Subsidiarity (European Union)

In the European Union, the principle of subsidiarity is the principle that decisions are retained by Member States if the intervention of the European Union is not necessary. The European Union should take action collectively only when Member States’ power is insufficient. The principle of subsidiarity applied to the European Union can be summarised as "Europe where necessary, national where possible".[1]

The principle of subsidiarity is premised from the fundamental EU principle of conferral, ensuring that the European Union is a union of member states and competences are voluntarily conferred to Member States. The conferral principle also guarantees the principle of proportionality, establishing that the European Union should undertake only the minimum necessary actions.

The principle of subsidiarity is one of the core principles of the European law,[2] and is especially important to the European intergovernmentalist school of thought.

EU recognition of the principle of subsidiarity

The term “principle of subsidiarity”[3] was not referred to in the first European texts. It is mentioned for the first time in 1992 in the Treaty establishing the European Community (TEC) as amended by the Maastricht Treaty. The Article 3b states:“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 in so far 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” [4]

The Treaty on the European Union (TEU), also written in 1992, states: “decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity.”[5]

In 1997, the Treaty of Amsterdam proposes a Protocol on the principles of subsidiarity and proportionality establishing the conditions of application of both principles. It is established that the Union wishes that “decisions are taken as closely as possible to the citizens of the Union” and that “the overall approach to the application of the subsidiarity principle (…) will continue to guide the actions of the Union’s institutions as well as the development of the application of the principle of subsidiarity”.[6]

The Treaty of Lisbon places in 2007 the principle of subsidiarity as one of the fundamental principles of the European Union. The article 3b states: “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality”.[7] Since the Lisbon Treaty came into force at the end of 2009, national Parliaments have a role in policing the principle of subsidiarity. Under the so-called Early Warning System, they can submit reasoned opinions if they feel a new Commission proposal violates the subsidiarity principle (van Gruisen and Huysmans, 2020).[8]

The principle of subsidiarity in EU governance

The unprecedented development of subsidiarity in the European Union in the 1990s was caused by the increased of EU policies in the post-Maastricht period. In the 1990s, the European Union was preparing for the future enlargement of Central and Eastern European Countries (CEECs) as well as for the establishment of the Eurozone, and therefore needed to reinforce its task-allocation model. This model, called EU competences, is subject to the two fundamental principles of subsidiarity and proportionality.[9]

EU competences

There are 3 competences in the European Union governance:

  • exclusive competence: the European Union alone is able to legislate and adopt binding acts. Therefore, the principle of subsidiarity does not apply to this set.
  • shared competence: the European Union and the Member States are able to legislate and adopt binding acts. When the union does not exercise its own competence, or refuse to, the Member States exercise their own competence.
  • supporting competence: the European Union can legislate and adopt binding acts only to support, coordinate or complement the actions of Member States. Legally binding acts must require the harmonisation of the Member States.
Competences of the European Union in relation to those of its member states[10]
Exclusive competence
Shared competence
Supporting competence
The Union has exclusive competence to make directives and conclude international agreements when provided for in a Union legislative act as to …
Member States cannot exercise competence in areas where the Union has done so, that is …
Union exercise of competence shall not result in Member States being prevented from exercising theirs in …
  • research, technological development and (outer) space
  • development cooperation, humanitarian aid
The Union coordinates Member States policies or implements supplemental to their common policies not covered elsewhere in …
The Union can carry out actions to support, coordinate or supplement Member States' actions in …
  • the protection and improvement of human health
  • industry
  • culture
  • tourism
  • education, youth, sport and vocational training
  • civil protection (disaster prevention)
  • administrative cooperation

The principle of subsidiarity guarantees that in the area of non-exclusive competences, the Union may act only if an action cannot be sufficiently achieved at the Member States level, and could be better achieved at the Union level.

Federalist v. Intergovernmentalist school of thoughts

Since its inception, the European Community, then becoming the European Union, has faced the remarks and critics of two main school of thoughts: the federalists, defending a centralised decision-making model, and the intergovernmentalists, in favour of a broader share of competences.

On one side, the federalist school is in favour of more supranational decisions. For them, most of the decisions should be taken at a central level, by the Union, in order to improve the efficiency of decision-making, enjoy scale economies and avoid negative spillovers issued from local decisions.[11] The fiscal federalism theory therefore perceives the principle of subsidiarity as a guarantee that the decisions will be taken at central level when there would demonstrable benefits of conducting the policy by the Union.

