Yellow card procedure
The yellow card procedure is a procedure under which the national parliaments of EU Member States can object to a draft legislative act on grounds of the principle of subsidiarity. Under Article 5(3) and Article 12(b) of the Treaty on Economic Union, national parliaments monitor compliance with the principle of subsidiarity in accordance with the procedure set out in Protocol (No 2) on the application of the principles of subsidiarity and proportionality.
Under an ‘early warning’ procedure, any national parliament or any chamber of a national parliament has eight weeks from the date of forwarding of a draft legislative act to send to the Presidents of the European Parliament, the Council and the European Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. If reasoned opinions represent at least one-third (one vote per chamber for a bicameral parliamentary system and two votes for a unicameral system) of the votes allocated to the national parliaments, the draft must be reviewed, or it is given a yellow card.
The institution that produced the draft legislative act may decide to maintain, amend or withdraw it, giving reasons for that decision. If the European Commission decides to maintain its proposal, the matter is referred to the legislator (the European Parliament and the Council), which takes a decision at first reading. If the legislator considers that the legislative proposal is not compatible with the principle of subsidiarity, it may reject it subject to a majority of 55% of the members of the Council, or a majority of the votes cast in the European Parliament (‘orange card’).
To date, three yellow cards have been issued, two of which concern matters relating to employment and industrial relations.
The first yellow card was issued in May 2012 with regard to a proposal from the European Commission for a regulation concerning the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services (‘Monti II Regulation’). Twelve out of 40 national parliaments or chambers of parliaments (19 out of 54 votes allocated) considered that the content of the proposal was not consistent with the principle of subsidiarity. The Commission ultimately withdrew its proposal, even though it took the view that the subsidiarity principle had not been infringed.
In October 2013, another yellow card was issued by 14 chambers of national parliaments in 11 Member States (18 votes) following the submission of the proposal for a regulation on the establishment of the European Public Prosecutor’s Office. In this case, the European Commission decided to maintain the proposal stating that, in line with the subsidiarity principle, it would probably be implemented through enhanced cooperation.
In May 2016, a third yellow card was issued by 14 chambers in 11 Member States against the proposal for a revision of the directive on the posting of workers. The European Commission again decided to maintain its proposal, given that it did not infringe upon the principle of subsidiarity, the posting of workers being, by definition, a transnational issue.