This Note considers the background to the ‘yellow card’ subsidiarity early warning mechanism and its application in practice since the Lisbon Treaty came into force.
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Many EU Member States have long sought a greater role in the European Union decision-making process. Since the Treaty on European Union (the Maastricht Treaty) came into force in November 1993, there has been a Treaty Article on the principle of subsidiarity – that action should be taken at national level, unless there are compelling reasons for the EU (or formerly the European Community) to act. In addition, EU Treaty Declarations and Protocols since Maastricht have sought to give national parliaments a greater role in responding to EU proposals.
Attached to the Treaty of Lisbon, which came into force in December 2009, was an enhanced subsidiarity and proportionality Protocol, which set out a ‘yellow/orange card’ subsidiarity early warning mechanism giving national parliaments an opportunity to object to legislative proposals with a view to having them amended or withdrawn. National parliaments may submit a ‘reasoned opinion’ within an eight‐week period to the institution proposing the draft legislative act (usually the Commission), outlining why the proposal does not comply with the principle of subsidiarity. If a third or more of EU national parliaments submit reasoned opinions (the threshold drops to a quarter for legislation in the field of cooperation in criminal matters), the originating institution is usually bound to review its proposal with a view to maintaining, amending or withdrawing it. If more than half the Member States submit reasoned opinions and the institution decides to maintain the proposal, it must submit a reasoned opinion in support of this decision to the Council and European Parliament, each of which can strike down the proposal. Under the Protocol national parliaments can apply to the Court of Justice (through their Member State government) for judicial review of EU legislation on the grounds of infringement of the subsidiarity principle.