The principle of subsidiarity
Marta Staniszewska
November, 14th 2007
The Prime Minister (Mr John Major): “…There is a tendency for the
Community to want to legislate over a wide area. That tendency needs to be
curbed. That is the essence of what hasbecome known as subsidiarity. I am aware
that different people view it in different ways, but what subsidiarity must mean is
that, if a problem can be dealt with at national level, it should be.”
Despite the fact, that the principle of subsidiarity may be seen from two different points of
view (see below), here I will focus upon its connection with the European Union and its legal
provisions.
1.
Origin and context of subsidiarity1
In studying the origins and context of subsidiarity it is possible to distinguish two extrinsically
related steps. First, subsidiarity has a religious origin, or even a specifically Catholic origin.
Second, it has another origin within the ongoing discussions concerning the construction of
the European Community or the European Union.
Subsidiarity reflects originally a specifically Catholic preoccupation and a well determined
historical reflection as both the outcome and the answer to the political climax that preceded
World War II. In a narrow political and institutional sense it could be thought that the effort to
think out and to make subsidiarity possible responds to three well defined challenges: 2 the
defense of the church’s authority in a political situation ever more hostile, the reconciliation
of Catholicism with the goals of social progress and the state’s political policies, and the
analysis of the lay Catholics’ commitment in an ever more secular or laicized political order.
But the broader and real concern of the encyclicals was to save place for persons and their
group exercise of responsible freedom in the face of the countervailing emergent polarization
of various forms of totalitarian and liberal threats to social participation.
The concept of subsidiarity in these circles appears first in the encyclical Quadragesimo Anno
from Pope Pius XI, and is found in all subsequent related encyclicals up to the present date. 3
These original conditions have become much more elaborate as can be seen from subsequent
writings by both Catholics and non-Catholics, believers and atheists, religious and lay people.
1
http://www.crvp.org/book/Series05/V-5/chapter_iv.htm
Cf. A. Adonis and S. Jones, Subsidiarity and the Community’s Constitutional Future, Discussion Paper No. 2
(Center for European Studies; Oxford: Nuffield College, 1991), pp. 4 ff.
3
Nature and Future of Episcopal Conferences, H. Legrand, J. Manzanares and A. Garcia y Garcia, ed.
(Washington, D.C.: The Catholic University of America Press, Washington, D.C., 1988.
2
The Synod of 1985 was called to study the applicability of the principle of subsidiarity inside
the Catholic Church herself.4
Only in the 1980s did the concept of subsidiarity acquire a place of its own in the language of
the European Community.5 We can thus speak, but only methodologically, of a second origin
of the concept of subsidiarity. In the context of the formation of the European Community or
European Unity 6 the concept of subsidiarity is set in the center and clarified as such, alongside
the main concepts and problems from social and political philosophy. In this way, subsidiarity
has become increasingly associated with the elucidation of the problems concerning common
interests, democracy and federalization. Or, to put it the other way round, what is discussed in
terms of subsidiarity generally are problems of decentralization of power and decision
making, federalism and even the sub-sequent confederalism, and the concept of the common
good.
Inside the process of European construction, Jacques Delors has been one of the main sources
and promoters of discussion regarding subsidiarity. On the basis of Canadian, American and
German experiences, each with their own cha-racteristics, subsidiarity supposes the
distinction of two spheres: the private on the one hand, and the state on the other, and the
distribution of tasks among those different levels of political power. From this point of view,
according to Jacques Delors himself, subsidiarity encompasses two essential aspects: on one
level, the right and/or duty of everyone to exercise his or her responsibilities so as to be able
4
These are, among others: Non Abbiamo Bisogno, also from Pius XI, and Mater et Magistra (1961) and Pacem
in Terris (1963) by John XXIII. The Second Vatican Council also makes reference to subsidiarity, particularly in
the field of education. The subsequent writings of by Paul VI and John Paul II contain specific room for
subsidiarity. In any case, here these indications have only indicative value. Those with other interests or purposes
might wish to trace back the Vatican documents in order to determine whether there are linguistic or other
changes between one document and another, or between one period and another, for instance, between one Pope
and another.
5
There is an evident though unmentioned historical presupposition concerning the multiple connections between
earlier Catholic and, in a very broad sense, Christian history up to its recent generic extension to the construction
of the European Community or Union. Beyond the merely economic preoccupation of responding to the strong
pressure of Japanese economic, commercial and financial power, on the one hand, and their American
counterparts, on the other, there is as well a desire to become an independent world block. In this there has been
strong influence from Christian Democracy as well as from Catholicism itself in forming the European Community or Unity. This should not be taken as if the influence of liberal and Social-democratic forces were
necessarily minor. The point is rather to make a bridge between the "religious" and the "lay" origins of
subsidiarity. Both origins correspond to one and the same vector, and there is really much more of a continuity
between the two. The Liberal, Socialist and Social-democratic forces came to contribute to that process of formation after the first efforts and pillars had been established particularly by Christian Democracy.
