The principle of subsidiarity
In areas of ‘shared competence’ (see Section C below), the principle of subsidiarity, laid down in the Treaty on European Union, defines the circumstances in which it is preferable for action to be taken by the Union, rather than the Member States.
Legal basis
Article 5(3) of the Treaty on European Union (TEU) and Protocol (No 2) on the application of the principles of subsidiarity and proportionality.
Objectives
The principles of subsidiarity and proportionality govern the exercise of the EU’s competences. In areas in which the EU does not have exclusive competence, the principle of subsidiarity seeks to safeguard the ability of the Member States to take decisions and action and authorises intervention by the Union when the objectives of an action cannot be sufficiently achieved by the Member States, but can be better achieved at Union level, ‘by reason of the scale and effects of the proposed action’. The purpose of including a reference to the principle in the EU Treaties is also to ensure that powers are exercised as close to the citizen as possible, in accordance with the proximity principle referred to in Article 10(3) of the TEU.
Achievements
A. Origin and history
The principle of subsidiarity was formally enshrined by the TEU, signed in 1992: the TEU included a reference to the principle in the Treaty establishing the European Community (TEC). The Single European Act, signed in 1986, had already incorporated a subsidiarity criterion in environmental policy, however, albeit without referring to it explicitly as such. In its judgment of 21 February 1995 (T-29/92), the Court of First Instance of the European Communities ruled that the principle of subsidiarity was not a general principle of law, against which the legality of Community action should have been tested, prior to the entry into force of the TEU.
Without changing the wording of the reference to the principle of subsidiarity in the renumbered Article 5, second paragraph, of the TEC, the Treaty of Amsterdam, signed in 1997, annexed to the TEC a Protocol on the application of the principles of subsidiarity and proportionality (hereinafter ‘1997 protocol’). The overall approach to the application of the principle of subsidiarity, previously agreed at the 1992 European Council in Edinburgh, thus became legally binding and subject to judicial review via the protocol on subsidiarity.
The Treaty of Lisbon amending the TEU and TEC, signed in 2007, incorporated the principle of subsidiarity into Article 5(3) of the TEU and repealed the corresponding provision of the TEC while retaining its wording. It also added an explicit reference to the regional and local dimension of the principle of subsidiarity. What is more, the Treaty of Lisbon replaced the 1997 protocol with a new Protocol No 2, the main difference being the new role of national parliaments in ensuring compliance with the principle of subsidiarity (1.3.5).
B. Definition
The general aim of the principle of subsidiarity is to guarantee a degree of independence for a lower authority in relation to a higher body or for a local authority in relation to central government. It therefore involves the sharing of powers between several levels of authority, a principle which forms the institutional basis for federal states.
When applied in the context of the EU, the principle of subsidiarity serves to regulate the exercise of the Union’s non-exclusive powers. It rules out Union intervention when an issue can be dealt with effectively by Member States themselves at central, regional or local level. The Union is justified in exercising its powers only when Member States are unable to achieve the objectives of a proposed action satisfactorily and added value can be provided if the action is carried out at Union level.
Under Article 5(3) of the TEU, there are three preconditions for intervention by Union institutions in accordance with the principle of subsidiarity: (a) the area concerned does not fall within the Union’s exclusive competence (i.e. non-exclusive competence); (b) the objectives of the proposed action cannot be sufficiently achieved by the Member States (i.e. necessity); (c) the action can therefore, by reason of its scale or effects, be implemented more successfully by the Union (i.e. added value).
C. Scope
1. The demarcation of Union competences
The principle of subsidiarity applies to areas of ‘shared competence’ listed in Article 4(2) of the Treaty on the Functioning of the European Union (TFEU), which is not exhaustive. Distinct from the ‘exclusive competence’ conferred upon the Union (Article 3) and the competence to coordinate, support or supplement actions of the Member States (Articles 5 and 6), shared competences are areas where the Member States may take initiative only ‘to the extent that the Union has not exercised its competence’ (Article 2(2) TFEU). These are competences that can be pre-empted wholly or partially by the Union, becoming exclusive by virtue of their exercise until the Union decides to cease exercising them. Notably, these areas include the internal market, social policy as defined in the Treaty, economic, social and territorial cohesion, agriculture and fisheries (excluding the conservation of marine biological resources), the environment, consumer protection, transport, trans-European networks, energy, the area of freedom, security and justice, and major health security issues.
