(2) Political

(2) Political – Sponsored by Notary Public blog

 Treaty of Amsterdam Protocol (1997) – Comm. must justify new proposals in light of subs. +

Council & EP to consider them (explanatory memorandum + annual report on subs.)

 Lisbon Treaty – new resp. to nat. parliaments to send reasoned opinion on whether measure complies

w/subs. when suspect that EU legislator has exceeded powers (Art 12 TEU + Protocol on Role of Nat.


(i) Yellow Card – 1/3 votes against = drafting institution must review

(ii) Orange Card – majority vote against = Comm. must review  amend, withdraw, maintain (if

latter, justify compliance with subs.); if 55% against, possible block by EP/Council

EU LawCompetenceShort

(iii) Red Card – rejected from Lisbon (would’ve given veto power on majority basis)

 Intervention remains thin in practice – high threshold!

 Arguments against subsidiarity

(i) Primarily political pr. – dual test can always be interpreted in favour of Union action 

should instead ask if objectives of proposed action can only be achieved at EU level; if answer

is no, action to be taken by MS instead – would serve to distinguish b/w measures which will

produce EU outcome from those which must (Wyatt)

(ii) Too vague to be legally effective – treated as procedural mantra rather than constitutional tool

(iii) Proportionality is best tool for solving competency problems–subs. central flaw is that it

prioritizes Union goals as absolute and then proceeds to ask how best to achieve them/who

should do the implementing work. Doesn’t