6
There is a difference between the concepts of European Community and European Unity which consists in an
ascending path from the first to the second. For reasons of language economy the two concepts will be used here
without discrimination, especially as the immense majority of texts about subsidiarity refer to the construction of
the European Community. Only after the Maastricht Treaty and the Agreements from Schengen has the second
concept come to be more widely used over the first one. This reflects the strengthening of the European Unity.
But as this is a unity in progress other concepts can be added afterwards; hence the use of those concepts here is
less categorical and more denotative
to act in the best way; on another level, the obligation the public authorities to provide all with
the means to develop and reach their own capacities.7
In any case, the history of subsidiarity in the framework of European construction is neither
lineal nor uniform. On the contrary, it is an issue in whose discussion different interests
converge with equally multiple goals. The comprehension and application of subsidiarity is
really a story of multiplicities, rather than of simple unity. 8 In such a state of affairs the
clarification of subsidiarity is a task which lies ahead. In this task clearly there are two groups.
On the one hand, there are those who believe that it is necessary to define what subsidiarity is,
not only for its actualization but as the most expeditious way to clarify the range of its
possible applicability. On the other hand, there are the understandings of subsidiarity not so
much in juridical and constitutional, but in sociopolitical, terms, as for example in the
ecologists’ positive concern for subsidiarity. From this point of view, it is not so much an
already established and determined concept, but a leading principle or a guide to action. The
former is an objective or objectivist de-finition of the problem; the latter is a subjective or
subjectivist reading of the concept. The issue of subsidiarity lies in the ten-sion between both
positions, to which for the immediate fu-ture there is no foreseeable simple solution. This is
typical of the specific tension found in liberal Western democracies.
2.
Subsidiarity: the beginning
The principle of subsidiarity9 then has a quite determined place, date, author and situation of
origin. There is general agreement that its political and philosophical roots can be traced back
without doubt to the work of Proudhon and J. Stuart Mill;10 others would trace its antecedents
as far back as St. Thomas Aquinas and Aristotle.
7
Cf. J. Dolors, The Principle of Subsidiarity: Contribution to the Debates," in Subsidiarity: The Challenge of
Change. Proceedings of the Jacques Delors Colloquiums (Maastricht, The Netherlands: European Institute of
Public Administration, 1991), p. 18.
8
Cf. among others, Subsidiarity within the European Community, A. Duff (Ed.) (Federal Trust for Education and
Research, 1993), and A. Tyrie, "Subsidiarity -- What Should The Government Do", in Subsidiarity as History
and Policy, op. cit.; R. Sinnott, "Integration Theory, Subsidiarity and the Internationalization of Issues: The
Implications for Legitimacy", in Working Paper RSC, No. 94113, (Florence: Euro-pean University Institute,
Robert Schuman Center).
9
As used here, the expression "principle of subsidiarity" is really a generic designation used without as-signing
to it further ontological or logical consequences. However, a principle is generally a guide to meaning or action.
In this sense, it is perhaps implicit that the principle of subsidiarity contains a reference to a series of theoretical
and practical tasks.
10
By Proudhon, cf. Du principle federatif et la necessité de reconstituer le parti de la revolution (1863). Usually
there is agreement in stressing the importance Proud-hon gives to subsidiarity understood as a contractual
principle for establishing and guaranteeing the social and political coherence of social and political life. -- As for
J. Stuart Mill, cf. Consideration on Representative Government (1872).
When it comes to the European Union, talk of subsidiarity was introduced in the late 1980s
through the initiative of the European Parliament, Britain and Germany in response to fears of
centralized power by placing the burden of argument with integrationists. Britain feared
European federalism, and the German LaEnder sought to maintain their exclusive powers
enjoyed in the German Federal Republic.11
The explanation for the principle of subsidiarity ought to be sought in answering the
question: how should legislative power be divided between the Community and the Member
States? The answer, it is suggested, is that power needs to remain with the Member States
except where there is a good reason why it shall be given to the Community. In other words,
Member-State action should be the norm, Community action the exception- for which clear
justification is required in each instance.
The word subsidiarity is derived from the Latin word subsidiarius and has its origins in
Catholic social teaching. The concept or principle is found in several constitutions around the
world.12
In Community parlance, this principle is known as “ subsidiarity”, a word imported into
English from German, so that the concept could be discussed with reference to the
Community. Although the word is new in English, the idea is well-known: Americans claim
that it is the principle on which their constitution is based. In the Community context,
subsidiarity first began to attract attention about twenty years ago and it was eventually laid
down as a principle of Community law in the Maastricht Agreement ( known also as Treaty
on European Union).13
3.
Definition
The Oxford English Dictionary14 defines subsidiarity as the idea that a central authority
should have a subsidiary function, performing only those tasks which cannot be performed
effectively at a more immediate or local level.
