Is it the job of politicians, judges, or both?
‘The principle of subsidiarity’, it’s a phrase that’s bandied about a lot by law lecturers, but what does it actually mean?
Well, in very simple terms it’s an important legal principle of EU law. It provides an answer to which parties within the EU (the Member States and European institutions) should act in a shared competence. It applies where the EU does not have exclusive competence. It will act only where objectives of proposed action cannot be sufficiently achieved by Member States at central or regional level, but can be better achieved at EU level.
The principle has mainly four origins: Greek philosophy, the writings of Saint Thomas Aquinas, the German corporatists of the seventeenth century, and the ‘social doctrine’ of the Catholic Church.
More recently, the Maastricht Treaty introduced the principle of subsidiarity, and it is now formally found in Article 5(3) of the Treaty on European Union (TEU).
So that’s what it is and where it came from, but how can it actually be guaranteed? By political means, by judicial means, or by some combination of these?
Let’s take a look at political means first.
In order to get the Member States to sign the Maastricht Treaty, the notion of the subsidiarity was put into the TEU. It’s been known as the word that saved Maastricht, and in that sense there is a strong political message behind the principle.
Subsidiarity is a state of mind, rather than a legal concept. The launch of the principle makes the EU change its concentration on decision making processes, i.e. it makes legislators take some actions that they did not take previously, and it forces the institutions to justify what they do.
Since Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality was introduced, the role of national parliaments from the Member States has been to basically check whether EU proposals are in breach of subsidiarity rather than let the EU institution do it on their own. There is now an obligation on the EU to refer proposals to the national parliaments after the Lisbon Treaty.
The new procedure involving national parliaments is one of the democratic elements that added to the EU law decision-making process. Therefore, the ex ante monitoring role of the national parliament has been strengthened in regards to the control over the notion of subsidiarity.
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This system is called the ‘early warning system’, and is used to ensure that a draft EU legislative act complies with the principle of subsidiarity. According to article 7 of the protocol, a draft EU legislative act must be reviewed within eight weeks and each national parliament has two votes (e.g. in the UK, one vote is for the House of Common, and one is for the House of Lords).
There is, however, no blocking mechanism for national parliaments. The impact of national parliaments’ votes is that if one third of national parliaments’ votes are against the legislation (oppose its subsidiarity arguments), the draft legislative act must be at least reviewed by its initiator (Commission). The draft legislative act can be maintained, amended or withdrawn. This procedure is described as a ‘yellow card’ subsidiarity early warning mechanism by commentators.
If simple majorities of the national parliament votes oppose the proposed legislation on subsidiarity arguments, the Commission will then be required to produce a reasoned opinion response. Commentators describe this procedure as ‘orange card’.
However, what the existing procedure is lacking is a ‘red card’, which means that the EU does not allow national parliaments to block a measure, and there is no obligation for the Commission to take action.
The political process therefore has its limits, so let’s take a look at the principle of subsidiarity being guaranteed by judicial means.
After the draft legislative act in question has been made, the Member States can still claim that the legislation is in breach of the principle of subsidiarity. According to article 8 of the protocol, the European Court of Justice (CJEU) has jurisdiction to review EU legislative acts for breaches of subsidiarity.
However, in practice, the CJEU is very reluctant to get involved in a subsidiarity argument. In reality, the court often applies other legal arguments (e.g. conferral and proportionality argument), instead of using the subsidiarity principle. The cases of UK v Council (Work-Time Directive) and R v Sec State Health ex parte BAT et al (tobacco labeling) show that — although Member State will argue that if the policy area that the legislative act involves is a national issue, they are best placed to make the decision — the CJEU will completely reject this argument and apply the proportionality test instead.
To a large extent then, the principle of subsidiarity is guaranteed by both political means and judicial means. This is because the politicians act as an ex ante subsidiarity control (the early warning system) and the judiciary acts as an ex post subsidiarity control (bringing a case to the CJEU).
The political means and judicial means are closely related in terms of controlling the subsidiarity principle. For example, the Member States (national parliaments or one of the chambers if it is a bicameral parliamentary system, such as UK’s House of Commons and House of Lords) can bring a case to the CJEU if they find that the EU institutions did not comply with the subsidiarity principle.
It sounds fair, but there are a lot of problems with the current system.
There are mainly two problems associated with the early warning system. The first one is lack of co-ordination by the national parliaments, and the second is the preponderance of upper chamber response.
In terms of the first problem, I suggest the time limit for the national parliaments to review the draft EU legislation should be extended, in order to give them more time to co-ordinate efficiently.
In terms of the second problem — since the political priorities for both upper and lower chambers are currently the same — reform should be made in order to ensure the lower chamber has a higher political priority. This would mean stronger democratic credentials for the law drafting process.
Charles Mak is a final year law student at the University of Sussex.