The EPPO Draft Regulation Passes the First Subsidiarity Test: An Analysis and Interpretation of the European Commission's Hasty Approach to National Parliaments’ Subsidiarity Arguments

Abstract

AbstractThis contribution discusses National Parliaments’ subsidiarity objections raised in the context of the Early Warning Mechanism (EWM) to the European Public Prosecutor Office proposal, and the European Commission response to them. It argues that National Parliaments raised important points, on how does subsidiarity apply respectively, when the wording of the Treaty grants the Council theoptionto act, as opposed to an obligation to act; on how to assess the inefficiency of the national level; on how does subsidiarity apply in a geographically fragmented context, and on the legitimacy for the EU to regulate non cross-border behaviors. It criticizes the Commission's hasty dismissal of all National Parliaments’ objections, and its decision to leave the proposal's text untouched. It further argues that the Commission's interpreted the EWM as an arena where to test the political feasibility of the proposal, as it had occurred in the past, rather than as a proper subsidiarity policing mechanism. It finally provides some observation on how this interpretation of the EWM has negative implications to terms of subsidiarity policing, of understanding the substance of the principle, and of input legitimacy.