Subsidiarity is the principle which states that matters ought to be handled by the smallest (or,
the lowest) competent authority. This means that the primary responsibility and decision-
11
Andreas Féllesdal, Survey Article: Subsidiarity, The Journal of Political Philosophy: Volume 6, Number 2,
1998, pp. 190±218
12
http://en.wikipedia.org/wiki/Subsidiarity
13
Trevor C Hartley, Constitutional Problems Of The European Union
14
The Oxford English Dictionary (OED), published by the Oxford University Press (OUP) in 2005
making competence are supposed to rest with the lowest possible level of authority of the
political hierarchy.
The concept is applicable in the fields of government, political science, cybernetics and
management. Subsidiarity is, ideally or in principle, one of the features of federalism.15
When it comes to European Union Law it’s a fundamental principle. Though its legal effects
may be slight, its symbolic significance is enormous: it is a declaration of the vision of
Europe shared by the authors of the Treaty and enshrined in that document.16
According to this principle, the European Union may only act (i.e. make laws) where Member
States agree that action of individual countries is insufficient.17 Moreover, subsidiarity
reduces the risk for members of being overruled in common decisions, by limiting the
common agenda. Thus, it means that the Member States remain responsible for areas which
they are capable of managing more effectively themselves, while the Community is given
those powers which the Member States cannot discharge satisfactorily. In the context of the
EU, principles of subsidiarity have been introduced precisely to quell fears of centralization.
The Union was established to enhance and complement domestic sovereignty in areas where
common action was necessary. The European level of governance ensured beneficial
cooperation, regulation of externalities and options for collective actions.18
According to N.W Barber,
19
subsidiarity is a principle about the functioning of democracy,
even if it is not a principle of democracy. It helps shape the structures within which
democracy can operate, but does not require or presuppose the agreement of individuals
within these structures. Most obviously, the European principle of subsidiarity is concerned
with the allocation of powers to pre-existing institutions: for instance, whether a decision
should be taken within the institutions of the European Union or should be allocated to the
Westminster Parliament. It will be suggested that the principle can also provide an argument
for the creation of new democratic institutions, both at the sub-state and at the supra-state
level.
15
http://en.wikipedia.org/wiki/Subsidiarity
N. W. Barber, The Limited Modesty of Subsidiarity, European Law Journal, Vol. 11, No. 3, May 2005,
pp.08–325
17
http://en.wikipedia.org/wiki/Subsidiarity
18
Follesdal, Andreas, Subsidiarity, Democracy and Human Rights in the Constitutional Treaty of Europe,
Journal of Social Philosophy, Volume 37, Number 1, Spring 2006 , pp. 61-80(20)
19
N. W. Barber, The Limited Modesty of Subsidiarity, European Law Journal, Vol. 11, No. 3, May 2005,
16
pp.08–325
Legal Basis 20
4.
1) The principle was enshrined in the 1992 Treaty of Maastricht and is contained within the
proposed new Treaty establishing a constitution for Europe. However, at the local level it was
already a key element of the European Charter of Local Self-Government, an instrument of
the Council of Europe promulgated in 1985 .
Subsidiarity was established in EU law by the Treaty of Maastricht, article 3b (signed on 7th
of February 1992 and entered into force on 1st of November 1993). The present formulation
is contained in Article 5 of the Treaty Establishing the European Community (consolidated
version following the Treaty of Nice, which entered into force on 1 February 2003):
The Community shall act within the limits of the powers conferred upon it by this Treaty
and of the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take
action, in accordance with the principle of subsidiarity, only if and in so far as the
objectives of the proposed action cannot be sufficiently achieved by the Member States and
can therefore, by reason of the scale or effects of the proposed action, be better achieved by
the Community.
Any action by the Community shall not go beyond what is necessary to achieve the
objectives of this Treaty.
Under this article, there are three preconditions for Community action in accordance with the
principle of subsidiarity: 21

the area concerned must not fall within the Community's exclusive competence;

the objectives of the proposed action cannot be sufficiently achieved by the Member
States;

the action can therefore, by reason of its scale or effects, be implemented more
successfully by the Community.
2) The principle of subsidiarity has not just applied since its incorporation in Article 5 ECT.
As long ago as 1951, Article 5 of the ECSC Treaty stipulated that the Community should
20
http://en.wikipedia.org/wiki/Subsidiarity#European_Union_law
21
http://www.europarl.europa.eu/facts/1_2_2_en.htm
exert direct influence on production only when circumstances so required. And although it
was not expressly so defined, a subsidiarity criterion was included in Article 130r EECT, on
the environment, by the Single European Act in 1987.
However, the Court of First Instance of the EC ruled in its judgment of 21 February 1995,
ECR II-289 at 331, that the subsidiarity principle was not a general principle of law, against
which the legality of Community action should be tested, before the EU Treaty entered into
force.
