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The Principle of Subsidiarity
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Lecture notes of 5 pages for the course Constitutional Foundations in the EU at UoS (.)
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The Principe of SubsidiarityExercising and Limiting Powers
The EU is not omni-competent:
Broad values and objectives in Arts 2 and 3 TEU.
Art 5(1) TEU – ‘The limits of Union competences are governed by the
principle of conferral’.
Art 4(1) TEU – ‘…competences not conferred upon the Union in the Treaties
remain with the Member States.
No Treaty base means no power to act!
Categorisation of Competences (Post-Lisbon)
Art 3 TFEU – EU exclusive competences.
Customs Union.
Common commercial policy.
Art 4 TFEU – EU/Member States shared competences.
Art 5 TFEU – Member States shall coordinate their economic policies within the
Union.
Art 6 TFEU – EU competence to carry out actions to ‘support, coordinate or
supplement’ Member State actions.
Competence Disputes – Turf Wars
Horizontal disputes.
Between institutions.
Commission and EP v Council.
Vertical disputes.
Between EU and Member States.
About how to pursue certain competences, specifically shared
competences.
Vertical Disputes – When Both the EU and MS Could Act Who Should Do So?
If EU has exclusive power in a field of activity, Member State action is precluded.
If both Member States and EU have power to act (competence is shared), which
should do so?
Art 5(3) TEU – principle of subsidiarity.
‘…in areas which do not fall within its exclusive competence, the
Union shall act only if and in so far as the objectives of the proposed
action cannot be sufficiently achieved by the Member States, either at
central level or at regional and local level, but can rather, by reason of
the scale or effects of the proposed action, be better achieved at
Union level’.
‘either at central level, or at regional and local level’.
o Added by the Lisbon Treaty.
o Increased the scope of the principle of subsidiarity.
o Enhanced the impact of the principle of subsidiarity.
o Treaty of Lisbon tries to strengthen this idea of
subsidiarity – EU should only act, insofar as it is
, necessary to introduce effective measures in a certain
policy field.
Action should be taken where it is most effective.
o European level? – by EU.
o Domestic level? – by MS.
Subsidiarity – Political Context
Idea from Catholic social tradition and federalism.
Especially in the 1930s when fascist regimes were taking hold in Europe (e.g.
Germany).
Action should be taken at the most local level as possible.
Effective locally.
First included in EU law by Treaty of Maastricht 1992.
‘A Treaty too far’?
Expansion of EU competences into new fields.
Principle of subsidiarity was introduced to show that the EU would
only make use of those competences, to the extent that it could act
more effectively than Member States.
Subsidiarity – ‘the word that saved the Maastricht Treaty’.
Counter-balance to the increase in number of competences.
Insertion of subsidiarity provision to put brakes on unnecessary
actions at EU level.
Does Subsidiarity Make a Difference?
John Major, Prime Minister of UK, 1992.
‘repatriation of powers’.
Made sure that Member States retained their powers when it would
be more appropriate or effective for them to be active in a particular
competence.
Mary Robinson, President of Ireland, 1996.
‘the chief advantage…seems to be its capacity to mean all things to all
interested parties – simultaneously’.
Good tool to avoid conflicts (in theory).
May lead to conflict, if different institutions or Member States
interpret the principle of subsidiarity in different ways (in reality).
European Commission 1993.
‘subsidiarity is primarily a state of mind’.
Different interpretations of the principle of subsidiarity.
Mostly an idea that institutions and Member States should interiorise
and reflect in their practices.
Ex ante effects.
Making legislators think before they act?
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