2. Where the principle of subsidiarity applies
The principle of subsidiarity applies to all the EU institutions and has practical significance for legislative procedures in particular. The Treaty of Lisbon has strengthened the role of both the national parliaments and the Court of Justice in monitoring compliance with the principle of subsidiarity. It not only introduced an explicit reference to the subnational dimension of the subsidiarity principle, but also strengthened the role of the European Committee of the Regions and made it possible, at the discretion of national parliaments, for regional parliaments with legislative powers to be involved in the ex ante ‘early warning’ mechanism.
D. National parliamentary scrutiny
In keeping with the second subparagraph of Article 5(3) and Article 12(b) of the TEU, national parliaments monitor compliance with the principle of subsidiarity in accordance with the procedure set out in Protocol No 2. Under the ex ante ‘early warning’ mechanism referred to above, any national parliament or any chamber of a national parliament has eight weeks from the date of forwarding of a draft legislative act to send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. If reasoned opinions represent at least one third (one vote per chamber for a bicameral parliamentary system and two votes for a unicameral system) of the votes allocated to the national parliaments, the draft must be reviewed (‘yellow card’). The institution which produced the draft legislative act may decide to maintain, amend or withdraw it, giving reasons for that decision. For draft acts relating to police cooperation or judicial cooperation in criminal matters, the threshold is lower (one quarter of the votes). If, in the context of the ordinary legislative procedure, at least a simple majority of the votes allocated to national parliaments challenge the compliance of a proposal for a legislative act with the principle of subsidiarity and the Commission decides to maintain its proposal, the matter is referred to the legislator (Parliament and the Council), which takes a decision at first reading. If the legislator considers that the legislative proposal is not compatible with the principle of subsidiarity, it may reject it subject to a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament (‘orange card’).
To date, the ‘yellow card’ procedure has been triggered three times, while the ‘orange card’ procedure has never been used. In May 2012, the first ‘yellow card’ was issued with regard to the Monti II proposal for a regulation on collective action rights in relation to the freedom of establishment and to provide services. In total, 12 out of 40 national parliaments or chambers thereof considered that the content of the proposal was not consistent with the principle of subsidiarity. The Commission ultimately withdrew its proposal, though it took the view that the subsidiarity principle had not been infringed. In October 2013, another ‘yellow card’ was issued by 14 chambers of national parliaments in 11 Member States following the submission of the proposal for the establishment of the European Public Prosecutor’s Office. After examining the reasoned opinions received from the national parliaments, the Commission decided to maintain the proposal, arguing that it was in line with the subsidiarity principle. In May 2016, a third ‘yellow card’ was issued by 14 chambers in 11 Member States against the proposal for a revision of the directive on the posting of workers. The Commission gave extensive reasons for maintaining its proposal, given that it did not infringe the principle of subsidiarity, the posting of workers being, by definition, a transnational issue.
The Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) serves as a useful platform for national parliaments to share information related to subsidiarity control. In addition, the Subsidiarity Monitoring Network (SMN) maintained by the European Committee of the Regions facilitates the exchange of information between local and regional authorities and the EU institutions. SMN members include regional parliaments and governments with legislative powers, local and regional authorities without legislative powers and local government associations in the EU. It is also open to national delegations of the European Committee of the Regions and chambers of national parliaments.
E. Recent institutional developments
In November 2017, the Commission established a Task Force on subsidiarity, proportionality and doing less more efficiently, which delivered its report in July 2018. On the basis of its recommendations, the Commission published a ‘subsidiarity package’ in October 2018, introducing a grid for assessing subsidiarity and proportionality in impact assessments, evaluations and explanatory memorandums.
The principles of subsidiarity and proportionality were central to the Conference on the Future of Europe (April 2021 to May 2022), which produced 49 proposals containing 326 measures related to key priorities and challenges for Europe, including the issue of democracy. Parliament’s resolution of 22 November 2023 proposed strengthening the review of subsidiarity by the Court of Justice, extending the eight-week period for national parliaments to twelve weeks, incorporating regional parliaments’ opinions into national reasoned opinions, and introducing a ‘green card’ mechanism allowing national parliaments to suggest legislative initiatives.