3) Without changing the wording of the subsidiarity criterion in Article 5, second paragraph,
ECT, the Treaty of Amsterdam (signed on 2nd of October 1997, and entered into force on 1st
of May 1999) incorporates the ‘Protocol on Application of the Principles of Subsidiarity
and Proportionality’ into the European Treaties (agreed in Edinburgh in 1992).
22
The first
issue dealt with by the Protocol on subsidiarity is that of the institutions which are bound by
the principle. The first provision of the Protocol on subsidiarity address the question when it
specifically establishes that ‘each institution shall ensure that the principle of subsidiarity is
complied with’. It follows that all Community institutions which have powers to dictate
legally binding acts, and not only the Community institutions sensu stricto23 are obliged to
observe the principle of subsidiarity when they act. The provision also makes clear that the
ECJ has competence to review acts on the basis of subsidiarity. The second issue addressed
by the Protocol is that of the relationship between subsidiarity and the pillars supporting the
Community’s constitutional edifice. The Protocol stays clear about it: the implementation of
the principle of subsidiarity does not call into question any of the elements that are
inseparable from the ‘Community’s constitutional charter’ (ECJ). This matter is resolved in
provision 2 of the Protocol, although provisions 3 and 8 are also relevant. Provision 2
establishes that both the Community’s acquis and the principle of institutional balance shall
be respected by Community institutions when they implement subsidiarity. The same
provision states that the implementation of subsidiarity shall not affect the principles
developed by the ECJ- this clearly refers to the principles of supremacy, direct effect,
Member States’ liability for not implementing Community law, and legal certainty. Finally,
provision 2 indicates that the implementation of the principle of subsidiarity shall take into
account the ‘ principle of sufficiency means’, according to which ‘ the Union shall provide
itself with the means necessary to attain its objectives and carry out its policies’.
22
23
Antonio Estella, The EU Principle of Subsidiarity and Its Critique
That is, those listed in Art. 7 ECT (ex Art. 4)
When it comes to Provision 3, it states that ‘the principle of subsidiarity does not call into
question the powers conferred on the European Community by the ECT, as interpreted by the
ECJ. Provision 8 recalls the principle of loyal co-operation when subsidiarity is implemented.
In those cases in which the Community considers that it should not act, the Member States
will be free to do so.24 However, the correlation between subsidiarity and loyal co-operation
established by provision 8 means that Member States’ intervention may not call into question
the objectives of the ECT and the other obligations contracted by them with the European
Community.
The Protocol also attempts to clarify the definition of subsidiarity, particulary in provision 3.
This provision states that subsidiarity is a principle regulating the exercise of Community
competences, since it ‘provides a guide as to how the Community’s powers are to be
exercised at the Community level’. This is an Amsterdam innovation. The provision also
establishes that the principle of subsidiarity is a ‘dynamic’ concept, which essentially means
that subsidiarity
allows Community action ‘when the circumstances so require’ and,
conversely, that it allows Community action to be restricted or even ‘discontinued’ where it is
no longer justified.25
5. Objectives
The principle has a two-fold purpose in Community law:26
a) to assess the need for Community action; even though Community objectives are set in
general terms by the EC Treaty, specific Community action must be justified wherever the
community has current competence with Member States
b) to control the exercise of power by the Community once the need for action has been
established; it’s connected with a principle of proportionality. According to the well
established caselaw of the Court a proportionate action is one which is no more than is
appropriate and necessary to achieve its desired goals.
The principle of subsidiarity is intended to guarantee a more efficient Europe, closer to its
citizens and more respectful of local and national identities. The essential idea is that
Leaving aside the question of whether the Community’s competence is exclusive or not. From a strictly legal
standpoint, if we take into account the silence of the ECT in this regard, it seems more appropriate to speak here
of ‘pre-emption’ than of exclusivity. If the field is already entirely occupied, this will hinder Member States’
interventions. See Goucha Soares (1998)
25
Antonio Estella, The EU Principle of Subsidiarity and Its Critique
26
United Kingdom Association for European Law, University Association for Contemporary European Studies,
“Legal Issues of the Maastricht Treaty”, edited by O’Keeffe, Twomey
24
decisions should be taken closest to where they will have their impact and be brought as close
to the citizen as possible.27
6.
Justification for the principle28
The justification for the principle is easy to see. The Community covers an area of
considerable geographical, economic, political, social, religious and cultural diversity. A
policy that works well in, for instance, Greece might be unsatisfactory in Denmark. In
principle, it makes sense for the Greeks to make laws for Greece and for the Danes to make
laws for Denmark: diverse conditions need diverse legislation. Community legislation should
be adopted only when there is a specific need.
7.
