Explaining the EU deal: the 'red card'

The Prime Minister’s renegotiation deal on the UK’s European Union membership is a package of changes to EU rules. It was agreed by European leaders on 19 February 2016. In this series of articles, some of the country’s leading experts in EU law explain the deal and what it changes.

The “new settlement” deal on Britain’s place in the European Union includes a response to two linked proposals made by David Cameron last November.

The Prime Minister called for “a new arrangement where groups of national parliaments, acting together, can stop unwanted legislative proposals”. This was the so-called “red card” proposal.

Mr Cameron also said that he wanted the “EU’s commitments to subsidiarity to be fully implemented”.

The proposals are linked because the red card is aimed at blocking new European rules if they don’t comply with subsidiarity.

In other words, the red card comes into play when national parliaments say that it’s their job to make a particular set of rules. It’s not a blanket veto.

Parliaments’ powers at present

National parliaments already have some powers aimed at making sure that European lawmakers comply with subsidiarity. Commentators have likened these powers to the cards shown by football referees.

10 of the EU’s 28 national parliaments can ask the European Commission, or administration, to reconsider a proposed law if they think there’s a subsidiarity problem. This is the so-called “yellow card.”

The Commission has to reconsider after getting a yellow card, but can go ahead anyway. Critics say the yellow card will never make a difference because in practice this is what the Commission will always do.

Then there’s the “orange card”, which can be triggered by 15 national parliaments.

But unless the Commission agrees to drop a proposal, those national parliaments must also get the support of either 16 governments in the EU Council, or a majority in the elected European Parliament, for the orange card to work.

The orange card has never been used. That’s probably because it wouldn’t block anything that wouldn’t get blocked anyway under the ordinary voting rules. Under those rules, 13 governments, or a majority in the European Parliament, are enough to block a draft law.

What does the EU deal change?

Enter David Cameron’s “red card”. What impact would this have on the current position?

You might call it a “pink” card rather than a red card, since it doesn’t automatically block a draft European law.

The trigger for the red card against a proposed European law would be objections, for subsidiarity reasons, from “more than 55%” of national parliaments. That means the parliaments of 16 countries.

But the red card wouldn’t automatically block the proposal. Government representatives on the EU’s Council would discuss the objections of the national parliaments, and then either shelve the draft or amend it to take on board the objections raised.

The Council could still go ahead if it accommodates those concerns.

And it seems that the Council would itself be the sole judge of whether it has done that.

Critics could argue that the red card is unlikely in practice to produce a different outcome from the normal voting rules.

Against that, it might be said that this new arrangement would give national parliamentary bodies like the House of Commons an unprecedented right of direct intervention in the European lawmaking process.

While governments currently have a say, national parliaments may have little control over what their governments do in negotiations on new European laws.

Beefing up ‘subsidiarity’

Critics say that the idea of subsidiarity hasn’t led to less European regulation, because in practice the Commission interprets the criteria as applying to all proposals for Europe-wide rules.

They argue that the reason subsidiarity was introduced was to confine European lawmaking to “transnational” problems beyond the reach of individual EU countries—such as regulation of the single market or combating global warming.

Mr. Cameron’s proposal seems to reflect this approach, calling for “Europe where necessary, national where possible”.

The EU deal addresses these concerns. It spells out that the aim of subsidiarity is to ensure that decisions are taken “as closely as possible to the citizen”.

It goes on:

“The choice of the right level of action therefore depends, inter alia, on whether the issue under consideration has transnational aspects which cannot be satisfactorily regulated by action by Member States and on whether action at Union level would produce clear benefits by reason of its scale or effects compared with actions at the level of Member States” (emphasis added).

This emphasis on “transnational aspects”—or problems judged too big for any one country to solve—is a positive response to Mr Cameron’s proposal.

The text doesn’t make the existence of such “transnational aspects” an absolute requirement for action at European level, though. The words “inter alia” (“among other things”) suggest that it’s just one thing to consider when deciding whether or not to make a European law.

Update 22 February

We revised the article to take into account the final version of the EU deal published on 19 February, rather than the draft of 2 February as in the original.