Guidance for policy officials: explanatory memoranda

Annex A: The Subsidiarity & Proportionality Principles

Background - the legislative competence of the EU

1. The EU shall act only within the limits of the legislative competences conferred upon it by Member States in the Treaty of the European Union ( TEU) and Treaty of the Functioning of the European Union ( TFEU). ^[4]

2. Only the EU can act in areas where it has exclusive competence, such as the customs union, competition and common commercial policy. In areas of shared competence, such as energy, the Single Market and environment, either the EU or the Member States may act, but the Member States may be prevented from acting once the EU has done so. In areas of supporting competence, such as culture, tourism and education, both the EU and the Member States may act, but action by the EU does not prevent the Member States from taking action of their own.

Which areas fall within each type of competence?

3. If you are unsure which area of competence your policy falls under, please contact the European Relations Division.

The Subsidiarity Principle

4. The use of EU competences is governed by the principles of subsidiarity and proportionality.

5. Under the principle of subsidiarity, in areas which do not fall within the exclusive competence of the EU, the EU shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. ^[5]

6. This principle aims to ensure that decisions are taken as closely as possible to citizens of the EU, in areas of shared and supporting competence.

7. They key question for the Scottish Parliament is, therefore, whether the EU is legislating in an area which is in the Scottish Parliament's legislative competence and the objectives of the relevant proposal can be better achieved by the Scottish Parliament acting alone.

The Proportionality Principle

8. Under the proportionality principle, the ' content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.'

9. The principle of proportionality is very closely linked to the subsidiarity principle. However, it is important to note that proposals meeting the requirements of subsidiarity may not necessarily be proportionate.

10. The main difference between the two principles is that the subsidiarity test examines who should be taking the action and the proportionality test looks at what the action should be.

11. National parliaments can only object to EU proposals on the grounds that they breach the principle of subsidiarity and not on the grounds that they go beyond what is proportionate to achieve the given objective.

12. Nonetheless, the process offers another invaluable opportunity for the Scottish Parliament to represent Scottish interests and influence the UK negotiating position at an early stage.