Defects of the principle 29
We may find four kinds of such deffects:
1.
article 3b (5) cannot be used to question the granting of powers to the Community, but
only the exercise of those powers by the passing of specific pieces of legislation.30 This means
that the principle of subsidiarity does not determine when the Community has competence to
intervene. According to this principle, the Community may act only when it has explicitly
been granted competence. Therefore, subsidiarity enters the scene only when it is clear that
the Community has competence to act. In other words, this principle regulates the exercise,
does not hold, of Community competence. 31
2.
article 3b (5) applies subsidiarity only in those areas which do not fall within the
exclusive competence of the Community- the text laid down in this article applies only where
the Community shares the concurrent powers with the Member States. Unfortunately, the
Treaty nowhere specifies which those areas are.32 The Comission has issued a list of areas
27
28
Miroslaw Matyja, Subsidiarity: A Tool for Gender Equality in an Enlarged EU
Trevor C Hartley, Constitutional Problems Of The European Union
Trevor C Hartley, Constitutional Problems Of The European Union
30
This follows from the fact that Art. 3b (5) is simply a Treaty provision like any other; consequently, it cannot
affect the validity of other provisions of the Treaty. See also Art. 3 of the Protocol on the Application of the
Principles of Subsidiarity and Proportionality (annexed to The EC Treaty by the Treaty of Amsterdam)
31
Antonio Estella, The EU Principle of Subsidiarity and Its Critique
32
Commentators have expressed divergent views. Toth considers that all the areas of power granted to the
Community under the EEC Treaty as originally concluded are exclusive: Toth, “The Principle of Subsidiarity in
the Maastricht Treaty” (1992) 29 CMLRev.669 at pp. 1091 et seq.; Steiner, on the other hand, suggests that the
29
which it regards as falling within the exclusive competence of the Community and therefore
outside the scope of the doctrine.33
3.
subsidiarity is difficult to apply in practice because different views could be held as to
when Community action is necessary.34 In attempt to meet this objection, the Member States
agreed in the Treaty of Amsterdam to add a Protocol to the EC Treaty, the Protocol on The
Application of the Principles of Subsidiarity and Proportionality. This makes clear that
both requirements in the definition in Article 3b (5) have to be met: it must be established that
the objectives of the proposed action cannot be sufficiently achieved by the Member States
and that they can be better achieved by action on the part of the Community.35 The Protocol
also lays down guidelines for determining whether these conditions are fulfilled. They
indicate that this is likely to be the case where:
-
the issue under consideration has transnational aspects which cannot be satisfactorily
regulated by action by Member States
-
actions by Member States alone or lack of Community action would conflict with the
requirements of the Treaty or would otherwise significantly damage Member States’ interest
-
action at Community level would produce clear benefits by reason of its scale or
effects compared with action at the level of the Member States
These guidelines make the principle easier to apply, but the fact remains that it is a really
matter of political judgment whether an issue can be ‘satisfactorily’ regulated by the Member
States, whether lack of Community action would ‘significantly’ damage Member States’
interests or whether action at Community level would produce ‘clear benefits’36
only areas in which the Community has exclusive competence for the purpose of Art. 3b (5) are those in which it
has already legislated: Steiner, “Subsidiarity under the Maastricht Treaty”, in David O’ Keeffe and Patrick M
Twomey, Legal Issues of the Maastricht Treaty (1994), p.49 at pp. 55-58; see also Emiliou, “Subsidiarity:
Panacea or Fig Leaf?” ibid., p.65 at pp. 74-75; Schilling, “A New Dimension of Subsidiarity: Subsidiarity as a
Rule and a Principle” (1994) 14 YEL 203 at pp. 217 et seq. (this last analysis is probably the most closely
reasoned)
33
See The Principle of Subsidiarity, Com. Doc. SEC(92) 1990, 27 October 1992, p.5
34
Lord Mackenzie- Stuart, a former President of the European Court, has called the definition of subsidiarity in
the Treaty a “prime example of gobbledygook”: letter to The Times 15 June 1992. This is an over-reaction, but
there can be no disguising the fact that it is not easy to apply in practice. See, further, Mackenzie-Stuart’s article
in The Times 11 December 1992
35
Art. 5 of the Protocol. This means that if the objectives can be sufficiently achieved by the Member States, the
Community is not allowed to act even if it could achieve them better. Moreover, even if they cannot be
satisfactorily achieved by the Member States, the Community cannot act unless it is established that it could do
better than the Member States.
36
A close Reading of the Protocol suggests that some Member States regarded the principle with suspicion and
were anxious that it should not restrict Community powers too much. Thus, Art. 2 specifies that the application
of subsidiarity must respect the acquis communautaire, thereby seemingly preventing it from applying to
legislation passed before the European Court on the relationship between Community law and national law, one
such rule being that Community law is supreme over national law. Art. 3 says it must not call into question the
4.
as things stand in present, it is far from certain that the European Court will be
prepared to strike down measures which infringe subsidiarity. In view of the Court’s
centralizing philosophy, it will probably be reluctant to do so. However, if the Court is not
willing to act, the principle may in time become a dead letter.37
8.
