Since the treaty of Maastricht, the principle of subsidiarity is part of the treaty on the European Communities (Article 5 TEC, formerly Art. 3b TEC). In the debate on the future of Europe, many people talk about this principle. But what is its content?

The origins of the principle are rooted in the catholic social ethics, elaborated in the second half of the 19Th century and laid down in the papal encyclica “Quadrigesimo anno” (1931). In short it says that things the individual can do himself, should not be transferred to society (prohibition of action). If the individual is not capable to solve certain problems, the society is obliged to give aid (obligation of help). At the state level, the principle is used for two different functions. Firstly it can regulate the exercise of existing competencies. Secondly it can be used as guideline for the allocation of competencies.
In the context of the European integration both functions can be found. Article 5 TEC refers to the exercise of the shared competencies. The European level can interfere only if the aims cannot be achieved by the Member states individually and that an action by the European Union guarantees more efficiency. Both conditions have to be fulfilled to legitimate an interference of EU.

Indeed this principle is more a political guideline than a juridical norm because of the soft formula. The ECJ had restrict himself on controlling the legal procedure. Consequently, the principle had no real effect for some reasons. The variety of interests resulting from the heterogeneity of the member states led to different answers on the question whether a European action is desired or not. In addition to this, the soft formula lacks clear criteria to interpret. Even the insertion of a special protocol of subsidiarity could not contribute to add better criteria. One can only admit, that the Commission has to give some regard to subsidiarity while using its right of initiative.

In the debate on the future of Europe the function to allocate competencies becomes more important. Therefore one have to insert more criteria, that allows a more precise evaluation of the necessity for transferring competencies to the European level. In this respect the impact on a certain number of member states, the effects of a national decision on the other member states and the proof of a better efficiency can be considered as possible new criteria.
Nevertheless the main problem still exists: the variety of interests due to the heterogeneity in Europe. With the enlargement this problem will increase. Therefore conflicts on the right application of the principle of subsidiarity will become more frequent. To encounter this a special body could be created, that assembles deputies from the European Parliament, the national parliament and in case of federal structure members of regional assemblies. Its task would be the settling of conflicts on competence.

Florian Ziegenbalg
Chair of the Political Commission on the Convention of JEF-Europe
mailto:florian.ziegenbalg@jef-europe.net