Has Subsidiarity Been a Clear Notion in the European Communities?

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‘Subsidiarity is also not a new concept. In fact, there were references to the principle in the founding Treaties which identified that decisions should be taken as closely as possible to the citizens affected by them.’ In Storey and Pimor, Unlocking EU Law, 5th edition, London and New York, Routledge, 2018

Discuss this statement in the light of Treaty provisions, case law and academic commentary, emphasising whether subsidiarity has been a clear notion since the inception of the European Communities or not, and why.

 

Introduction

The principle of subsidiarity is a binding legal principle of the European Union[1] and as the quote suggests; references can be found in the Treaty on European Union 1992 (hereinafter referred to as Maastricht Treaty or the Treaty)[2] in both a direct and indirect statements. These statements are important to interpretations of the principle of subsidiarity as they create the foundation of the concept. However, analysis of these mentions reveals areas of uncertainty within them, suggesting that the principle is not as clear a notion as the Treaty may seem to propose. The three direct mentions to subsidiarity, are found in the Preamble to the Treaty[3], Article B of the General Provisions[4] and a finally in Article 3b of amendments to the European Commission[5]. In this essay I will assess the areas which the principle has been left open to interpretation by analysing these three direct mentions of the principle of subsidiarity found in the Treaty of Maastricht and other possible indirect references contained in said Treaty.

Of the three direct references, Article 3b provides the most substantial explanation for the principle of subsidiarity as it sets out criteria by which the powers shall be shared between The European Community and Member States. Furthermore, Article B of the General Provisions confirms that this article provides the definition[6]. However, in this statement there are elements which need clarification as there is room for ambiguity which may lead to different interpretations of what the principle of subsidiarity is in context of the European Union.

The first area of ambiguity can be found in initial sentence of the article which lays out that the “community shall act within the limits if the powers conferred upon it by this Treaty.”[7]. The area of ambiguity here is what is meant by “powers”. By opening the definition with reference to the “community” it emphasises that this definition regards only the European Community, therefore, reference to powers could then be synonymous with competences but, could also mean instruments which the Community uses to exercise its competences. To understand the powers of the Community, reference must be made to The Treaty of Rome[8] where the objectives detail (especially in Articles 2 and 3 (EEC, 1957) the limit of the Community. Therefore, this opening sentence is often not regarded as part of the definition of subsidiarity but rather sometimes referred to as the principle of conferred powers by critics such as (toth 1994a p.38) , thus distinct to the following paragraph. This is could be seen as creating an unclear notion of what subsidiarity is as interpretations dispute of where the definition itself starts. Furthermore, this highlights an issue which will be addressed again later in the essay of the need direct references to reference other areas in the Treaty to understand the principle further.

A second area of ambiguity of Article 3b can be seen in opening of the second paragraph in regard to the scope of the principle which is established as all other “areas” not under “exclusive competence”[9]. This is significant in defining the extent of the possible application of the principle and before the Treaty of Lisbon there were no simple criteria in determining the scope of Community’s “exclusive competence”[10]. By “areas” the intention was most likely to mean policy areas of the European Community however, it is sometimes interpreted as objectives or even spheres of competence by critics such as (endo 1994, p.1987). As this was unclear, the Commission through its proposals to establish a series of policies for which the Community has exclusive competence advised that areas equate to policies. These actions provide in themselves evidence that the principle of subsidiarity has not been clear from the founding Treaties as they provided further explanation to the fundamental aspect of where the principle applies.

The second section of Article 3b also leaves areas which need clarification as it creates a test which assesses whether it will be legally permissible for the Community to act in accordance to the principle of subsidiarity. The issue with this section is the conditions which must be satisfied are themselves open to different interpretations. Though establishing the Commission may act when the “objectives of proposed actions cannot be sufficiently achieved by member states”[11] it is not established how sufficiency will be determined nor what sufficiency actually means in this context. The word “sufficiently” has seen two main interpretations emerge; efficiency or effectiveness. Therefore, sufficiently is either a measure of the extent of which a Member state can realise the objective or alternatively the cost of effort required. Critique Toth acknowledges that it could be either[12] however, critiques such as Gonzales are adamant that it means effective stating that the Community will take action when “it will be more effective”[13] than member states. On the other hand, an alternate critic Bernard refers to the test being one of “comparative efficiency”[14]. The significance of this difference in interpretation means when applied to a specific policy proposal though an individual state may reach the objective it may be less effective than if the Commission were to do so. This discrepancy in interpretations is highly significant as when the Community should act is the integral part of the subsidiarity principle. Therefore, it furthers the notion of subsidiarity not being a clear notion as such a significant term is the subject of such different interpretations.

The second reference to subsidiarity can be seen in Article A paragraph b of the common provision of the TEU which states “the principle of subsidiarity as defined in Article 3b of the Treaty establishing the European communities.”[15]. This confirms that Article 3b is the Treaty definition of subsidiarity. However, as it is in the Common Provisions of the Treaty it extends the application of subsidiarity to the entire Union. This brings further complications to the understanding of the concept of the principle of subsidiarity. This is as the definition is specifically set out for objectives under Community and only applies to areas of non-exclusive competence. This creates the problem that when the definition is lifted directly it cannot be directly applied to non-Community contexts as areas become meaningless. Furthermore, there is area for conflict between Community and Union objectives. However, this could be seen to go against the later Article K3(b)2 which states action should be taken when “the objectives of the Union can be attained better by joint action than by the Member States acting individually”[16] which though not containing the word subsidiarity expresses a similar idea to that in Article 3b as noted by critiques such as Steiner  [17]. This statement does not include however any references to exclusive competences because it is in regard to the Council to which this distinction does not apply. The fact that such a similar statement is void of the specific reference to the principle of subsidiarity and also exclusive competences could be evidence that the definition of Article 3b is Community specific. Therefore, it is conflicting with the reference to subsidiarity in the Common Provisions as it is not applicable Union wide and therefore not a clear notion.