Where the principle applies
We may distinguish 2 levels where it applies:
1) during the Intergovernmental Conference,38 which is the formal procedure for
negotiating amendments to the founding treaties of the European Union; it is a legal-political
criterion delineating those areas where the Community should and should not act. In practice,
the concept is frequently used in a more informal manner in discussions as to which
competences should be given to the Community, and which retained for the Member States
alone.
2) as a constitutional principle
39
- applies to all the Community Institutions. The rule has
practical significance for the Council, Parliament and Commission in particular. The Court's
decisions are also bound by Article 5, second paragraph, ECT. Citizens of the Union cannot
derive any rights directly from this provision.
9.
Subsidiarity before the Court
The competence to review legislation has been granted to the European Court of Justice.
According to Article 230 ECT, the ECJ ‘…shall review the legality of acts adopted by the
European Parliament and the Council, of acts of the Council, of the Commission and of the
powers conferred on the Community by the Treaty “as interpreted by the Court of Justice”, apparently a
reference to the doctrine of implied powers developed by the European Court.
37
Art. 1 of the Protocol added by the Treaty of Amsterdam provides that, in exercising the powers conferred on
it, each institution “shall ensure that the principle of subsidiarity is complied with”. Since the European Court is
an institution, this appears to require it to use its judical powers to ensure that the other institutions respect the
principle, if necessary by annulling legislation that conflicts with it. See also the Conclusions of the
Presidency,European Council in Edinburgh (11-12 December 1992), Annex 1 to Part A, p. 4. In view of this, the
most likely outcome is that the Court will hold subsidiarity to be justicable, but will annul measures only in the
clearest cases. For more detailed analysis, see Toth “ Is Subsidiarity Justicable?” (1994) 14 ELRev. 268; and
Emiliou: “Subsidiarity: An Effective Barrier against ‘the Enterprises of Ambition’?” (1992) 17 ELRev.383, at
pp. 402-405
38
http://en.wikipedia.org/wiki/Intergovernmental_Conference
39
http://www.europarl.europa.eu/facts/1_2_2_en.htm
ECB, other than recommendations and opinions and of acts of the European Parliament
intended to produce legal effects vis-à-vis third parties’.40
Although the text of that article speaks of ‘legality’, and not of ‘constitutionality’ ,its second
paragraph indicates that one reason for which the ECJ may declare a legislative act void is
infringement of the ECT. If Community legislation may be annulled by the ECJ on the ground
of Treaty infringement, this amounts to constitutional review of legislation, at least in national
contexts.41
Subsidiarity gives a new argument for the Court to annul measures adopted by the Council.
The Court has adopted a very prudent approach regarding subsidiarity. Up to now, it has
never declared void a legislature measure because it contradicts subsidiarity. Beyond
descriptive analysis, it is also important to understand why the Court is not implementing
subsidiarity to its fullest. I am going to develop this matter later, for now I would just like to
mention that there are two kinds of explanations to account for the Court’s attitude. The first
has to do with the legitimacy of the Court. The argument is that the Court is not currently
implementing subsidiarity because, given that the principle is devoid of clear legal content,
the Court could be putting its own legitimacy at risk if it decided to do so.
The second explanation is connected with the Court’s vision of its own role in Community
integration. The argument is that the Court has its own political agenda, and that this agenda
is dominated by the idea of integration. The Court’s perception that subsidiarity, an antiintegration principle for the Court, puts its own integrationist agenda in real danger could also
explain its prudent approach to the principle.42
10. The Court’s doctrine on subsidiarity 43
The word which best summarizes the Court’s doctrine on the principle of subsidiarity is
prudence. Here prudence means restraint on the part of the Court. The Court could have used
the opportunity offered by subsidiarity to check whether the Community legislature is going
astray. The Court’s acting may be explained by taking into consideration two main variables:
40
Antonio Estella, The EU Principle of Subsidiarity and Its Critique
Alonso Garcia (1994) notes that Art. 230 does not differentiate in reality between ‘legality’ and
‘constitutional’ control. This may create some confusion as to the existence of constitutional review of
legislation in the EC context, at least for those lawyers educated in the continental tradition, which is in general
characterized by the distinction between ‘legality’ and ‘constitutionality’ controls, each being performed by
different courts
42
Antonio Estella, The EU Principle of Subsidiarity and Its Critique
43
Antonio Estella, The EU Principle of Subsidiarity and Its Critique
41
-
the Court’s own legitimacy as an institution
-
the Court’s political agenda
The Court’s Legitimacy (concerns the non-implementation of material subsidiarity). It’s
well known that the Court of Justice has moulded its case-law to the canons of classical legal
reasoning. It could not have done otherwise. The Court wished to exercise objectivity and
neutrality in its case- law, in common with courts on the continent, and beyond. Courts are not
generally elected bodies, and when they are elected it is not in the same sense as politicians.
