The Early Warning System (EWS) is the first instrument that guarantees regional parliaments at least indirect participation rights in the EU legislative process. However, to what extent and with what outcome regional parliaments make use of the opportunities provided by this instrument is highly under-researched. To this end, REGIOPARL collected data on the EWS activity of all 71 regions participating in the EWS in order to add to the understanding of how the EWS is used by regional parliaments. In this blog post, first insights from the analysis are used to put existing hypotheses on the regional EWS participation into perspective. Furthermore, an outlook on future research demands is given.
The role of regional parliaments in EU affairs has evolved from a spectator to a partially involved decision-maker since the Lisbon Treaty – at least theoretically. With the treaty of 2009, also known as the “Treaty of Parliaments”, the Early Warning System (EWS) was introduced to ensure compliance with the subsidiarity principle and to grant national parliaments further rights in EU law-making. The subsidiarity principle applies in areas where the legislative competence is shared between the EU, member states, and sometimes regions. It specifies that the EU only makes use of its legislative powers if “the objectives of an 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” (Treaty on European Union, Article 5.3). For example, a measure setting minimum standards in an area to protect the climate will only be successful when applied by all member states, as climate change is a global phenomenon. Through a special voting system, national parliaments can ask for adaptions to legislative proposals if they see the subsidiarity principle violated. If one-third of national parliaments opposes a legislative proposal, the draft must be reviewed (“yellow card”).
Regions in the EWS
With the introduction of the EWS, regional parliaments were given indirect participation rights in the European legislative process for the first time. Article 6 in Protocol Number 2 of the Lisbon Treaty states that regional parliaments may be consulted “where appropriate” by the national chambers. This means that regional parliaments have the opportunity to scrutinize every legislative proposal made by the European Commission in the area of shared competence, regarding its compliance with the principle of subsidiarity. If a violation is detected during the scrutiny process, the regional parliament in question can issue a so-called reasoned or negative opinion. As most regions don´t hold voting rights in the EWS voting system on their own, the negative opinion is sent to the national parliament in order to share the regional perspective and influence the national level towards expressing subsidiarity concerns to the EU institutions.
According to the before-mentioned protocol, EWS participation is limited to regional parliaments with legislative competences (Art. 6 Protocol no 2 on the application of the principles of subsidiarity and proportionality). Therefore, participation in the EWS remains a privilege of 71 regions in either highly federalized (Austria, Germany, Belgium), regionalized (Spain, Italy), or asymmetrically centralized EU member states (Portugal, Finland). The application of the EWS varies considerably between countries and regions, depending on different institutional and legal backgrounds that determine whether regional parliaments have been strengthened in their involvement in EU affairs. While in Belgium, the direct participation of regional parliaments in the EWS voting system ensures an effective EWS participation, the regional parliaments in Spain and Italy have very limited time for issuing a negative opinion and hold little influence on whether the submission of the opinion results in a responsive action at national level (Schmitt 2013).
New data on the activity of regional parliaments
While EWS participation at the national level and its impact on EU legislative processes have already been explored by various scholars, the regional perspective remains under-researched especially from a comparative perspective. To contribute to closing this research gap, REGIOPARL collected data on the activities of all regional parliaments with legislative powers participating in the EWS since its introduction in 2010, covering a period of almost 11 years. In total, our data set includes information from 71 regional parliaments and seven different member states.
|Number of regions||16||9||21||17||1||2||5||71|
|Number of NOs||132||73||13||7||1||1||2||229|
|Average number of NOs per region||8,25||8,1||0,6||0,4||1||0,5||0,4||2,75|
|Number of active regions||11||7||6||5||1||1||2||33|
|Number of regions with multiple NO (>1)||9||5||4||2||0||0||0||20|
Table 1: Overview of regional parliaments’ EWS activity (2010-2021), own data collection (REGIOPARL)
In the period from 2010 to 2021, a total of 229 negative opinions (NO) from 33 different regions in all seven member states were counted (see Table 1), with only one negative opinion issued in the Finish and Portuguese regions. Germany accounted for more than half of the observations, with a total of 132 negative opinions. Austrian regional parliaments were similarly active, with an average of 8.1 NOs per regional parliament compared to an average of 8.25 in Germany. In total, 14% of all EU legislative proposals that fall under the EWS were found to violate the principle of subsidiarity according to at least one regional parliament.
