EU subsidiarity

final yr

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Potential exam q's:

Essay Exam Q's:

1.  ‘Recent developments relating to the principle of subsidiarity have undoubtedly enhanced the political and practical significance of this principle.’ Discuss this assertion and critically assess the likelihood that the Court of Justice will begin to engage to a greater extent with the principle in its decision-making. 

2.  ‘Subsidiarity could be an effective principle if national Parliaments used it properly. However, this has not proved to be the case in practice and the principle remains the empty rhetoric that it always was.’ Explain and evaluate this statement. 

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Subsidiarity overview

- What are the limits on the decision making of the EU and how the dividing line is policed/regulated. Control limits of competencies of the EU is answered by the principle of subsidiarity = a key constitutional principle of the EU. 

- The EU is not onmipotent (cannot do what it likes). No treaty base = no power to act. 

- Its broad values are set out in a comptency catalogue:

- Art 2 and Art 3 TEU (governs values of dignity/rule of law/democracy and lists objectives/aims/goals). 

- The limits of the union = Article 5(1) TEU = principle of conferral. Cant take what it wants! 

- Art 4(1) TEU=competences not conferred on EU in the treaties remain with the MS

- Art 5(3)=  ‘Under the 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.

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Subsidiarity overview


Art 3-6 TFEU: vagueness around limits so led to a catalogue of specific competences

Art 3 TFEU: EU's exclusive competences

Art 4 TFEU: Shared competences

Art 5 TFEU: MS shall coordinate economic policies with EU

Art 6 TFEU: EU to carry out actions to support, coordinate or supplement MS actions (certain policies: form of shared power)

- Whilst the main test of subsidiarity is essentially the same as its predecessor (Art 5 EC), the Lisbon changes introduced the new procedural device of involvement of national Parliaments 

- Prior to Lisbon, no discrete body of provisions that explicated clearly the different types of EU competences which gave rise to MS's concerns about expansaion of EC in light of broad Art 95 and 308 EC, further exacerbated by inter-institutional battles over correct treaty provisons to be used for EU legislation. The taxonomy of EU competence was still unclear post Maastricht but it was felt subsidiarity would help prevent excessive power by Brussels. 

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Subsidiarity origins

- Historically, subsidiarity has strong associations with Catholic doctrine. In secular usage, it carries the notion of demarcating the federal/local levels of government or patrolling the central/decentralised functions or activities. In the specific context of the EU is was introduced by the Maastricht Treaty as (it has been claimed) the safeguard to get all the Member States to agree to the wider expansion of EC/EU competences under that Treaty. Subsidiarity has been named the word that saved Maastrict (Cass, 1992). 

- Only the Court of Justice can definitively identify the meaning of subsidiarity since it is a Union law concept. However, the Member States have persistently tried to impose their own interpretation. First, they adopted a position themselves at the European Council  Edinburgh Summit 11-12 December 1992 in the form of principles and guidelines. These were subsequently approved and formalised by the incorporation of a Protocol to the Treaty of Amsterdam. The Lisbon Treaty brought forth a revised Protocol – now Protocol (no 2) on the Application of the Principles of Subsidiarity and Proportionality.

- However, as seen below, the Court has never actively engaged with the principle as a tool for the judicial review of EU acts and it remains to be seen whether the recast Art 5 TEU or the new Protocol will significantly change this.

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Subsidiarity – political rather than legal value?

- A recurrent way of looking at subsidiarity divides it into either ex ante/ex post facto usefulness or, put differently, political or legal relevance. Thus, to put it in extreme terms, the real value of subsidiarity is it makes legislators (and proposers of legislation, ie the Commission) think BEFORE they bring forward EU legislation in a particular area (i.e. zoos and gaming where they were made to thought as they werent competent). Conversely, subsidiarity may not be a suitable legal instrument for undoing an EU act AFTER it has been passed – especially if the Court has other tools (such as proportionality or conferral of powers) to review legislation.

- Estella 'The EU principle of subsidiarity and its critique' 2002: argues that attempting to define ex ante criteria og a general+abstract character in order to limit central intervention stands little hope of success, it will always be possible to argue in light of the close relationships between these areas and development of a single market, some Community intervention will always be necessary.'

