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Verifying conformity with the conferral and subsidiarity principles

Once you have identified the problem and its causes, you should verify if the EU has the right to take action and if it is better placed than the Member States to tackle the problem. You should keep in mind that the EU Charter of Fundamental Rights places legal limits on the Union's right to act. The Commission has therefore decided that proposals must be scrutinized for compatibility with the Charter21.

You should link the problem to at least one article of the Treaties and the objectives they contain, as this is the basis for Union's right to act (principle of conferral):

  • Is the issue you are dealing with linked to at least one article of the Treaty, and the objectives it sets out?
  • Is it an issue on which the Community has exclusive competence? If this is the case, then subsidiarity does not apply.

If the Community does not have exclusive competence in the area in question, the principles of subsidiarity and proportionality apply. The subsidiarity principle has two aspects which must both be analysed when you are examining whether Community action, legislative or non-legislative, is justified.

  1. Why can the objectives of the proposed action not be achieved sufficiently by Member States (necessity test)?
  2. As a result of this, can objectives be better achieved by action by the Community (test of EU Value Added)?

See also the European Commision's Communication on Compliance with the Charter of Fundamental Rights in Commission legislative proposals (COM(2005) 172).

You should answer the following questions when examining whether the two aspects are met in your case. You should not answer them on a yes/no basis, but rather use them to identify the arguments relating to subsidiarity which are relevant in the context of your initiative so that you can elaborate them in your IA report. These points should be substantiated with qualitative, and where possible, quantitative indicators

  1. Does the issue being addressed have transnational aspects which cannot be dealt with satisfactorily by action by Member States? (e.g. reduction of CO2 emissions in the atmosphere)
  2. Would actions by Member States alone, or the lack of Community action, conflict with the requirements of the Treaty? (e.g. discriminatory treatment of a stakeholder group)
  3. Would actions by Member States alone, or the lack of Community action, significantly damage the interests of Member States? (e.g. action restricting the free circulation of goods)
  4. Would action at Community level produce clear benefits compared with action at the level of Member States by reason of its scale?
  5. Would action at Community level produce clear benefits compared with action at the level of Member States by reason of its effectiveness?

The answers to these questions may not be the same for each policy option that you examine. You should then answer the questions under each policy option. You should also bear in mind that in some cases the appropriate level for action may be international, rather than European or national.
An additional point should be borne in mind: any assessment of subsidiarity will evolve over time. This has two implications.

  • First, it means that Community action may be scaled back or discontinued if it is no longer justified because circumstances have changed. It is important to bear this in mind when reviewing existing Community activities, for example in the context of the Commission's better regulation and simplification agenda. For this type of initiative, the IA report should demonstrate that EU action is still in conformity with the subsidiarity principle; you should not rely exclusively on a subsidiarity analysis that was made in the past.
  • Secondly, it means that Community action, in line with the provisions of the Treaty, may be expanded where circumstances so require. This may include areas where there has been no, or only limited, Community action before. Given the potential political sensitivity of such new activities, the clearest possible justification on the basis of the above questions is essential. Reference to similar activities already carried out at Community level may be useful.

The Treaty also requires that Community action meets the conditions set by the principle of proportionality. This should be examined as part of the assessment and comparison of policy options. The Executive Summary of the IA should contain a section presenting clearly your reasoning on subsidiarity and proportionality.

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