ABSTRACT
Protocol 2 on the Application of the Principles of Subsidiarity and Proportionality attached to the Treaties establishes not only the conditions for the application of these principles but also a system for monitoring their application. Under the Protocol, national parliaments have been granted extensive powers to police the application of the principle of subsidiarity through the “yellow and orange cards” procedure. 5. Supportive competences. These 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 complements measures taken at national level. Article 6 TFEU provides a list of areas in which the Member States have exclusive competence but the Union can provide support or co-ordination. It is to be noted that special rules are applicable to three areas, i.e. economic and employment policies and the CFSP. 6. The “flexibility clause” contained in Article 352 TFEU. The clause can be used to achieve the objectives of the Treaties as listed in Article 3 TEU but not to objectives of the CFSP. Its role has been marginalised by the facts that for the adoption of a measure under Article 352 TFEU 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 exercise of Union competences by a limited number of Member States: the enhanced cooperation procedure. The ToL has further 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 new restriction is imposed as to initial authorisation in that the EP has to consent to this. In the past, the EP has not been very enthusiastic about the enhanced procedure. 8. The nature of the EU. The issue here is to determine whether the EU is an international
nature.
