The Principle of Subsidiarity
The development of the principle of subsidiarity: from the SEA to the ToL
The principle of subsidiarity was implicit in Article 235 of the EC Treaty concerning the extension of competences of the Community. The SEA introduced it explicitly in relation to the protection of the environment.
Article 130R (4) of the EC Treaty stated that the Community shall intervene in environmental matters “. . . to the extent to which the objectives referred to in paragraph 1 can not be attained better . . . at the level of the individual Member States”.
For the first time, the principle of subsidiarity was expressly mentioned in the Treaty of Maastricht, i.e. in its Preamble, Articles A and B and in Article 5 EC. Its meaning, however, given its elusive nature and its political and legal connotations, was highly disputed. In order to clarify its meaning under EC law, the Lisbon European Council (June 1992)142 asked each of the Commission and the Council to prepare a report on the procedural and practical steps needed to implement subsidiarity. The Edinburgh European Council (December 1992), on the basis of both of these reports and of other documents such as a draft Inter-Institutional Agreement on the Application of Article 5 EC submitted by the EP and a report from the president of the Commission regarding the Commission’s review of existing and proposed legislation in the light of the principle of subsidiarity, adopted guidelines regarding the practical and procedural implications deriving from the principle of subsidiarity for EC institutions. Given the obvious link between the principle of subsidiarity and the principle of proportionality, the guidelines summarised and explained the procedural and practical steps necessary for implementation of both principles by the Community institutions.
The guidelines discussed above were incorporated into a Protocol on the Application of the Principles of Subsidiarity and Proportionality, which Protocol was annexed to the ToA. In the light of the fact that protocols annexed to a Treaty form an integral part of that Treaty, the Protocol conferred binding character on the principles of subsidiarity and proportionality and thus they have become subject to judicial review. The Protocol was complemented by the 1993 Inter-Institutional Agreement on Procedures for Implementing the Principle of Subsidiarity143 between the Council, the EP, and the Commission, requiring these institutions to respect the principle of subsidiarity and to take concrete steps to implement it.
The Protocol set out three guidelines for the adoption of Community measures which will satisfy the requirement of subsidiarity at the EC level:
- The matter under consideration must have transnational aspects that cannot be properly regulated by an action taken by a Member State and requires a Community action;
- An action taken by a Member State alone, or an absence of a Community action, would conflict with the objectives of the EC Treaty;
- An action taken by the Community would produce clear benefits by reason of its scale or effects as compared with an action taken by an individual Member State.
- The Protocol was based on the Edinburgh Conclusions144 and confirmed the existing Community approach to the application of subsidiarity.
The requirements of the principle of subsidiarity have been accommodated by the new
approach to EU patterns of governance introduced by the open method of co-ordination (OMC) created in the late 1990s. The 2000 Lisbon Council endorsed this method as being appropriate to help the Member States to develop national policies with a view to achieving the ambitious Lisbon Agenda that is making the EU the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion by 2010.
According to the European Council this method involves:
- Fixing guidelines for the Union combined with specific timetables for achieving the goals which they set in the short, medium and long terms;
- Establishing, where appropriate, quantitative and qualitative indicators, and benchmarks against the best in the world and tailored to the needs of different Member States and sectors as a means of comparing best practice;
- Translating these European guidelines into national and regional policies by setting specific targets and adopting measures, taking into account national and regional differences;
- Periodic monitoring, evaluation, and peer review organised as mutual learning processes.145
At the first glance it may seem that the OMC is similar to the procedures developed with regard to EU “soft law”.146 However, the similarity is illusory.
The OMC is different from the pre-OMC soft law procedures and contents for the following reasons:
1. The OMC focuses on inter-governmental co-operation whereby the Council and the Commission determine the development and the content of the OMC and the ECJ has no input. Under the pre-OMC “soft law”, the approach was supranational as the ECJ and the Commission determined its content. Due to recognition of “soft law” by the ECJ, it has become a source of Community law and has been included in the EU acquis.
2. Under the OMC the policy formulation and monitoring takes place at the highest political level (the Council and the European Council) while the monitoring of pre-OMC “soft law” was done through the peer review process at an administrative level, often on an ad hoc basis.
3. Pre-OMC soft law was used at random in relation to a particular policy area. The OMC is used systematically in relation to all policy areas with a view to achieving a common objective. It links not only national policies with each other and different Community policies one to the other but also national policies with Community policies. As S. Borrás and K. Jacobsson pointed out, the OMC provides: “The possibility for truly bottom-up political dynamics, which differ from the top-down structures of the previous lawmaking.” 147
4. The OMC is not confined to Member States but seeks the participation of all stakeholders, private and public. This was not the case of pre-OMC soft law as it did not seek the participation of social partners.
5. The OMC emphasises the mutual learning process through co-operation, exchange of knowledge and experiences. The pre-OMC soft law had no such objective.
142. EC Bull. 6/1992, point 8.
143. Its text in Europe, Documents, No. 1857, November 1993, p 44.
144. Overall Approach to the Application by the Council of the Subsidiarity Principle and Article 3b of the Treaty on European Union. Conclusion of the European Council, Edinburgh, December 1992, Annex 2 to Part A.
145. Presidency Conclusions, p 37, available at http://www.europarl.europa.eu/summits/lis1_en.htm#d (accessed October 29, 2013).
146. The term “soft law” has been used in public international law to describe international instruments which have no binding legal effects such as UN General Assembly resolutions and declarations, non-binding statements made by governments, codes of conduct issued by international organisations, etc. Under EU law “soft law” describes EU measures which have no binding legal force or whose binding legal force is less than absolute. These are recommendations, opinions, codes of conduct, guidelines, action plans, notices, collective recommendations, review and monitoring and benchmarking, etc. Soft law as opposed to “hard law” (i.e. binding rules) is seen as an attractive option for achieving specific objectives without being too heavy-handed.
147. S Borrás and K Jacobsson, “The Open Method of Co-ordination and New Governance Patterns in the EU”, (2004) 11/2 Journal of European Public Policy, p 185, at 189.
