Subsidiarity: A Yellow Card

Praise Jehovah! It has finally come to pass. The national parliaments of the Member States have issued their first ever yellow card under art. 7 of Protocol (No. 2) on the Application of the Principles of Proportionality and Subsidiarity (p. 206 here). As a refresher, the article says, in the relevant parts:

 2. Where reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments (...) the draft must be reviewed. (...)

After such review, the Commission (...) may decide to maintain, amend or withdraw the draft.
Reasons must be given for this decision.

The lucky proposal concerns the right of collective argument, specifically the Commission proposal in dossier 2012/0064(APP). At the time of writing, there are reasoned opinions issued by the following Member States (with the number of votes between brackets): Belgium (1), Denmark (2), Finland (2), France (1), Latvia (2), Luxembourg (2), Malta (2), Poland (1), Portugal (2), Sweden (2), the Netherlands (1), for a total of 18 votes, i.e. exactly one third of 27*2=54 total votes available. (Information courtesy of IPEX here.)

While we eagerly await the Commission's review, we might start by taking a look at what it had to say for itself in the original proposal:

 3.3. Subsidiarity and proportionality principles

(...) The objective of the Regulation, to clarify the general principles and EU rules applicable to the exercise of the fundamental right to take industrial action within the context of the freedom to provide services and the freedom of establishment, including the need to reconcile them in practice in cross-border situations, requires action at European Union level and cannot be achieved by the Member States alone.

Moreover, in line with the Treaty, any initiative in this area will need to respect not only the autonomy of social partners but also the different social models and diversity of industrial relation systems in the Member States.

As regards the contents of the proposal, respect for the subsidiarity principle is further ensured by recognition of the role of national courts in establishing the facts and ascertaining whether actions pursue objectives that constitute a legitimate interest, are suitable for attaining these objectives, and do not go beyond what is necessary to attain them. It equally recognises the importance of existing national laws and procedures for the exercise of the right to strike, including existing alternative dispute-settlement institutions, which will not be changed or affected. Indeed, the proposal does not create a mechanism for the informal resolution of labour disputes at national level with a view to introducing some form of pre-jurisdictional control over union actions (as suggested in the 2010 Monti report), and restricts itself to indicating the role of alternative informal resolution mechanisms that exist in a number of Member States.

By Commission standards, this is actually an uncharacteristically thorough analysis of the question of subsidiarity. That does not change the fact, of course, that it is also very wrong. If this kind of reasoning is enough to explain why a Europe-wide regulation of the right to strike is necessary, literally anything can survive subsidiarity review.

Turning to the substance of the proposal, I have to say that subsidiarity would not be my first concern. Instead, I'm more concerned about the utter redundancy of the substantive text. Running to a staggering 4 articles on 1½ pages, the proposal says pretty much nothing of any great interest. Throughout, it studiously avoids upsetting the law anywhere. Or, as art. 1(2) of the proposal puts it:

This Regulation shall not affect in any way the exercise of fundamental rights as recognised in the Member States, including the right or freedom to strike or to take other action covered by the specific industrial relations systems in Member States in accordance with national law and practices. Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take collective action in accordance with national law and practices.

Truer words were rarely spoken.

That said, it is important to recognise the significance of this use of the yellow card. It would be even better, of course, if the Commission were to actually withdraw or amend its proposal in response. We await its decision breathlessly...