The European Union and Hungarian regulations on the principle of subsidiarity
The relevant provisions of the Treaty of Lisbon
In general, the principle of subsidiarity is intended to ensure that decisions are taken at the lowest possible level. The Treaty of Maastricht has incorporated this principle into Community decision-making. The application of the principles of subsidiarity and proportionality was first regulated by a Protocol attached to the Treaty of Amsterdam, and then the examination of the application of the subsidiarity principle was included in a Protocol attached to the Constitutional Treaty.
According to Article 5 of the Treaty on the European Union, "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."
Since the Treaty of Lisbon entered into force, national parliaments of the EU Member States are vested with ex-ante and ex-post control functions regarding the application of the subsidiarity principle.
In the former case, the draft legislative act constitutes the object of the examination, which may result in the adoption of a reasoned opinion.
In the latter case, the examination concerns the promulgated Union legal act, which may lead to the initiation of what is called a subsidiarity action.
In both cases, the available timeframe for national parliaments is limited to eight weeks in the former case and two months in the latter case.
By virtue of Protocol 2 of the Treaty of Lisbon (Protocol 2), the Commission, the European Parliament and other Union institutions shall forward their draft legislative acts to national parliaments without delay (Article 4). According to Article 6, national parliaments may within eight weeks of the date of transmission of the proposal check whether the proposal complies with the principle of subsidiarity or not. (This is the early warning mechanism.) By virtue of Article 7, where a reasoned opinion on the non-compliance of a draft legislative act with the principle of subsidiarity shall represent at least one third of all the votes allocated to the national parliaments (two votes per national parliament), the draft legislative act must be reviewed. (This is the yellow card procedure.) With the orange card procedure, under ordinary legislative procedure, where a reasoned opinion on non-compliance with the principle of subsidiarity shall represent at least a majority of the votes allocated to the national parliaments, the final decision is not in the hands of the initiator of the draft legislative act. If a majority of 55% of the members of the Council or a majority of the votes cast in the European Parliament share the opinion of the majority of the national parliaments, "the legislative proposal shall not be given further consideration".
Regarding the promulgated Union legal act, Article 8 of Protocol 2 stipulates that a chamber of a national parliament can bring an action before the Court of Justice of the European Union. In accordance with the rules laid down in Article 263 of the Treaty on the Functioning of the European Union, the actions shall be instituted within two months of the publication of the legislative act on the grounds of infringement of the principle of subsidiarity. The regulations on the application of the national parliament's right to bring actions should take into consideration the distinctive features of Member States.
The Hungarian law
Tasks stemming from subsidiarity checks are carried out by the Committee on European Affairs by virtue of Act XXXVI of 2012 on the National Assembly and Parliamentary Resolution 10/2014 (24 February 2014) on Certain Provisions of the Rules of Procedure.
With regard to the ex-ante control of subsidiarity, if the Committee considers that a draft Union legislative act fails to comply with the principle of subsidiarity, it submits a report to the plenary on the adoption of a reasoned opinion within the eight-week period set down in Protocol 2. The plenary decides within 15 days.
The adopted reasoned opinion shall be sent by the Speaker to the Presidents of the European Commission, the European Parliament and the European Council as well as to the Government of Hungary.
With regard to the ex-post application of the subsidiarity principle, the Committee is entitled to propose to the Government, within one month of the publication of a Union legislative act, to bring an action before the Court of Justice of the European Union on the grounds of infringement of the principle of subsidiarity in accordance with Article 263 of the Treaty on the Functioning of the European Union. The Committee informs the Speaker of the initiative. Based on the initiative of the Committee, the Government brings an action before the Court of Justice of the European Union or rejects the submission of the action with a detailed justification. Before the submission of the action or the rejection of the submission, the Government may ask for consultation at the initiative of the National Assembly. The consultation takes place between the Government and the Committee.
Subsidiarity checks in the National Assembly
Before the Treaty of Lisbon entered into force, the Committee participated in pilot projects on subsidiarity checks initiated by COSAC (Conference of Community and European Affairs Committees of Parliaments of the European Union) between 2004 and 2009 on several European Union drafts.
Since the Treaty of Lisbon entered into force, the first reasoned opinion was adopted by the plenary on 21 October 2013. Based on Report J/12694 submitted by the Committee, the National Assembly affirmed in Parliamentary Resolution 87/2013 (22 October 2013) that the Proposal (COM(2013) 534; 2013/0255 (APP)) for a Council regulation on the establishment of the European Public Prosecutor's Office failed to comply with the principle of subsidiarity. Following an evaluation of the national parliament's reasoned opinions, the European Commission declared that they represent 18 votes and thereby exceed the threshold set down in Protocol 2. The European Commission thus started the review of the draft legislative act in accordance with the yellow card procedure as laid down in Protocol 2 and decided to uphold the proposal. The Commission's arguments were published in a Communication (COM(2013) 851).