The principle of subsidiarity and its context
Many people think that the “principle of subsidiarity and its context” is a dry and almost theoretical subject. Let us try to show that the principle of subsidiarity is in fact a central theme of our European concept of man and our understanding of living together in the European Union.
Historical background of the idea
The idea of subsidiarity existed long before the European Union.
In fact, the principle of subsidiarity was developed out of Christian social teaching, in particular to emphasise personal responsibility and the dignity of the individual. At the time, the principle of subsidiarity was revolutionary because it challenged the omnipotent order of the authoritarian, often monarchical state. On the other hand, without personal responsibility there is also no personal guilt or merit, which does not fit into the Judeo-Christian worldview.
In modern times, the principle of subsidiarity was formulated by Pope Pius XI against orders in state and society that did not support the individual but patronised him. Subsidiarity was thus also a counter-proposal to the already established communism in Russia, to fascism in Italy and to the rise of National Socialism in Germany with its völkisch world of ideas, which propagated the superiority of the people in an ethnic sense over other peoples as well as over the individual.
Background and European context
When speaking of subsidiarity or subsidiary at the European level, it is important to remember that the meaning and application of these terms have different, sometimes even contradictory meanings in the various European languages. This is how opposing situations are linked. In Romance-speaking countries such as Italian or French, “subsidiarity” has a meaning more akin to secondary or subordinate, whereas in German-speaking countries “subsidiarity” is the basis of federalism. The term “federalism”, on the other hand, has a positive connotation in German-speaking countries, but an opposite meaning in English-speaking countries, where it is more associated with centralisation.
Against this background, it is not surprising that dealing with the issue of subsidiarity at the European level is so difficult and has not yet managed to be binding. The conference on the future of Europe at the level of the institutions will have to find a common language that will have a positive impact in the Council and the Committee of the Regions.
The principle of subsidiarity, enshrined in Article 5 (Article 3b)(2) of the EC Treaty, distinguishes only between the Member State level and the Community level when it comes to the question of who is competent to exercise a competence.
Now the fact that “…in accordance with the principle of subsidiarity, action by the European Community shall concern not only the Member States but also their regional and local authorities in so far as they have legislative powers of their own under national constitutional law” was clearly expressed in the subsidiarity declaration of Germany, Austria and Belgium, which was noted at the Amsterdam Summit at the insistence of Flanders. It is not surprising that these are federally organised member states and that all three belong to the German (or German-Flemish) language area. It is also not surprising that the aforementioned states had to make a specific joint declaration, while the demand was not supported by the other member states.
Another point is the constitutional and domestic political situation in the other EU Member States.
The above-mentioned federally organised member states are suspected of disregarding the subsidiarity principle of self-organisation of other EU member states, such as Italy (South Tyrol), Spain (Catalonia and the Basque Country).
In its current definition, subsidiarity means that public tasks should be regulated as close to the citizens as possible – for example, at the municipal or state level. Only if a certain problem cannot be solved at this level should regulatory competence be shifted “upwards”.
However, both in Germany and in Europe, the instruments to decide when a task should be transferred are generally lacking, since it is not defined when a solution is no longer provided or can no longer be provided by the lower level. –
For example, when protection against epidemics, the general interest of the enlarged community or the equal living conditions to be achieved require intervention at the regional, federal or European level in order to reach the next higher level. (Belgium has drawn clearer lines in this respect and demonstrates this through the representation of the Member State of Belgium by the regions in the European Councils).
Article 5 of the EC Treaty states that “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community”.
In assessing whether the measures “cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved at Community level”, it must not be disregarded that the capacity to solve problems varies within Germany, between the Länder and between the Member States of the European Union. (So as not to offend any federal state, I am not asking who can build airports on time or who can finance an above-average number of top universities and at the same time have a balanced budget).
The subsidiarity principle – basic principle
For every legislative initiative, the European Commission must prove that it can solve the task in question better than the regions or the member states, and it also justifies this in the proposals it submits at the request of the member states.
Since the concept of subsidiarity cannot be clearly defined at the European level (see above), the European Union resorts to the instrument of the extended impact assessment of its measures, which is anchored in several places in the Treaty of Lisbon. For example, in its work programme for 2021, the European Commission has provided for an impact assessment for every planned legislative proposal, which also includes an examination of possible encroachments on existing competences.
All too often it is forgotten that the Commission sends proposals to the Member States and the European Parliament, which then decide whether or not to adopt them.
The Treaty of Amsterdam contains legally binding clarifications on the application of the subsidiarity principle in the “Protocol on Subsidiarity”. For European Union action to be justified, two conditions must be met:
– The objectives of the action cannot be sufficiently achieved by the Member States.
– The objectives can therefore be better achieved by Community action. The Commission must therefore justify whether these conditions are met. At the same time, it is made clear that European Union action must leave as much room as possible for the Member States.
The principle of subsidiarity guarantees a subordinate authority a certain degree of independence from a superior authority or a local authority from central power. It is therefore a division of competences between different levels of power, a principle that forms the institutional basis of federal states.
Applied in the context of the Community, the principle of subsidiarity means that the Member States retain the powers they can exercise most effectively themselves and that the Community is entrusted with those powers that the Member States cannot exercise satisfactorily.
The principle of subsidiarity applies only to areas shared between the Community and the Member States. It therefore does not apply to exclusive Community competences or exclusively national competences. However, the demarcation is blurred, as the areas of Community competence can be extended, for example, by Article 308 (235) of the EC Treaty, if Community action appears necessary to achieve the objectives of the Treaty.
