Fifteen Years, One Lawsuit: Europe's Subsidiarity Brake Reached Court, and Four of Five Claims Do Not Count

Almost fifteen years ago the Lisbon Treaty handed the parliaments of the member states a weapon against a Union legislating too much from the centre. Article 8 of Protocol No 2 lets a national parliament ask the Court of Justice, through its government, to annul an EU law for breaching subsidiarity: the rule that the Union may act only where member states cannot sufficiently act themselves. On 4 June 2026 the Court published a press release in Assemblée nationale v Parliament and Council. Its opening paragraph carries a sentence the coverage did not lead with. This is the first time, since Lisbon introduced it, that a national parliament has used Article 8.

Twenty-seven member states, every chamber of every national parliament, fifteen years, one lawsuit. That would be a finding on its own. The second one is sharper. Advocate General Ćapeta proposes that the Court dismiss the action as, in her words, "partly inadmissible and partly unfounded", and the inadmissibility is the part worth reading. Of the National Assembly's five claims she considers exactly one to be about subsidiarity. The others, including the claim that the Union was never given competence to pass the regulation at all, concern conferral or proportionality instead, and so cannot be heard. Europe's remedy against over-centralization turns out to have a doorway through which most complaints about over-centralization will not fit.

The design explains the record. Protocol No 2 gives each national parliament two votes, one per chamber where there are two, and eight weeks from the transmission of a draft law to send a reasoned opinion saying why it breaches subsidiarity. If those opinions reach a third of the votes, the draft "must be reviewed", a quarter where the draft rests on the treaty article covering the area of freedom, security and justice. Then comes the sentence that decides everything. After the review, the Commission "may decide to maintain, amend or withdraw the draft", giving reasons. That is a yellow card. There is also an orange card, at a simple majority of votes, after which the Commission may still maintain the proposal but must justify it to the Council and the European Parliament; only if 55 per cent of Council members or a majority of votes cast in the Parliament find it incompatible does the proposal, in the Protocol's words, "not be given further consideration". The check on the centre, at its strongest setting, is operated by the centre.

The yellow card has been reached three times since 2009. The orange card has never been reached at all. In 2012 twelve chambers cast nineteen votes against a proposed regulation on collective action, one vote over a threshold of eighteen, and the Commission withdrew it. The study the European Parliament itself commissioned on fifteen years of the system concludes the card does not appear to have driven that decision, noting the proposal rested on the flexibility clause and was so slight that some doubted the Commission ever meant to pass it. In 2013 fourteen chambers across eleven member states objected to the European Public Prosecutor's Office and the Commission maintained the proposal. In 2016 the revision of the posted workers directive drew a third card and the Commission maintained that one too, observing that posting workers is transnational by definition. Three cards, and not one proposal the Commission agreed to drop because it breached subsidiarity.

The judicial route was quieter and no better. The same study records that the Court of Justice has never found any subsidiarity breach and has declined to conduct an in-depth review, and quotes the Committee of the Regions conceding in its own explainer that the principle "does not really lend itself to judicial supervision". A remedy nobody wins is a remedy nobody files.

Which brings us to why nothing happened for fifteen years, and why something finally did. The right under Protocol No 2 belongs to a chamber, and a chamber acts by its majority. In a parliamentary system that majority is the government's majority, and the government has usually just agreed to the measure in Council. The body entitled to complain that power has moved to the centre is controlled by the people who moved it. Nothing about the eight-week deadline or the one-third threshold explains that; it is a defect of custody, not of calibration. France is the exception, and not because of anything Europe designed. Article 88-6 of the French Constitution makes the reference to the Court "obligatory upon the request of sixty Members of the National Assembly", out of five hundred and seventy-seven. The one time Europe's subsidiarity remedy has been fired, it was fired by a minority the governing majority could not stop, under a domestic rule the Treaty neither requires nor anticipated.

There are three good answers to this and they deserve stating properly. The first is the European Parliament's own: in the resolution numbered 2016/2149(INI) it suggested that limited use of the yellow card could indicate that subsidiarity is, in its phrase, "on balance, respected within the EU". Silence may be consent rather than capture. The second comes from the study the Parliament commissioned, which concludes that lowering the thresholds or stretching eight weeks to twelve "is unlikely to have a significant impact", so the weak-mechanism story may simply be the wrong diagnosis. The third is about this case in particular. The action was brought by a minority whose objection to the regulation is, on the pleadings, an objection to being obliged to receive relocated asylum seekers, and the Advocate General's narrowing is defensible law: if every grievance about sovereignty counted as a subsidiarity claim, Article 8 would become a general veto over EU legislation and the principle would stop meaning anything in particular. Together that is a serious case that the system works and the complaint is opportunistic.

And yet the Advocate General's own remedy concedes the argument. She asks the Court to require the institutions to explain properly why action at Union level is necessary, and says that explanation "should not be formulaic, but based on the particularities of each legislative action". Nobody asks for that unless the practice is formulaic. She writes that "harmonisation should not be the goal of any body of legislation", which is a remarkable sentence to have to write sixteen years after the Treaty made subsidiarity suable by a parliament, about a principle whose entire content is that harmonisation needs a reason. On this series' reading the test went unapplied for fifteen years because nobody holding the right to apply it had an interest in doing so, and the institutions wrote their justifications to match the scrutiny they expected.

That is the general lesson and it is not a European one. The fifth of the Decentralization Papers read Ostrom as holding that authority at the edge survives only where those who hold it are both able and motivated to defend it. A right to object is not a check. A check needs a holder who wants to use it and who loses something by staying quiet, and Protocol No 2 vested its right in the body least likely to qualify on either count. Judgment is still to come and the Court is free to disagree with its Advocate General. Whichever way the single surviving claim goes, the number that describes European subsidiarity is the other one. Five claims about power moving to the centre, and four of them, correctly on the law as it stands, are about something else.