On the other side, the school of intergovernmentalism defends a decentralized model and more decisions taken by Member States, with a process in which the local knowledge enables to take the most adapted decisions and the citizens can express their disagreement by direct contact with the politicians or leaving the region (Voice or Exit principle).[11] For the intergovernmentalist theory, the principle of subsidiarity guarantees that decisions will be taken as closely as possible to citizens, and therefore at the lowest level possible.

The EU principle of subsidiarity is seen by the literature as sufficiently unbounded to satisfy both school of thoughts and approach to centralization (Golub, 1996; Teasdale, 1993; van Kersbergen and Verbeek, 1994).[12]

The principle of subsidiarity in EU environment policy

EU environmental policy

The Paris Summit in 1972 announced the development of an Environmental Action Programme.[13] This European initiative demonstrated the European Economic Community's endorsement in environmental policymaking by defining medium and long-term goals and actions. Historically the task-allocation model of the EU environmental policy has been widely criticised,[12] pointing out the lack of European coordination being an obstacle to the decision-making. Therefore, the European Union increased progressively its power over the years, mainly by a series of amendments to the Treaty of Rome and the increase of its EU bodies's influence over individual Member States.[14]

The EU environmental policy is a shared competence between the Union and Member States: the Member States are able to exercise their competence only if the Union has not already exercised its competence.

EU ordinary legislative procedure

Based on the ordinary legislative procedure, the EU Council (formed of the leaders of the 28 Member States) can propose suggestions of environmental legislation to the European Commission, who has the exclusive right to propose new environmental policies to the European Parliament (directly elected body) and the Council of the EU (made of Member States' environment Ministers). After they received the proposal, the European Parliament and the Council of the EU follow the co-decision procedure and review the proposal; they can either reject, amend or approve the proposal. If approved, the European Commission has the responsibility to ensure the implementation of the environmental legislation by Member States.[15]

European Environment Agency

The European Environment Agency (EEA) was created in 1994 and is a European agency providing information on the environment. Its headquarter is located in Copenhagen (Denmark). Its management board is made of representatives of 33 states (the 28 European Union member states together with Iceland, Liechtenstein, Norway, Switzerland and Turkey), a representative of the European Commission and scientists appointed by the European Parliament.

The EEA helps the EU institutional bodies in the development, implementation and evaluation of the EU environmental policy, but does not have any competence in the legislation and adoption of binding acts in this field.

References
  1. European Social Fund, Netherlands (24 January 2017). "Subsidiarity and proportionality HLG on Simplification" (PDF). Cite journal requires |journal= (help)
  2. BALDWIN R., WYPLOSZ C. The Economic of European Integration. London: Mc Graw Hill Education. pp. 73–75.
  3. "Principle of subsidiarity". Europa.
  4. Treaty establishing the European Community, Official Journal of the European Communities, No C224/6, 31.08.1992
  5. Treaty on European Union, Official Journal of the European Communities, No C191/1, 29.07.1992
  6. Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts, Official Journal of the European Communities, C 340/1, 10.11.1997
  7. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Official Journal of the European Union, C306, Vol 50, ISSN 1725-2423, 17.12.2007
  8. https://journals.sagepub.com/doi/abs/10.1177/1465116520923752 van Gruisen P. & Huysmans M., The Early Warning System and policymaking in the European Union, European Union Politics, doi: 10.1177/1465116520923752
  9. "EUR-Lex - ai0020 - EN - EUR-Lex". eur-lex.europa.eu. Retrieved 2019-11-01. Content is copied from this source, which is © European Union, 1995-2018. Reuse is authorised, provided the source is acknowledged.
  10. As outlined in Title I of Part I of the consolidated Treaty on the Functioning of the European Union
  11. BALDWIN R., WYPLOSZ C. The Economic of European Integration. London: Mc Graw Hill Education. pp. 77–80.
  12. "Download Limit Exceeded". citeseerx.ist.psu.edu. Retrieved 2019-11-01.
  13. "Environment Action Programmes". Bundesministerium für Umwelt, Naturschutz und nukleare Sicherheit (in German). Retrieved 2019-11-01.
  14. Adelle, C., Jordan, A., and Turnpenny, J. (2012). Environmental Policy in the European Union: Contexts, Actors and Policy Dynamics. London and Sterling: Earthscan.CS1 maint: multiple names: authors list (link)
  15. SELIN H., VANDEVEER S. (2015). "EU Environmental Policy Making and Implementation: Changing Processes and Mixed Outcomes". Annual Review of Environment and Resources.
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