Courts are essentially technical bodies. If they do not want their decisions to be challenged
they must be seen to be simply interpreting and applying a technical instrument: the law. The
European Court of Justice has gained legitimacy through its insistence on appearing to legal
practitioners. The Court knows that its survival as an institution, and the extent to which its
decisions are accepted, depend on its continuing to convince observers that its decisions are
based strictly on the interpretation and application of European Community law, and not
merely a matter of preference expediency.
The Court’s Political Agenda (concerns the non-implementation, or lack of full
implementation, of procedural subsidiarity). What the Court actually does as far as
procedural subsidiarity is concerned is merely to apply its case-law on article 253 ETC (ex
Article190).
That is, it exercises minimum control over the statement of reasons , or the requirement to
give reasons, as far as the Community legislature is concerned. The Court is satisfied if the
legislature merely makes a general statement of why it considered Community action to be
necessary. This stance cannot be explained by the Court’s legitimacy variable, since a
procedural subsidiarity assessment clearly fits within a legal assessment.
Conclusion. Concerning the material side of the principle, the Court stance seems to be clear.
This stance is that, save in cases where the Community legislature has commited a manifest
error, the Court will not review a Community legislative norm on grounds of subsidiarity.
Therefore, the Court will generally avoid, even on grounds of the principle of subsidiarity,
substituting an assessment by the Community legislature. Regarding the exceptions to that
rule, it is difficult to see in which cases the Court could conclude that the Community
legislature had committed a manifest error. It should be noted that the Court’s case-law on
manifest error is not especially clear.44 It seems to apply a sort of rule here. It takes each case
on its own merits, and analyses whether the Community measure is reasonable as regards the
44
See Case C-34/95 [1998] ECR I-4355
objectives pursued by the measure. In those exceptional cases in which it is patently clear that
the measure is not reasonable compared to the objectives, then the Court will annul it.
However, it is obvious that this approach is closer to proportionality than to subsidiarity.
On the other hand, as far as procedural subsidiarity is concerned, the attitude of the Court is
very flexible here as well. The Court is satisfied if the preamble of a measure briefly mentions
the reasons why the Community legislature deemed it appropriate to act. Furthermore, the
Court does not require that the Community legislature mention subsidiarity expressly. In this
respect, the stance of the Court does not differ much from its stance on Article 253 ECT as far
as legislative measures are concerned. In particular, the Court seems to require the
Community legislature to state reasons why, from the perspective of three standards
( dimension or scale of the action, effects, and sufficiency) it considers that it is better suited
to act than the Member States. However, the way in which the Court reviews the obligation to
state reasons is very superficial: a mere mention of the tree criteria in the measure’s preamble
seems to be sufficient.
11.
The early warning system in the new Constitutional Treaty 45
Early Warning System ( EWS), featured by the Protocol on the Application of the
Principles of Subsidiarity and Proportionality, annexed to the Constitutional Treaty,
46
means that EU institutions are obliged to inform National Parliaments at all stages of the
legislative procedure.
The establishing of an “early-warning” system regarding respect for the subsidiarity principle
will enable National Parliaments to ask the Commission to review a legislative proposal if
they consider that it violates the principle.47
According to the Constitutional Treaty, the Commission’s proposals for European legal acts
shall be sent to the national parliaments at the same time as to the Council and the European
Parliament. The national parliaments also receive the European Parliament’s drafts and
amendments as well as drafts from groups of Member States and the other EU institutions.
45
Margherita Poto, Democracy and Europe: New Times, Old Dilemmas
2. Protocol on the application of the principles of subsidiarity and proportionality, in Official Journal
of the European Union, C-310/207, 16 December 2004, also available on <www.eur-lex.europa.eu>.
47
http://europa.eu/scadplus/glossary/subsidiarity_en.htm
46
Each parliament then has the opportunity, within six weeks of transmission of the proposal, to
submit a reasoned opinion in which the parliament explains why, in its opinion, the draft in
question violates the principle of subsidiarity.
The Commission, the Council and the Parliament are obliged to take the opinion into account
and, if one third of the national parliaments complain that a specific EU bill violates the
principle of subsidiarity, the draft must be reconsidered. The Commission may then decide to
uphold its proposal, to amend it or to withdraw it. The decision must be justified.
Where this relates to drafts concerning the politically sensitive area of judicial cooperation in
criminal matters or police cooperation, the draft must be reconsidered if just one quarter of the
national parliaments issue a reasoned opinion.
The final part of this procedure gives to the Court of Justice jurisdiction to hear actions for
annulment brought by any Member State for violation of the principle of subsidiarity: Article
8. The Court of justice of the European Union shall have jurisdiction in actions on grounds of
infringement of the principle of subsidiarity by a European legislative act, brought in
accordance with the rules laid down in Article III-365 of the Constitution of Member States,
or notified by them in accordance with their national Parliament or a Chamber of it. Amongst
the benefits that should derive from this mechanism, if only it were in force, some authors
point out the possibility of improving compliance of EU regulation and of alleviating the
‘democratic deficit’, but noting in any case that there is one important element missing: ‘it
empowers national parliaments to review EU legislation for conformity with subsidiarity but
not with proportionality, its “sister principle”.48
12.
