proposal back to the Commission, and tell them it either needs redrafting or, exceptionally, that they should not be bringing a proposal in this area.

Once a proposal has been accepted as being proportional, you are then into the fine detail, in terms of the wording, and the technical arguments in relation to the proposal. So objecting to a proposal is a process that is usually best done initially on the issue of proportionality, and then on the more technical aspects of the proposal.