“Yellow card, but no foul”: The role of the national parliaments under the subsidiarity protocol and the Commission proposal for an EU regulation on the right to strike - Common Market Law Review View “Yellow card, but no foul”: The role of the national parliaments under the subsidiarity protocol and the Commission proposal for an EU regulation on the right to strike by - Common Market Law Review “Yellow card, but no foul”: The role of the national parliaments under the subsidiarity protocol and the Commission proposal for an EU regulation on the right to strike 50 1

The article analyses the role of the national Parliaments under the Subsidiarity Protocol, taking the recent Commission proposal for a regulation on the exercise of the right to strike and the reaction of national Parliaments as a case study. In this case, for the first time since the entry into force of the Lisbon Treaty, national Parliaments activated the "yellow card" procedure set up by Protocol No. 2 to ensure compliance by the EU institutions with the principle of subsidiarity. The article claims, however, that the Commission proposal was sanctioned with a "yellow card" without having committed any foul. The article analyses the role of national Parliaments under the Subsidiarity Protocol and - on the basis of textual, structural and functional reasons - advances the argument that the review of national Parliaments should focus exclusively on violations of the principle of subsidiarity and should not extend to the evaluation of the proportionality, legal basis or political merits of a draft EU legislative proposal. The article then outlines the context and the content of the Commission proposal and examines the reasoned opinions of the national Parliaments against the draft regulation. By testing the previously developed framework, the article explains that in the present case national Parliaments have gone beyond their role, failing to identify any subsidiarity violation in the draft regulation. The article concludes by maintaining that the Commission proposal, in fact, was compatible with the principle of subsidiarity and suggests that the draft regulation may have been the most appropriate tool to strike a new balance between free movement and social rights in the EU. Because of the decision of the Commission to withdraw its proposal, nevertheless, the article warns that the Commission may have inadvertently encouraged a misuse of the subsidiarity review by the national Parliaments with potentially negative effects on the delicate balance of powers between the States and the EU.

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