Subsidiarity in the European Union

Abstract

The increase in the number of international and transnational organisations and institutions (such as the EU, the WTO, and NATO) which govern many aspects of economic and political life results in an increase in the degree of alienation of individuals from the processes of governance affecting their lives. 'Political communities remain largely located at the national and sub-national level, even while an increasing number of the relevant decisions and policies which concern them directly are made outside the structures and processes of that political community. This has led to the introduction of subsidiarity in EU law, which was introduced in to curb centralisation and the ever growing powers of the Community at the expense of other political units such as national governments.' Subsidiarity is one of the most controversial and ambiguous principles of EU governance. Despite its undoubted importance, subsidiarity is, as the abundant literature on the subject demonstrates, 'a cloudy and ambiguous concept which is readily open to instrumental use. The principle is politically complex and legally uncertain.' The aim of this thesis is to try and delineate the principle of subsidiarity as employed in the Community chronologically. I will try to explain the meaning of this principle by going into the evolution of this principle from its introduction in the Maastricht Treaty to the final reformulation of it in the Constitution for Europe. Why has this principle gained so much importance these past thirteen years? Do we still need it? In Chapter 1 I will define the principle of subsidiarity and give a historical outline of the origin of this principle up to its insertion in the Treaty on the Europe Union (TEU). Chapter 2 will be specifically about subsidiarity in the Maastricht Treaty. I will explain what political background led to the inclusion of this principle. Why subsidiarity suddenly became so important in the Community's context during this period. Moreover, I will explain in detail the provisions on subsidiarity, namely Article A and Article 3b. I will also go in detail about the problem of competence which is directly linked to subsidiarity. In Chapter 3 I intend to show how subsidiarity has evolved in the Amsterdam Treaty. The same provision inserted in the Maastricht Treaty (Article 3b) was kept, however, a Protocol on the application of the principles of subsidiarity and proportionality was annexed to this Treaty. The reason for this Protocol was that following the incorporation of subsidiarity in the Maastricht, many questions regarding the practical implementation of this principle arose which needed to be answered. In this chapter I will focus on the Protocol on the Application of the Principles of Subsidiarity and Proportionality annexed to the Treaty of Amsterdam, which was signed in 1997 but came into force in 1999. Chapter 4 deals with subsidiarity in the post-Nice debate, the Declaration on the Future of Europe and the need to address the democratic deficit in the EU. The principle of subsidiarity is not touched upon as such in the Nice Treaty. The goal behind the Treaty of Nice was a much needed institutional reform to remove the obstacles to a prospective enlargement of twelve new Member States from eastern and southern Europe. I will not go into the details of this institutional reform though it is linked to the problem of subsidiarity issue which the Union faced from time to time. I will go through the reforms introduced to subsidiarity in the European Constitution, which is currently being ratified. The Constitution completes the process of reform in the Union and if and when the Treaty establishing a Constitution for Europe enters into force, it will repeal and replace all the current Treaties and Protocols of the Community. In Chapter 5, I will expand on the issue of justiciability of the subsidiarity principle by highlighting the role of the European Court and the actions which can be used to challenge a supposedly illegal action on the ground of subsidiarity. I will also go through the main case law where the principle of subsidiarity was evoked. Finally, Chapter 6 concludes this thesis by sketching the evolution of this principle in the EU and criticising it. Is there future for more reform as regards the principle of subsidiarity? I would like to specify the themes I will not be dealing with in this thesis: Democracy and legitimacy problems of the Community which led to the introduction of subsidiarity. • Institutional reform made effective so as decisions will be taken closer to the citizen, with special reference to the evolving powers of the European Parliament. • The development of voting procedures which over time may have increased or decreased subsidiarity. These three issues are directly related to the principle of subsidiarity but for reasons which space does not allow me to elaborate I could not develop them in detail so they are only referred to in this thesis.