Interpreting Subsidiarity – How to develop into a constitutional principle?

Abstract

The principle of subsidiarity is clearly one of the most ambiguous and disputed notions of European Union (EU) law. What started with the intention to create a simple mechanism that allocates competences to the Member States’ or EU level, in order to ensure that the level of government, best suited to pursue the task decided, so that legislation was enacted as close as possible to the citizens, ended in confusion. Since the question of allocation is inherently political it was quite unclear how much of a legal component was embedded in the principle. The low efficiency of the principle in reality is primarily due to the European Court of Justice’s (ECJ) failure to provide for a clear legal definition of it. In fact, it has never annulled a measure on grounds of subsidiarity and generally reviews the principle marginally and cautiously. Without the threat of annulment, the Commission has been careless in its justification for subsidiarity compliance of a legislative proposal. In order to enhance control, the Treaty of Lisbon has introduced an ex ante review of compliance by national parliaments (NP).8 Although this can potentially protect national ‘territory’ from a competence creep, the review’s full potential cannot be harnessed if lack of a uniform and efficient principle remains. Nevertheless, an interpretation of subsidiarity is also ultimately a question of governance as both relate to the issue of how the powers of the EU and the Member States should be applied. Even if a proper definition is found, should it be the EU or the Member States who decide to whom competence should be allocated? Is it the Member States, because they have conferred the powers in the first place or the Union due to its supranational character? As a consequence, this paper will address the question of how the principle of subsidiarity should be interpreted in order to form a workable mechanism that ensures an effective divide between EU and Member States’ competence?