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- Support from this view is perhaps seen in the inclusion post-Lisbon of national Parliaments in the scrutiny process to the extent that those bodies have the opportunity to object to proposed EU measures on the grounds of lack of subsidiarity. See Arts 4-7 of Protocol (no 2). Each national body has 2 votes (thus in the UK, House of Commons and House of Lords have one each).

- The Protocols (adopted by Lisbon Treaty changes). Art 5: contained detailed statement making it possible to appraise EU compliance with subsidiarity i.e. before the EU acts, must set out reasons for why it thinks it is competent to act=political initiative to get it right!), substanted by qualitative and quantitative indicators where possible. Art 8 Protocol: CoJ jurisdiction to review EU leg acts for breach of subsidiarity, but Pre-Lisbon there was reticence as it was deemed a political rather than legal competence that the Commission is better placed to do. 

- Regrettably, it should be noted that the Protocols permit MS's to offer reasoned opinions that relate only to subsidiarity, not proportionality= a disaggragation of the two principles. 

- Greater use by Commission of directives,guidelines+codes of conduct rather than regulations. 

- JM Barroso, Political Guidelines for the Next Commission 2009: we must kill off the idea that the MS and EU are rivals. Should be working to same goal- to ensure best results for citizens. Mistrust is key, as seen in the financial regulation 2008 disaster. 

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Competence Disputes or 'turf wars'

Horizontal disputes: between institutions of EU (Parliament vs. Commission)

Vertical disuputes: between EU and MS (e.g. tobacco advertising directive, Germany said: no right to intervene, Court=its health and therefore not for EU). When both EU and MS COULD act, who SHOULD act? 

- If EU has exclusive power=MS precluded

- If both EU and MS have power to act (shared), which SHOULD act? This is answered by Art 5(3) test and principle of subsidiarity. I.E. EU can only act where MS cant fulfil obligations. Aimed at tackling MS concerns over the erosion of sovereignty. 

- Maastrict: a treaty too far? expansion of EU competences into new fields! A compromise was the word 'subsidiarity' aka the word that saved Maastrict. John Major argued that subsidiarity was about bringing rights back and power/competencies to MS's. Other countries saw subsidiarity as bringing more power/competence to the EU level for enchanced power. 

- Chief advantage of subsidiarity: has the capacity to mean all things to all interested parties simulataneously (President of Ireland Mary Robinson 1996) 

- Subsidiarity is primarily a state of mind (Commission 1993) 

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Pre-Lisbon reticence

CoJ was reticence to get involved: believed discretion vested in EU legislators+ alternative review methods (conferral of powers principle and proportionality). The CoJ adopted a 'light touch': 

1. UK v Council [1996] (Work Time directive): max 40hrs working week, rest day=Sunday, court rejects claims of subsidiarity infringement as part of health/social policy that EU has competence within (Art 154 TEFU). UK didnt like any regulation of employment market and argued it is better handled at national/local MS level. Court prefers proportionality over subsidiarity + no EU breach.

2. Germany v European Parliament+Council 2000 (legislating on tobacco advertising)CoJ held duty to give reasons did not require EU measures contain express reference to subsidiarity principle. Clear enough in recitals why EU could act. 

3. Netherlands v Parliament+Council (2001) (biotechnology)

4. R v Sec State Health ex parte BAT (2002) (tobacco labelling): dismissed as EU incompetent originally so EU came back with new policy to attempt to be competent, but MS concered over EU's control and argued breach of subsidiarity. Court agrees w/EU and states it is an internal market policy not healthcare as MS argued. Eliminating barriers between MS's cannot be sufficiently achieved by the MS's individually. 

5. R on application of Alliance for Natural Health v Sec State for Health (2005) (food supplements)

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Court reticence post-Lisbon

7. Vodafone v Sec State for Business (Grand Chamber) 2010: retail legislation+wholesale charges for roaming phone networks, challeneged by V as inclusion of retail framework was a breach of subsidiarity, not for EU+should be local, courts refused=subsidiarity doesnt call into q the powers of the EU as interpreted by the court, 'interdependence means that the EU can legitimately take the view it has to intervene, the objective pursued could be best achieved at EU level.'

