ABSTRACT
Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality attached to the Treaties established not only the conditions for the application of these principles but also a system for monitoring the application of the principle of subsidiarity. Under the Protocol, national parliaments were granted extensive powers to monitor the application of the principle of subsidiarity through the “yellow and orange cards” procedure. 5. Supporting, co-ordinating and supplementing competences refer to areas in which the Member States have not conferred competences on the EU but have decided to act through it. In these areas the EU supports, co-ordinates, encourages or supplements measures taken at national level. Article 6 TFEU provides a list of areas in which the Member States have exclusive competence but the EU can support, co-ordinate or supplement the action of the Member States. It is important to note that in these areas the EU can adopt binding measures but in no circumstances is it allowed to harmonise, totally or partially, national laws of the Member States. Special rules are applicable to four areas, i.e. economic, employment and social policies and the CFSP. 6. Article 352 TFEU can be used to achieve the objectives of the Treaties as listed in Article 3 TEU but not the objectives of the CFSP. It is to be used when the EU has neither express nor implied powers (i.e. when there is a gap in the Treaties), but needs to adopt measures in order to achieve an objective specifi ed by the Treaties. The role of Article 352 TFEU has been marginalised by the facts that for the adoption of a measure under that article the Council is required to obtain the EP’s consent (previously under Article 308 EC the Council was required to consult the EP) and that its use is subject to the “yellow and orange cards” procedure available to national parliaments. 7. The ToL reformed the enhanced co-operation procedure to make it more attractive to the Member States, mainly by providing that when an enhanced procedure is in progress, the Council acting unanimously may adopt a decision, stipulating that it will act by QMV where the Treaty stipulates that the Council shall act unanimously. The only constraint imposed on the Council is that it must consult the EP. However, a restriction is imposed as to initial authorisation in that the EP has to consent to this.