The last of the direct references I will address is the mention in the Preamble. This mention, as the quote from Storey and Pimor suggests, relates to the relationship of the principle of subsidiarity to taking decisions as closely to the citizen as possible. Although stating this, the Treaty does not directly elaborate on how this is to be done in this section. However, in Article A there is an extremally similar statement to bringing decisions closer to the citizens though it lacks the word ‘subsidiarity’. This statement is so similar to that in the preamble that critiques such as Gonzalez have stated that there are “references to subsidiarity in the Preamble and Article A.”[18] even though it doesn’t contain the word ‘subsidiarity’. The issue this creates is even in the initial mention of subsidiarity links to other non-subsidiarity areas are made which as explored previously in the essay leads to different interpretations of what it means to take decisions as close to the citizens as possible. One interpretation is that it could mean the definition of the principle itself is the taking of decisions as close to the citizens as possible as Article A suggests. On the other hand, it could mean that the principle of subsidiarity is the overarching principle which should be considered when trying to take decision as closely to the citizen as possible.

When assessing whether the principle of subsidiarity is a clear notion, as well as assessing the founding treaties, looking at later developments of the principle may also establish whether it has been a clear notion. The Lisbon Treaty replaced Article 3b’s protocol on the application of the principle of subsidiarity with a new test in Article5(3)-(4) TEU[19]. The main difference being the requirement of the Commission to now send all legislative proposals to national parliaments at the same time as to the union institutions[20]. This new protocol imposes obligations onto the Commission to ensure compliance with the principle of subsidiarity. The formalisation means any discrepancy in interpretations of the pervious legislation has been removed. This suggests that this was a needed replacement as the previous Article 3b[21] was not sufficient in leading to the incorporation of the principle of subsidiarity. 

The principle of subsidiarity is definitely an important concept in the inception of the European Communities as demonstrated in the direct mentions in the founding Treaty of Maastricht[22] . However, through analysis of these mentions it has made clear that there are areas of uncertainty to what the principle meant in the context of both the Commission and the wider Union and also how the principle should be applied. These uncertainties are significant as the different interpretations can invite distinctive actions which have different consequences. However, with the introduction of the Lisbon Treaty amendments to the Treaty of Maastricht it is clear that these notions created a starting point for the development of the principle of subsidiarity which continues to be an integral principle of the European Union.

Bibliography

Primary Sources

  • Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 OJ C 306, 17.12.2007
  • Treaty on European Union (Maastricht, 7 February 1992) OJ C 191, 29.7.1992
  • Treaty establishing the European Economic Community (Rome, 25 March 1957)

Secondary Sources

Journal articles

  • Bernard N. (1996), The Future of European Economic Law In the Light of the Principle of Subsidiarity, Common Market Law Review, 33, pp.636-666.
  • Bull EC, ‘1st Report of Commission on Subsidiarity’, (10-1992, 116) COM(94) 533
  • Gonzalez J. P. (1995), The Principle of Subsidiarity: A guide for lawyers with a particular community orientation, European Law Review, vo!. 20, no. 4, August.
  • Resolution on the Commission’s report to the European Council – ‘Better lawmaking 1997’ (COM(97)0626 C4-0656/97)
  • Steiner J. {I994), Subsidiarity Under the Maastricht Treaty in Okeefe and Twomey (eds.), Legal Issues ofthe Maastricht Treaty.
  • Toth A. G. (1992), The Principle Of Subsidiarity In The Maastricht Treaty, Common Market Law Review, 29.  

[1] Resolution on the ‘Better lawmaking 1997’ (COM(97)0626 C4-0656/97) OJ C 98, 9.4.1999

[2] Treaty on European Union (Maastricht text), OJ C 191, 29.7.1992

[3] Ibid.2 No C 191/1

[4] Ibid.2 No C 191/4

[5] Ibid.2 No C 191/6

[6] Ibid.5

[7] Ibid.5

[8] Treaty establishing the European Economic Community (Rome, 25 March 1957)

[9] Ibid.5

[10] Bull EC 10-1992, 116; 1st Report of Commission on Subsidiarity, COM(94) 533

[11] Ibid.5

[12] A. G. Toth, ‘The Principle Of Subsidiarity In The Maastricht Treaty’ CMLR 29 (1992) p.43

[13] P. Gonzalez, ‘The Principle of Subsidiarity: A guide for lawyers with a particular community orientation’ ELR (1995), 20, p357

[14] N. Bernard, ‘The Future of European Economic Law In the Light of the Principle of Subsidiarity’, CMLR 33 (1996) , 33, p.653

[15] Ibid.4 Art.A

[16] Ibid.2 No.191/61 2.b

[17] J. Steiner, ‘Subsidiarity Under the Maastricht Treaty in Okeefe and Twomey (eds)’ Legal Issues ofthe Maastricht Treaty. (1994) p.53

[18] Ibid.13 p356

[19]Treaty of LisbonOJ C 306, 17.12.2007, C 306/12, art5 (3)-(4)

[20] Ibid.19

[21] Ibid.5

[22] Ibid.3 .4 and .5

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