The actual number of NO issued by regional parliaments differs considerably from region to region, with Thuringia being most active over the whole period. Hence, the negative opinions passed so far are the result of the activity of a handful of regional parliaments. 20 regions have issued more than one NO between 2010 and 2021, whereas only in 12 regions more than three subsidiarity violations were identified. 58% of NOs were passed by the four most active regions—two of them in Germany (Thuringia, Bavaria), and two in Austria (Upper Austria, Voralberg). Apart from Germany and Austria, regions that have repeatedly issued subsidiarity complaints can be counted on the fingers of one hand. Also absent is a broad mobilization by parliaments from various regions (within and across countries) on the same legislative proposal. Rather, regional parliaments each identify different legislative proposals as violating the principle of subsidiarity.
“Reality Check” and research prospects
This new data allows for putting existing research hypotheses on regional activity in subsidiarity scrutiny into perspective. As Högernauer et al. suggest, a lack of time, expert knowledge, administrative staff, and access to relevant information are factors often applicable to regional parliaments which complicate the scrutiny process, as those are relevant resources to conduct a subsidiarity check (Högenauer et al. 2016). Looking at the REGIOPARL data, the EWS can, indeed, be perceived as a weak instrument for regional participation, generally supporting the hypothesis. However, even with limited resources, a high level of activity is possible, as the data from Thuringia with a total of 56 negative opinions show.
Another existing research hypothesis states that certain institutional settings provide regional parliaments with stronger incentives to scrutinize EU legislative proposals. The different institutional backgrounds in Belgium and Spain vis à vis equally low levels of EWS activity in regions from both member states show that this approach only offers a fragmented picture. Thus, regional EWS participation — or in many cases: non-participation — calls for more complex explanatory approaches. Since individual regions stand out with high numbers of subsidiarity checks, more nuanced explanations focusing on regional factors and, for example, considering individual parliamentary behavior rather than purely institutional angles are presumably more promising.
Apart from differences between regions, the overall temporal trends also require systematic analysis. To understand the bigger picture, a range of factors must be considered. Future research should aim for adding a hypothesis on temporal trends but should also refine and complement existing hypotheses on cross-country and cross-regional differences, also explicitly considering potential explanations for cautious non-participation by regional parliaments. One promising yet untested hypothesis in this regard takes account of political attitudes towards the EU at the level of regional party groups: If the EWS is perceived by members of parliament as an instrument to oppose EU integration, regions governed by pro-European party coalitions may deliberately chose to refrain from using this instrument, whereas Euroskeptic government participation could lead to an increase in negative opinions. Robust findings on those and other arguments have yet to be explored. They can contribute to enhancing our understanding of EWS use at the regional level and, more generally, of how regional parliaments play their part in the multilevel EU architecture.
 active is understood here as participation in the EWS in the form of issued negative opinions
Consolidated version of the Treaty on the Functioning of the European Union – PROTOCOLS – Protocol (No 2) on the application of the principles of subsidiarity and proportionality. Official Journal of the European Union. Document C115. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12008E%2FPRO%2F02, last checked 20.06.2022
Consolidated Version of the Treaty on European Union (2012). Official Journal of the European Union. Document C326. https://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC_1&format=PDF, last checked 01.07.2022
Högenauer, A. L., Neuhold, C., & Christiansen, T. (2016). Parliamentary administrations in the European Union. Springer.
Schmitt, P. (2013). The Subsidiarity Early Warning System of the Lisbon Treaty: The Role of Regional Parliaments with Legislative Powers and Other Subnational Authorities. European Comission.