Apologists for the Protocol have sought to argue that the danger of expanded Community action is avoided or minimized by virtue of the criteria which should be met before Community action can be taken. However, closer analysis offers little ground for optimism on this front. What are the criteria? First, for Community action to be taken, an issue should be "transnational" in character. Of course, there is for this purpose no definition as to what constitutes transnational. For example, many would argue that the regulation of working hours is not a matter of transnational concern but, rather, an issue solely for elected politicians in their national legislature. Others might contend that it is a proper preoccupation of the European Union, especially since the establishment of the Single Market. As we have seen, when the issue was put to the test, with the European Court of Justice as umpire, the centralists won.
Secondly, in order for Community action to be taken, it should be necessary for the requirements of the Treaty to be fulfilled. This is scarcely reassuring because all that it appears to require is that those who want maximum Community action should draft clauses in the treaties that are sufficiently broad to require or allow such action. It is a matter of historical record that the Community has devised objectives both noble and wide which are enshrined in Community law and in Treaty obligations. Precisely how those objectives are to be fulfilled is often left open because Member States know that there are differences between them over how the objectives would be interpreted.
The British have often been reassured, not least by the government of the day, that there is no need to worry because the high falutin' declarations in the Treaty are simply in accordance with the Continental approach to law making, rather than the British insistence on specificity. Yet, all too often, at a later stage, as we discovered to our cost over working hours, we are told that we signed the Treaty and the words clearly mean what most of the Member States say that they mean. Therefore, when the Community legislates, we have no success if we object that it should not be doing so.
Thirdly, the Protocol stipulates that there should be benefits in scale or effect as a result of Community action. The British Government, when it lodged an appeal in 1994, contended that there were disbenefits in scale and effect of the Working Time Directive that should have prevented its adoption - but they did not.
The conclusion is irresistible. The talk of tests that have to be met before Community action can be taken offers cold comfort. There is none that is absolute, dependable or even encouraging to those who believe that Britain has often been misled and betrayed by the process of EU treaty making.
Fourthly, under the Protocol, the Commission is required to "consult widely before proposing legislation and, wherever appropriate, publish consultation documents". This is a procedural nicety but no more than that. It constitutes no check on the legislative ambitions of the Commission whatsoever. All the evidence is that the Commission will continue to do in the future what it has done in the past - namely, to identify new policies and proceed to implement them.
Fifthly, there is a difference, as significant as it is little noticed, between subsidiarity and proportionality. In paragraph 5 of the Protocol, subsidiarity is linked to the "objectives of the proposed action".13 If, therefore, a nation state were able to show that it could, legislating and acting domestically, sufficiently achieve those objectives, it could throw out, or free its own citizens from, a European Directive on the subject. Any such hope is removed by Paragraph 2 of the Amsterdam Protocol, if a proposed European action could be shown to be based on the existing acquis communautaire. Moreover, any objection to a Directive would also fail if it could be shown that it was consistent with, or based upon, the principles developed by the European Court of Justice as regards the relationship between Community and national law. Most seriously, proportionality is not defined by reference to the objectives of the proposed action but, instead, it is the principle "according to which any action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty."14 The trouble with this is that the objectives of the Treaty are invariably judged to be of such grand intention and so wide in scope as to justify any action considered necessary to fulfil them. The author is not aware of any instance in which the Commission has considered or proposed a Directive only to learn that the rule of proportionality would prevent its implementation.
Between 1st May 1999, when the Amsterdam Treaty came into force, and 31st January 2003, when it was overtaken by the Nice Treaty, a further 1,269 Directives, Regulations and Decisions were enacted.
When challenged on the floor of the House of Commons in May 2003 as to whether he could identify a Directive or Regulation that has been repealed under the terms of the Amsterdam Protocol, the answer of the Foreign Secretary was in stark contrast to the breast beating triumphalism of the Prime Minister on the same issue in June 1997. Jack Straw replied "No, and the practice has been unsatisfactory." 15 Realising that there was no mileage in seeking to defend the indefensible, he immediately sought to shift attention instead to the possibility of securing an improvement in subsidiarity in the negotiations over the draft European Constitution. As we shall see, praying in aid that forthcoming document was probably as unwise as it was portentous.
The European Constitution
What is striking about the Protocol on subsidiarity in the Draft European Constitution is not its difference from the text of the existing Amsterdam Protocol but the similarity to it. There is no acknowledgement of European over-regulation. There is no acknowledgement of the need for decentralisation. There is no acknowledgement that the EU has done too much too badly and should do rather less rather better.
The new draft Protocol specifies that the case for action at Union level "must be substantiated by qualitative and, wherever possible, quantitative indicators."16 The Amsterdam Protocol said much the same.
The new draft Protocol requires the Commission to take account of the need for any burden of a proposal to be kept to the minimum necessary to achieve its objective. The Amsterdam Protocol said much the same.
The new draft Protocol stipulates that "before proposing legislative acts, the Commission shall consult widely."17 The Amsterdam Protocol said much the same.
The main difference in the new draft text is the suggestion that where an objection, supported by at least one third of the voting strength of the Member States, is made to a Commission proposal, "the Commission shall review its proposal".18 Ministers have trumpeted their backing for this idea. Yet the idea amounts to very little for the text of the draft Constitution goes on to state that "after such review, the Commission may decide to maintain, amend or withdraw its proposal", limply adding that "the Commission shall give reasons for its decision."19 It is no wonder that the European Scrutiny Committee - being properly sceptical in the best sense of that much maligned term - described the propo