Subsidiarity in the Field of Justice and Home Affairs: The Yellow Card for the European Public Prosecutor's Office Proposal and the Lessons to be Learned Concerning the Subsidiarity Early Warning Mechanism

Article 5 of the TFEU requires that in areas which do not fall within its exclusive competence, 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. Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality goes further and sets up a mechanism whereby the Commission can be forced to review proposals where national parliaments collectively flourish a so-called ‘yellow card’.

To date two yellow cards have been flourished by national parliaments – one in relation to the so-called Monti II initiative concerning collective action, freedom of establishment and free movement of services, the other, more recently in relation to the Commission Proposal for a Council Regulation for a European Public Prosecutor's Office. The Commission reaction regarding the first proposal was to withdraw it. Its completely contrasting response regarding the EPPO proposal, however, was to maintain the proposal. This paper seeks to focus on the EPPO episode and to draw from it whatever additional lessons can be learned about the operation of the Early Warning Mechanism over and above those learned in relation to the Monti II proposal. In a comparative perspective the aim is to understand the impact of the new parliamentary instrument in two policy areas: JHA and Freedom of movement of workers and social policy matters.