CONFERENCE REPORT IMPLEMENTATION OF THE SUBSIDIARITY PRINCIPLE Organised by REGLEG and CALRE, in cooperation with the Committee of the Regions 19 MAY 2008 Luc Van den Brande, Izaskun Bilbao, Geert Bourgeois INTRODUCTION The principle of subsidiarity is one of the core issues on the agenda of both the Conference of European Regions with Legislative Power (REGLEG) and the Conference of European Regional Legislative Assemblies (CALRE). As such, the implementation of this principle, which is of crucial importance to national and regional parliaments and regions with legislative power, is a topic that needs debate. Moreover, it is apparent that also for the Committee of Regions this principle is of utmost importance. Therefore a debate about the current practice of subsidiarity monitoring proves to be more than useful. In addition, whatever the outcome of the ratification of the Lisbon Treaty may be, the achievements of this Reform Treaty as regards the principle of subsidiarity need close attention. This report compiles the speeches, views and conclusions of the Conference on the implementation of the principle of subsidiarity. In Chapter I of the report, the political reality of the principle is examined. The second Chapter looks at the access of regions with legislative powers to the European Court of Justice. Chapter III regards the subsidiarity monitoring at the Committee of Regions and the last Chapter points out the conclusions of the conference. CONFERENCE REPORT • BRUSSELS - 19 MAY 2008 1 SUBSIDIARITY, THE POLITICAL REALITY Luc Van den Brande, President of the Committee of the Regions The subsidiarity monitoring provided for by the institutional reform entails three interlinked priorities: • dialogue on the theory and expectations with respect to the goal of "better lawmaking"; • partnership between the various actors, among whom REGLEG and CALRE are of course two essential partners; • institutional cooperation in order to provide a collective, coherent contribution to drafting, implementing and assessing the impact of European legislation on local and regional government and on citizens. The Committee of the Regions (COR) proposes to make the "subsidiarity mechanism", as provided for in the Treaty and protocols, a policy instrument for creating a subsidiarity culture and multilevel approach to the production and drafting of European legislation. The COR has a number of instruments at its disposal in order to ensure that the voices of local and regional authorities are heard on subsidiarity matters and their views adequately represented in the relevant EU bodies. One of these is provided by the COR subsidiarity monitoring network. The COR plans to strengthen its role in the future by broadening it and by envisaging distinct consultation possibilities at different phases of the (pre)legislative process. With the help of this network, the COR will be involved in the three phases where subsidiarity screening takes place: 1) before a proposal is launched (ex ante) through the collection of impact assessments from local and regional authorities; 2) once a proposal has been presented and before its adoption as legislation through consultations of the subsidiarity monitoring network or as part of the early-warning system, giving us the chance to cooperate with national parliaments; 3) at the final stage, after legislation has been adopted (ex post), when the COR may consider bringing an action before the Court. In addition, the organisation of regular subsidiarity forums will also be a tool which will, on the one hand, help the COR to get in touch with all the players involved and receive fresh input from academia, and on the other hand, facilitate the establishment of interinstitutional relations by formalising and strengthening cooperation channels with national and, in particular, regional parliaments, the European Parliament and the European Commission. By strengthening the mechanisms for applying and monitoring the subsidiarity and proportionality principles, the Lisbon Treaty has taken a further step towards multilevel governance. This involves in particular a shared responsibility which imposes on each institution an obligation to consistently verify compliance with the principle of subsidiarity. In such a context, it is particularly important to ensure the mainstreaming of an aware, sound subsidiarity debate into the COR political process. Furthermore, the prospect of the entry into force of the Lisbon Treaty is pushing the COR to further co-operate with its institutional partners and with the national and regional parliaments and regional governments. The renewed procedures and mechanisms envisaged by the Treaty are crucial for the establishment of a real subsidiarity culture in order to ensure effective monitoring of the application of the subsidiarity principle, especially given the tight deadlines involved. Therefore, cooperation among all the players involved in subsidiarity monitoring at the regional, national and European levels is of paramount importance. The COR takes the initiative in fostering a "subsidiarity partnership" amongst all the parties concerned. Cooperation with regions with legislative powers will be of particular importance because they can play a key role in the national and European legislative process in view of their competences, institutional position and expertise. CONFERENCE REPORT • BRUSSELS - 19 MAY 2008 5 For the COR, the pre-legislative phase is the most relevant one for considering the legitimacy and proportionality of Community action. We must therefore step up our capacity to analyse the territorial impact of Community legislation. Moreover, improvements could be made to the consultation mechanism under the latest subsidiarity monitoring network. The early-warning mechanism might also become a visible political lever for involving local authorities in subsidiarity monitoring. In the absence of explicit references to the COR in this process, political commitment is required. This is why I intend to step up future cooperation with the national parliaments, developing a modus operandi to ensure that the voice of local and regional authorities in the 27 Member States is taken into account before national parliaments decide on the subsidiarity question, during the eight-week period provided for in the protocol. The COR has the right to bring an action before the Court of Justice but must exercise that right with caution. In fact, this competence has to be read as a logical consequence of the involvement of the COR in the EU legislative process. In this regard, I particularly recall the advice we received at our extraordinary Bureau meeting in Luxembourg in 2005 from Judge Timmermans of the ECJ, who highlighted the close link between the admissibility of a possible action by the COR before the Court on grounds of subsidiarity non-compliance and the Committee having previously raised such issues in a relevant opinion on the matter. Subsidiarity is an opportunity for greater involvement of each level of governance in the EU policy process. The COR is the institution where the relevance of truly European multilevel governance is most effectively expressed. Given that compliance with the subsidiarity principle is one of the foremost components of multilevel governance, it is imperative that the COR and its partners engage in a reciprocal understanding of political contexts, legislative backgrounds and subsidiarity monitoring procedures put in place by the different players involved. Dialogue and exchange of best practices – such as we are engaging in at today's seminar – is most welcome inasmuch as it constitutes an appropriate forum in which to discuss and promote the ideal of a democracy based on interaction between the local, regional, national and European levels. 6 CONFERENCE REPORT • BRUSSELS - 19 MAY 2008 GEERT BOURGEOIS Regions with Legislative Powers (REGLEG) - Presidency Our topic today is subsidiarity – an issue on which I would like to share some thoughts on behalf of the Flemish presidency of REGLEG. The very idea of subsidiarity needs to be further fleshed out, as indeed does the concept of multilevel governance – a term which implies the need to jettison the hierarchical idea of the EU being situated above the Member States, the Member States above the regions, and the regions above the towns and local authorities. Instead, we must forge partnerships between the various tiers of government – and that involves decisions being taken from the bottom up. The motto, in other words, must be consultation at the appropriate level. That is the true meaning of subsidiarity. Thus, it is essential that all draft legislation should comply with the subsidiarity principle. A legislative proposal that is widely accepted – including by the regions and subnational entities in Europe – strengthens the democratic legitimacy of the European legislator. As the current incumbent of the REGLEG presidency, Flanders will do its utmost to ensure that the subsidiarity principle receives the attention due to it under the new Lisbon Treaty. Despite the Treaty's uncertain future, we nonetheless welcome the advances it makes for regions with legislative powers. It is important that the subsidiarity principle should be applied during the different stages of the European decision-making process, i.e. during the preliminary stage, during the stage of ex-ante political monitoring and during the stage of ex-post judicial control. During the preliminary stage of the legislative process, it is desirable that