Since the Conference, the concept of ‘active subsidiarity’ has gained prominence. The 11th Subsidiarity Conference in 2024 focused on ‘Better regulation and active subsidiarity: keys for an EU that delivers’. In its 2024 annual report (published on 8 September 2025), the Commission reaffirmed that active subsidiarity and full engagement with local and regional authorities remain key priorities for the 2024-2029 term.
F. Judicial review
Compliance with the principle of subsidiarity may be reviewed retrospectively (following the adoption of the legislative act) by means of a legal action brought before the Court of Justice of the European Union. That is also stated in the protocol. The Union institutions enjoy wide discretion in applying this principle, however. In its judgments in cases C-84/94 and C-233/94, the Court found that compliance with the principle of subsidiarity was one of the conditions covered by the requirement to state the reasons for Union acts, under Article 296 of the TFEU. This requirement is met if it is clear from reading the recitals that the principle has been complied with. In a more recent landmark judgment (Case C-547/14, Philip Morris, paragraph 218) in 2016, the Court reaffirmed that it must verify ‘whether the Union legislator was entitled to consider, on the basis of a detailed statement, that the objective of the proposed action could be better achieved at Union level’. Concerning procedural safeguards and, in particular, the obligation to state reasons as regards subsidiarity, the Court recalled that observance of that obligation ‘must be evaluated not only by reference to the wording of the contested act, but also by reference to its context and the circumstances of the individual case’ (paragraph 225).
A Parliament working paper on the principles of subsidiarity and proportionality published in 2021 found that ‘the Court of Justice has never struck down a measure for breaching the principle of subsidiarity’ and suggests that ‘an independent subsidiarity chamber, composed of presidents of national constitutional courts, should be established in order to overcome this political bias and improve the quality of legislation reviews’.
Member States may bring actions for annulment before the Court against a legislative act on grounds of infringement of the principle of subsidiarity on behalf of their national parliament or a chamber thereof, in accordance with their legal system. The European Committee of the Regions may also bring such actions against legislative acts if the TFEU provides that it must be consulted. The recent Draghi report argued that, despite such important powers, these actors have not often challenged the Commission’s legislative proposals. The report advocates for an EU-wide inquiry that would examine the reasons behind such an approach on the part of the national parliaments.
In August 2024, the first action was brought by a national parliament for breach of the subsidiarity principle under Protocol No 2 against Regulation (EU) 2024/1351 on asylum and migration management (Case C-553/24, brought by the French National Assembly). This landmark action, initiated by only 60 deputies out of 577 pursuant to Article 88-6 of the French Constitution, demonstrates that subsidiarity control has become accessible to parliamentary minorities in certain national parliaments, thereby potentially strengthening democratic oversight and the enforcement of subsidiarity at both national and European levels.
Role of the European Parliament
Parliament was the instigator of the concept of subsidiarity and, on 14 February 1984, in adopting the draft Treaty on European Union, proposed a provision stipulating that in cases where the Treaty conferred on the Union a competence which was concurrent with that of the Member States, the Member States could act as long as the Union had not legislated. Moreover, it stressed that the Community should only act to carry out those tasks which could be undertaken more effectively in common than by individual states acting separately.
Parliament was to reiterate these proposals in many resolutions (for example those of 23 November and 14 December 1989, 12 July and 21 November 1990, and 18 May 1995), in which it reaffirmed its support for the principle of subsidiarity.
A. Interinstitutional agreements
Parliament adopted a series of measures to assume its role under the Treaties as regards the application of the principle of subsidiarity. Pursuant to Rule 43 of its Rules of Procedure, ‘during the examination of a proposal for a legislative act, Parliament shall pay particular attention to whether that proposal respects the principles of subsidiarity and proportionality’. The Committee on Legal Affairs is the parliamentary committee with horizontal responsibility for monitoring compliance with the principle of subsidiarity. In this regard, it regularly draws up a report on the Commission’s annual reports on subsidiarity and proportionality.