Treaty of Amsterdam
Without changing the wording of the subsidiarity rule in Article 5 (Article 3b)(2) of the EC Treaty, the Treaty of Amsterdam inserted the “Protocol on the application of the principles of subsidiarity and proportionality” into the enacting terms of the EU Treaty.
Who are the addressees of the subsidiarity principle?
The subsidiarity principle is addressed to all institutions of the Union. In practice, it is of particular importance in the context of legislative procedures. The Treaty of Lisbon has strengthened the respective roles of national parliaments and the Court of Justice in monitoring compliance with the subsidiarity principle. The Lisbon Treaty not only explicitly referred to the sub-national dimension of the subsidiarity principle, but also strengthened the role of the Committee of the Regions and gave national parliaments the possibility to include regional parliaments with legislative powers in the “early warning system”.
Control of EU institutions by national parliaments (“early warning system”).
Under the provisions of the Lisbon Treaty, national parliaments monitor compliance with the principle of subsidiarity in accordance with the procedure laid down in Protocol No. 2. Thus, and this cannot be emphasised enough, the national parliaments monitor not only the European Commission, but also the Council and the European Parliament.
Under this procedure (“early warning system”), national parliaments or the chambers of one of these parliaments may, within eight weeks of the transmission of a draft legislative act, send a reasoned opinion to the Presidents of the European Parliament, the Council and the Commission explaining why they consider the draft to be incompatible with the principle of subsidiarity. If the number of reasoned opinions of the national parliaments reaches at least one third (one vote per chamber in the case of bicameral parliaments and two votes in the case of unicameral parliaments), the draft must be reconsidered (“yellow card”).
The institution that drafted the legislative act can decide whether to keep it, amend it or withdraw it, and this decision must be justified. For provisions falling within the scope of police and judicial cooperation in criminal matters, the lower threshold is one quarter of the votes. If, in the ordinary legislative procedure, at least a simple majority of the votes of all national parliaments contest the compatibility of a legislative proposal with the principle of subsidiarity and the Commission decides to maintain its proposal, it is submitted to the legislator (European Parliament and Council), which decides on it at first reading. If the legislator considers that the legislative proposal is not compatible with the principle of subsidiarity, it can reject it by a majority of 55% of the members of the Council or a majority of the votes cast in the European Parliament (“orange card”).
The early warning system in practice
The “yellow card” procedure has been triggered only three times so far, while the “orange card” procedure has never been used. In May 2012, a “yellow card” was issued for the first time for a Commission proposal for a regulation on the exercise of the right to take collective action in relation to the freedom of establishment and the freedom to provide services. Twelve of the 40 national parliaments or chambers of these parliaments considered that the content of the proposal was not compatible with the principle of subsidiarity. The Commission eventually withdrew its proposal, but still considered that there was no breach of the subsidiarity principle.
In October 2013, 14 national parliamentary chambers in 11 Member States gave the proposal for a Regulation establishing a European Public Prosecutor’s Office another “yellow card”. After evaluating the reasoned opinions of the national parliaments, the Commission decided to maintain the proposal on the grounds that it was compatible with the principle of subsidiarity. A third “yellow card” was finally issued in May 2016 by 14 chambers in 11 member states for the proposal to revise the Posting of Workers Directive. The Commission provided a detailed justification for maintaining its proposal, arguing that the posting of workers is by definition a cross-border situation and therefore does not violate the subsidiarity principle. Judicial review Compliance with the subsidiarity principle can be reviewed retrospectively, after the legislative act has been adopted, by bringing an action before the Court of Justice of the European Union. This is also provided for in the Protocol. However, the institutions of the Union have a wide margin of discretion in applying this principle. They may, on behalf of their national parliament or one of its chambers, in accordance with their legal system, bring an action for annulment before the Court of Justice against a legislative act for infringement of the principle of subsidiarity. The Committee of the Regions may also initiate such legal proceedings against legislative acts if the TFEU provides for such consultation. The role of the European Parliament The concept of subsidiarity was proposed by the European Parliament, which suggested a provision to this effect when it adopted the draft Treaty on European Union in 1984. In cases where the Treaty confers on the Union a competence which competes with that of the Member States, the Member States should be able to act where the Union has not taken regulatory action. The proposal also stressed that the Union should only take on tasks that can be carried out more effectively together than by states acting separately.
The European Parliament has taken a number of measures to play its role in applying the principle of subsidiarity within the framework of the Treaties. The EP’s Legal Affairs Committee regularly prepares a commentary report on the annual reports on subsidiarity and proportionality prepared by the Commission. The Council, the Parliament and the Commission signed an Interinstitutional Agreement in 1993 which clearly expresses the will of the three institutions to act decisively in this area. In doing so, they commit themselves to respecting the principle of subsidiarity. This agreement specifies, by means of procedures for applying the principle of subsidiarity, the arrangements for exercising the powers conferred by the Treaties on the institutions of the Union to enable them to attain the objectives laid down in the Treaties. The Commission has undertaken to take account of the principle of subsidiarity and to justify and explain its compliance with it. The same applies to the Parliament and the Council within the framework of the competences conferred on them. Concluding remark We see that the critics of the European Union may have been right in the past. But that is not enough. The European Union, that is, all of us, have learned. President Kennedy had a wisdom that I would like to apply to the European Union, he said in the face of great challenges: You cannot beat several brains working together. Fortunately, the European Union is a very diverse cooperation, made up of many peoples, cultures and languages. Not to overrun anyone takes time. But then the solution is thoughtful and diverse. As President John F. Kennedy liked to remind us in the face of extraordinary and complex challenges, “You can’t beat brains!” (You can’t beat brains that work together) TH