8/6/2019 Subsidiarity in EU Law

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 SubsidiaritySubsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralizedcompetent authority. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have asubsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level.The concept is applicable in the fields of government, political science, cybernetics and management. Subsidiarity is, ideallyor in principle, one of the features of federalism.

The word subsidiarity is derived from the Latin word subsidiarius and has its origins in Catholic social teaching. The conceptor principle is found in several constitutions around the world (see for example the Tenth Amendment to the United StatesConstitution).

It is presently best known as a fundamental principle of European Union law. According to this principle, the EU may onlyact (i.e. make laws) where member states agree that action of individual countries is insufficient. The principle wasestablished in the 1992 Treaty of Maastricht, and is contained within the proposed new Treaty establishing a constitution forEurope. However, at the local level it was already a key element of the European Charter of Local Self-Government, aninstrument of the Council of Europe promulgated in 1985 (see Article 4, Paragraph 3 of the Charter)

European Union lawSubsidiarity was established in EU law by the Treaty of Maastricht, signed on 7 February 1992 and entered into force on 1November 1993. The present formulation is contained in Article 5 of the Treaty Establishing the European Community(consolidated version following the Treaty of Nice, which entered into force on 1 February 2003):

The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectivesassigned to it therein.

In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with theprinciple of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achievedby the Member States and can therefore, by reason of the scale or effects of the proposed action, be better

achieved by the Community.

Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.

A more descriptive analysis of the principle can be found in Protocol 30 to the EC Treaty.

Article 9 of the proposed European constitution states

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act onlyif and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either atcentral level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, bebetter achieved at Union level.

Formally, the principle of subsidiarity applies to those areas where the Community does not have exclusive competence, theprinciple delineating those areas where the Community should and should not act. In practice, the concept is frequentlyused in a more informal manner in discussions as to which competences should be given to the Community, and whichretained for the Member States alone.

The concept of subsidiarity therefore has both a legal and a political dimension. Consequently, there are varying views as to

its legal and political consequences, and various criteria are put forward explaining the content of the principle. For example:

•  The action must be necessary because actions of individuals or member-state governments alone will notachieve the objectives of the action (the sufficiency criterion)

•  The action must bring added value over and above what could be achieved by individual or member-stategovernment action alone (the benefit criterion)

•  Decisions should be taken as closely as possible to the citizen (the close to the citizen criterion)

•  The action should secure greater freedoms for the individual (the autonomy criterion).

The European Union, however, has as part of its phraseology a call for "an ever-closer union." What restraints upon the

progress of centralised decision making would be brought about by strict reference to the principle of subsidiarity have yet tobe proven by major constitutional clashes.