On 25 October 1993, the Council, Parliament and the Commission signed an interinstitutional agreement on procedures for implementing the principle of subsidiarity that demonstrated clearly the three institutions’ eagerness to take decisive steps in this area. They thus undertook to comply with the principle of subsidiarity. The agreement lays down, by means of procedures governing the application of the principle of subsidiarity, arrangements for the exercise of the powers conferred on the Union institutions by the Treaties, so that the objectives laid down in the Treaties can be attained. The Commission undertook to take into account the principle of subsidiarity and show that it has been observed. The same applies to Parliament and the Council, in the context of the powers conferred on them.
Under the terms of the interinstitutional agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making (replacing the Agreement of December 2003 and the Interinstitutional Common Approach to Impact Assessment of November 2005), the Commission must explain in its explanatory memoranda how the proposed measures are justified in the light of the principle of subsidiarity and must take this into account in its impact assessments. Moreover, in concluding the Framework Agreement on relations between the European Parliament and the European Commission of 20 November 2010, Parliament and the Commission undertook to cooperate with the national parliaments in order to facilitate the exercise by those parliaments of their power to scrutinise compliance with the principle of subsidiarity.
B. European Parliament resolutions
In its resolution of 13 May 1997, Parliament already made clear its view that the principle of subsidiarity was a binding legal principle but pointed out that its implementation should not obstruct the exercise by the EU of its exclusive competence, nor be used as a pretext to call into question the acquis communautaire (now the EU acquis). In its resolution of 8 April 2003, Parliament added that disputes should preferably be settled at political level, while taking into account the proposals made by the Convention on the Future of Europe concerning the establishment by the national parliaments of an ‘early warning’ mechanism in the area of subsidiarity. This mechanism was indeed incorporated into the Treaty of Lisbon (see above and 1.3.5).
In its resolution of 13 September 2012, Parliament welcomed the closer involvement of the national parliaments in scrutinising legislative proposals in the light of the principles of subsidiarity and proportionality and suggested that any ways to remove impediments to national parliaments’ participation in the subsidiarity control mechanism should be investigated.
In its resolution of 18 April 2018, Parliament noted the sharp increase in the number of reasoned opinions submitted by national parliaments, which reveals their growing involvement in the Union’s decision-making process. It also welcomed national parliaments’ interest in adopting a more proactive role through the use of a ‘green card’ procedure. In this respect, it recommended making full use of the existing tools enabling national parliaments to participate in the legislative process without creating new institutional and administrative structures.
In its resolution of 13 February 2019, Parliament highlighted the fundamental role of local authorities and, in particular, regional parliaments with legislative powers. It also took note of the recommendations of the Task Force on subsidiarity, proportionality and doing less more efficiently but pointed out that many of them, particularly regarding the role of national parliaments and the need to reform the early warning system, had already been highlighted by Parliament.
In its resolution of 24 June 2021, Parliament pointed out that local and regional authorities implement and use approximately 70 % of EU legislation and called on the Commission to better involve them in its consultation processes, and to integrate a ‘model grid’ to assess the application of principles of subsidiarity and proportionality throughout the decision-making process. Parliament also highlighted that the current structure of the subsidiarity control mechanism procedure results in national parliaments dedicating excessive amounts of time to technical and legal assessments with short deadlines, which complicates the goal of holding a deeper political discussion on European politics.
In its resolution of 23 November 2023, Parliament noted the significant increase in reasoned opinions from national parliaments (rising from 9 in 2020 to 34 in 2022) while reaffirming that no ‘orange card’ has ever been used since the entry into force of the Treaty of Lisbon. It called for earlier involvement of national parliaments in the legislative procedure and for more detailed Commission explanations to enable solid subsidiarity assessments. Parliament also urged the Council to increase transparency by publishing more documents, particularly Member States’ positions, thereby enhancing parliamentary scrutiny.
In its resolution of 17 January 2024, Parliament acknowledged national parliaments’ request to extend the eight-week period for issuing reasoned opinions and called for the introduction of a twelve-week period in the framework of the next Treaty revision. Parliament also suggested establishing a ‘green card’ procedure whereby at least one third of national parliaments could request that the Commission or Parliament submit legislative proposals, thereby positively influencing the European debate.
Christophe BEAUDOUIN / JAGODA KAROLINA MACIEJEWSKA / Mariusz Maciejewski