The Early Warning System for the Principle of Subsidiarity: The National Parliament as a Conseil d'Etat for Europe

In this article, the author examines the Lisbon Treaty's early-warning system (EWS) for the principle of subsidiarity and the way national parliaments use it in practice to respond to EU legislative proposals. The author argues that the European role of national parliaments under the EWS may be compared to the domestic role of a council of state, an advisory body which exists in several Member States. Like EWS opinions of national parliaments, the advice of a council of state on bills is not binding but, in both cases, the procedure is an institutionalised part of the legislative process; like the EWS, advice by a council of state typically includes legal considerations on whether the adoption of a bill would be lawful, e.g. in compliance with the constitution, rather than whether it would be politically desirable. The empirical analysis of recent EWS practice reveals that a host of national parliaments are prepared to adhere to such a relatively narrow role, which makes a council of state a realistic and recognisable role model for those national parliaments that still struggle to define their proper role in the European Union.