- In an attempt to reduce the matters getting to court, new protocol introduced: involved Nat Parliaments in drafting stage of EU legisl and reducing the opinion that the EU is democratically deficient. Specific reference to nat Parliaments in Art 12 TEU 'by seeing to it that the principle of subsidiarity is respected in accordance with procedures provided for in the Protocol.' 

- Protocol (no2) on the Application of the Principles of Subsidiarity: Art 4 (Commission to send draft EU acts to nat Parliaments at same time as Union legislator=added democracy). Art 6 (nat Parliaments have 8 weeks to send reasoned opinions why draft leg doesnt comply with subsidiarity). Art 7 (EParl, Commission and Council SHALL take a/c of opinions of nat Parls). 

- Art 263 TFEU: allows recourse to CoJ for subsidiarity infringements for MS. But leaves open intensity issue of judicial review: CoJ will not lightly turn on EU action for breach of subsidiarity. Low intensity judicial review is v. criticised.  

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Nat Parls VOTES

- Art 7(2): if 1/3rd of nat votes against legislation, draft be reviewed by initiator (i.e. rethink reasons for suggesting it was within EU competence) = YELLOW card. (UK=2votes as HL and HC)

- Ordinary Legislative Procedure proposals: Art 7(3) a simple majority will require Commission to produce reasoned opinion response. 55% of Council or simple majority of E Parl can drop the measure (dont have to, but agreeing with MS) = ORANGE card. 

Has this worked post Lisbon?

- There is a lack of co-ordination by nat Parls (difficult to get it together to trigger yellow or orange card system and some nat Parls are not even engaging particularly Nordic Parls). Only 10 out of 139 docs commented upon received responses from 4 or more Parls (minimal engagement). Desirability is needed, not always legitimacy. The HoL's has sent all of the UK reasoned opinions, but they have a less pressing agenda than HC. 

- Nat parls have only acquired scrutiny role, not changed the EU institutional balance in decision making. Nat Parls not sufficiently organised to act together. The court continues its reticence to intervene which doesnt help matters (Vodafone)! 

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Q's to consider

-  Is subsidiarity really a legal test? how does Court decide who is ‘better’ placed level to act?

-  Is subsidiarity otiose/useless? Could it meaningfully+effectively be replaced by a test of proportionality (see especially the Davies article, above).

 -  If nat Parliaments exercise their post-Lisbon powers to object, will this put pressure on the Court to become more substantively involved in the application of subsidiarity?  see Dougan (2008) 45 CMLRev 617 at 657-661; see Kiiver (2011) article. 

-  What is the EU for? How have its purposes changed over time, and why?

 - How are the boundaries between EU/national competences patrolled or conflicts resolved?

-  What are the main institutions of the EU and which is the most powerful?

-   What is subsidiarity, and is it better seen as a political or legal tool?

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Powers of the instutitons

- Commission post Lisbon slimmed down. Commission plays huge role and is the initiative in the legislative process per Article 17(2) TEU but have to be approved by Council and Parliament

- European Parliament has more power post Lisbon, as they are no longer merely consulted in the legislation process but have a coordination role and a veto option too (previously their powers were very limited).

 - European Council (the political decider) post Lisbon can modify the number of Commissioners in the European Commission (Commission has always been the most political force committed to integration but influence of Commission has declined post Lisbon). The European Council post Lisbon is now mentioned in the treaties too.

- Court of Justice has more legal power post Lisbon


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Academic commentary

3. R Shutze: Subsidiarity after Lisbon: reinforcing the safeguards of federalism?' 2009: the principle of subsidiarity has remained a subsidiary principle of European constitutionalism because of its continued absence of clear conceptual contours. Subsidiarity wasnt taken very seriously+various reforms to concrete its procedural nature+obligations for each institution  (Amsterdam protocol)+ substantiate the principle as a judicial safeguard of federalism and to reinforce it as a policitical safeguard of federalism. Shutze distinguishes between judicial and political safeguards of federalism. Procedural involvement of nat parls promised to strengthen fereral and democratic safeguards within Europe by integrating nat parls into the EU decision making process with a direct relationship between MS and EU. Lisbon continues to proceduarlise subsidiarity w/out turning it into a hard and fatally efficient political safeguard to federalism and maintaining it as a soft constitutional solution. Judicial safeguards of federalism: ex ante JR on subsidiarity grounds. CoJ makes distinction between whether (subsidiarity) and how(proportionality) EU should exercise competence but this is misleading since subsidiarity should be understood in terms of federal proportionality, subsidiarity will ask whether the EU unnecessarily restricted MS autonomy but should question federal proportionality or remain empty formalism. The EU, like American Supreme Court view subsidiarity as a presumption against pre-emption, but presumptions can be overturned and hence why hard (veto) constitutionalsm is needed, quite different to what the CoJ has opted for in its reticence. 