The early warning system in the Reform Treaty 49
When it comes to the Early Warning System in the Reform Treaty, national parliaments will
be given a greater role in any reform of the EU Treaty (new Article 33 replacing Article 48)
and in responding to new applications for membership (new Article 34 replacing Article 49).
National parliaments will be able to veto measures furthering judicial cooperation in civil
matters (new Article 69d).
48
49
See I. Cooper, The Watchdogs of Subsidiarity, cit., 283.
http://en.wikipedia.org/wiki/Reform_Treaty#The_European_Parliament_and_National_Parliaments
Article 8c: National Parliaments shall contribute actively to the good functioning of the
Union:
(a) through being informed by the institutions of the Union and having draft European
legislative acts forwarded to them in accordance with the Protocol on the role of national
Parliaments in the European Union;
(b) by seeing to it that the principle of subsidiarity is respected in accordance with the
procedures provided for in the Protocol on the application of the principles of subsidiarity and
proportionality;
(c) by taking part, within the framework of the area of freedom, security and justice, in the
evaluation mechanisms for the implementation of the Union policies in that area, in
accordance with Article 64 of the Treaty on the Functioning of the European Union, and
through being involved in the political monitoring of Europol and the evaluation of Eurojust's
activities in accordance with Articles 69k and 69h of that Treaty;
(d) by taking part in the revision procedures of the Treaties, in accordance with Article 33 of
this Treaty;
(e) by being notified of applications for accession to the Union, in accordance with Article 34
of this Treaty;
(f) by taking part in the inter-parliamentary cooperation between national Parliaments and
with the European Parliament, in accordance with the Protocol on the role of national
Parliaments in the European Union.
Protocol 2 provides for a greater role of national parliaments in ensuring that EU measures
comply with the principle of subsidiarity. In comparison with the proposed Constitution, the
Reform Treaty allows national parliaments eight rather than six weeks to study European
Commission legislative proposals and decide whether to send a reasoned opinion stating why
the national parliament considers it to be incompatible with subsidiarity. National parliaments
may vote to have the measure reviewed. If one third (or one quarter, where the proposed EU
measure concerns freedom, justice and security) of votes are in favour of a review, the
Commission will have to review the measure and if it decides to maintain it, must give a
reasoned opinion to the Union legislator as to why it considers the measure to be compatible
with subsidiarity.
13.
Subsidiarity and the Human Rights policy 50
The first essential element in building a new EU human rights policy is to establish that such a
policy lies within the constitutional competence of the Community and that it would not
violate important principles such as that of subsidiarity.
It seems sometimes to be assumed that the application of this principle requires that
responsibility for matters dealing with human rights should remain at the national level. But
this is a false assumption which actually undermines the objectives of the principle.
Consistent with the principle, Community-level action is warranted if the objective in
question cannot be adequately achieved by Member State action alone and if the scale or
effects of the proposed measures favour Community action. Clearly where the measures in
question are taken by the Community within the field of Community law it makes no sense to
argue that individual Member States are best placed to ensure not only that those measures do
not violate human rights but that they do whatever they can to promote respect for them.
Moreover, the guidelines contained in the Protocol on subsidiarity attached to the Amsterdam
Treaty correctly emphasize that Community action might be necessitated by various factors,
including the transnational dimensions of an issue and the existence of treaty obligations.
Thus a Community human rights policy is not only consistent with the principle of
subsidiarity, but is in some measure a necessity required by that principle.
14.
Conclusion 51
The European principle of subsidiarity is important because it is one of the key constitutional principles that serve to set the character of the EU. As a legal principle, a
justiciable constraint on the power of the Community Institutions, subsidiarity has had
little obvious effect. Perhaps daunted by the complicated political assessments the principle entails,52 or, less charitably, perhaps disinclined to develop a principle that limits the
centralisation of power,53 the European Court of Justice has not made use of the
50
51
http://www.jeanmonnetprogram.org/papers/99/990109.html
N. W. Barber, The Limited Modesty of Subsidiarity, European Law Journal, Vol. 11, No. 3, May 2005,
pp. 308–325
See generally: A. G. Toth, ‘Is Subsidiarity Justiciable?’, (1994) 19 European Law Review 268
53
See: J. Bednar, W. N. Eskridge and J. Ferejohn, ‘A Political Theory of Federalism’, in J. Ferejohn,
J. N. Rakove and J. Riley, eds, Constitutional Culture and Democratic Rule (Cambridge University Press,
2001).
52
principle. The degree to which subsidiarity has indirectly affected the measures
advanced by the Community is unclear. But the principle stands as a declaration of
how the EU perceives itself, and as the sort of political community the authors of the
Treaties intended it to be. In particular, it represents a commitment to democracy, to
de-centralised power and, most importantly, opposition to nationalist ideals of state
legitimacy.