D. A NEW ORANGE CARD?
The agreement reached on 19 February 2016 with the United Kingdom on the question of subsidiarity within the framework of the Tusk package was rendered obsolete by the result of the British referendum. It is not a matter of starting again from scratch given the result of the British referendum. Nevertheless, it contained a particular point aimed specifically at the subsidiarity check by the national parliaments. This could be reexamined.
Consequently, under the agreement, where reasoned opinions on a Union draft legislative acts non-compliance with the principle of subsidiarity represent at least 55% of all votes allocated to the national parliaments, the Council Presidency should add this issue to the Council agenda so that these reasoned opinions and any consequences drawn from them are subject to thorough consideration. Following such consideration, representatives of the Member States may terminate the examination of the draft act in question or amend it in line with the concerns raised. This amendment of Protocol N° 2 would lead to a more precise orange cardprocedure.
Under the terms of Protocol N° 2, the procedure is actually more complicated. If half of the national parliaments issue a reasoned opinion on the same legislative proposal, which requires adoption under the codecision procedure, the European Commission must then review the proposal and decide to maintain, modify or withdraw it. If it chooses to maintain it, the European Parliament and the Council should, before completing the first reading, verify the conformity of the text with the principle of subsidiarity. If the European Parliament, by a majority of the votes cast, or a majority of 55% of Council members believe it to be non-compliant, the legislative draft shall be considered rejected and shall not be given further consideration. This mechanism has not as yet ever been used.
E. SHOULD THE TREATIES BE REVISED?
Initial discussions within the Task Force set up by the European Commission offer approaches which may become relevant.
The first concerns the thresholds adopted for issuing a yellow card. It is indeed possible to question the effectiveness of a mechanism that generally requires a third of national parliaments in order to bring about a simple review of the text. Only three yellow cards have been submitted to the European Commission since the entry into force of Protocol N° 2, which reflects the relative difficulty reaching the required threshold. Of these three yellow cards, only one resulted in the withdrawal of a text 14 ( * ) . The two others resulted in a formal examination, with no amendments, only allowing for the identification of European Commissions priorities 15 ( * ) . Under these circumstances, it may be possible to lower a threshold considered to be relatively demanding even though the yellow card does not actually bind the European Commission.
A second course of action consists of the possibility, for national parliaments, to review the text in the light of subsidiarity as soon as substantial changes in the course of negotiations in the Council and the European Parliament become known. In effect, Protocol N° 2 limits the examination period of a text to eight weeks, that being before the actual start of the negotiations. In October 2015, our committee consequently adopted a political opinion, transmitted directly to the European Commission, to show that the draft regulation relating to structural measures improving the resilience of European Union credit institutions, presented in April 2014 and then extensively amended at the Council, did not respect the principle of subsidiarity 16 ( * ) . It would have been appropriate for the national parliaments to coordinate their actions concerning the draft within the framework set out for subsidiarity, insofar as our arguments qualify for this type of check.
Under these condition, your rapporteurs can only welcome such options. However, concerns exist about their effective implementation. Unlike the extension of response times at the beginning of the process or the examination times of delegated acts which may be considered within the framework of a relaxed reading of Protocol N° 2, the two options mentioned involve an alteration to the latter, initiating a review process of the Treaties, and can therefore only be considered in the medium and long term. As pointed out by the monitoring group in its report on the rebuilding of the European Union, revising the Treaties is not a priority at this time. It stands to absorb the necessary political impetus for the re-founding of the Union, while failing to respond to the current aspirations of European citizens. The primary concern is prioritising pragmatic solutions, which can be implemented very quickly, to achieve real, understandable and effective progress.
It is therefore appropriate to promote the development of a common declaration within the framework of COSAC, in which the European Commission undertakes to review the texts once a minimum threshold, lower than that under Protocol N° 2, is reached. This text also makes provision for a new forwarding of texts as soon as substantial changes have been made to them in the course of negotiations. This type of informal procedure is nothing new. The Commission has recently committed to examine European legislative initiatives by national parliaments, on a case by case basis, although not provided for by the Treaties. As regards subsidiarity, pilot experiments were conducted within the framework of COSAC in 2005. They heralded the establishment of dialogue on subsidiarity between the Commission and the national parliaments. Before being provided for by the Treaties, this took the form of an initiative to promote direct dialogue with the national parliaments focused on the application of the principle of subsidiarity and proportionality, presented by former European Commission President Mr José Manuel Barroso, following the negative referenda in France and the Netherlands in 2005 on the draft European Constitutional Treaty. This initiative was endorsed by the European Council at its meeting on 15 and 16 June 2006. The direct dialogue was launched on 1 September 2006 and existed until the entry into force of the Lisbon Treaty.
* 14 Proposal for a regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services (COM (2012) 130 final). The Senate by submitting a reasoned opinion to the European Commission contributed to reaching the required threshold.
* 15 Proposal for a regulation on the establishment of the European Public Prosecutor's Office (COM (2013) 534 final) and Proposal for a directive amending Directive 96/71/CE of 16 December 1996 concerning the posting of workers in the framework of the provision of services (COM (2016) 128 final). The Senate is not associated with the yellow card aimed at the review of the Directive of 1996 concerning the posting of workers.
* 16 Political opinion on the proposal for a regulation of the European Parliament and the Council on structural measures improving the resilience of European Union credit institutions (COM (2014) 43 final), 29 October 2015.