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Academic commentary 2

1. P Kiiver 'the early warning system for the principle of subsidiarity: the national par as a Conseil d'Etat for Europe' 2011:  Lisbon didnt introduce Conseil Constitutionnel but EWS for subsidiarity did bring amount sort of Conseil d'Etat for nat parls to exercise advisory role in EU leg process but this is merely the nat Parls being sidelined and the game being played by the EU without them, although this dilligent watchdog role could be quite attractive. EWS=subsidiarity control mechanism. Early critique that EWS is not binding and may never be triggered as thresholds unattainably high with short time limits. (But this has to be weighed against the EU attempting to get work actually done and goals achieved!). EWS=window dressing? Yellow/orange cards may not be triggered but this shouldnt be seen as the systems weakness, but if the Commission stays within the limits of conferred competences, there will be simply no need to raise them!

 2. Davies 'subsidiarity: the wrong idea, in the wrong place, at the wrong time' 2006: subsidiarity inquiry is misplaced and focus should be on whether challenged EU legislation is disproportionate by intruding too far into MS values in relation to the objective sought to be obtained. 

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Academic commentary 3

3. P Craig 'subsidiarity: a political and legal analysis' 2012: distinguishes between legal and political rationales behind subsidiarity in Maastricht Treaty. The S word was important in allaying fears about F word (federalism).Subsidiarity was pereceived as a way of enhancing pluralism and diversity of national values.  Thinks that subsidiarity is defective+ not reaching the goals that it aimed. It is time too time consuming for the MS’s to write opinions particularly when the court adopts such a light touch to subsidiarity and the 8 week limitation period.  With only 20 cases of subsidiarity bought in the last 20 years post Maastricht Treaty (which introduced the whole principle of subsidiarity), it is clear that it is not effective as it should or aimed to be. Doesnt think Davies' grounds for the case of proportionality control is strong as based on hypothetical examples with limited efficacy. The main issue is the determination of which level of government is best suited for regulatory tasks and will always be coloured by what MS are willing to accept for the devil is always in the regulatory detail. Subsidarity has negatively impacted on regulatory efficacy. The law in legislative design is crucial and its importance is insufficiently appreciated/under researched. JR of compliance with subsidiarity has been of limited impact and unlikely to change post Libson, notwithstanding enhanced role accorded to nat parls. Commissions willingness to consider concerns is welcomed, although should be mindful of dangers of diluting such concerns if they become merely part of general political dialogue between MS and Commission. 

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1. Very few cases, often duplicate cases, and cases where other MS's have argued differently and held it was consistent with EU competence, a uniform view from MS's is untenable. AG Maduro in Vodafone case=more searching but same result. Davies' proposition for proportionality doesnt show that any cases would be decided differently and would be difficult in practical terms, positive law and conceptual level problems. 

2. Lisbon added clarity: catogorisation of exclusive competence, shared competence and competence to support, coordinate or supplement. Exclusive=relatively narrow but scope is broader and problematic. Support,coordinate and supplement=v.helpful= boundaries on EU comeptence through proscription of harmonisation. Attempt to strengthen nat parls is welcomed but unlikely to be effective in practice, as has been shown. 

3. During 2010, Commission sent 82 draft leg acts to nat parls for subsidiarity scrutiny, received 211 opinions of which 15% raised subsid concerns. Never came close to triggering yellow or orange mechanisms under Protocol. Comm nontheless replied to each opinion within the broader context of political dialogue. Comm has made clear whilst subsidiarity controls only apply to draft leg acts, it will also consider opinions of nat parls on other acts within framework of political dialogue. Shows a real willingness to engage with and diffuse the 'divide' line. 

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