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SUBSIDIARITY AFTER LISBON: REINFORCING THE SAFEGUARDS OF FEDERALISM?

Published online by Cambridge University Press:  16 December 2009

Robert Schütze
Affiliation:
Durham Law School.
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Copyright © Cambridge Law Journal and Contributors 2009

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References

1 J.H. von Kirchmann, Die Werthlosigkeit der Jurisprudenz als Wissenschaft (Berlin 1848), 23.

2 For an overview of the – abundant – literature, see R. Schütze, Form Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford 2009, forthcoming), chapter 5.

3 Oxford English Dictionary: “subsidiary” and “subsidiarity”.

4 The principle that responsibility should be gradually organised into ever larger social groupings had not been invented by the Catholic Church (cf. K. Endo, Subsidiarity and its Enemies: To what Extent is Sovereignty contested in the Mixed Commonwealth of Europe, EUI RCS Working Paper 2001/24 at 9). However, the idea of subsidiary social organisations re-emerged with the Encyclical “Rerum Novarum” (Of New Things, 1891) and – forty years later – in Quadragesimo Anno: Encyclical of the Pope Pius XI on Reconstruction of the Social Order, especially: paras.79–80. For an analysis of the application of the subsidiarity principle inside the Church, see J. Komonchak, “Subsidiarity in the Church: The State of the Question” (1988) 48 The Jurist 298.

5 On the German constitutional principle of subsidiarity, see J. Issensee, Subsidiaritätsprinzip und Verfassungsrecht (Berlin 2001).

6 Ibid., 333.

7 For a detailed textual genealogy of the subsidiarity principle in the European legal order, see R. Schütze, above n.2.

8 Protocol 30 on the Application of the Principles of Subsidiarity and Proportionality (1997).

9 Cass, D.Z., “The Word that Saves Maastricht? The Principle of Subsidiarity and the Division of Powers within the European Community” (1992) 29 Common Market Law Review 1107Google Scholar.

10 G. Berman, “Proportionality and Subsidiarity” in C. Barnard & J. Scott (eds.), The Law of the Single European Market: Unpacking the Premises (Oxford 2002), 75 at 86.

11 The idea of “political safeguards of federalism” was developed in the US American federal context, see Wechsler, H., “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government” (1954) 54 Columbia Law Review 543CrossRefGoogle Scholar. On the federal nature of the European Union, see Schütze, above n.2, chapter 1.

12 Amsterdam Protocol, Article 1.

13 Ibid., Article 4.

14 Ibid., Article 9.

15 Ibid., Article 11.

16 This view has had wide support from the academic side, see only: Berman, G., “Taking Subsidiarity Seriously: Federalism in the European Community and the United States” (1994) 94 Columbia Law Review 331 at 336CrossRefGoogle Scholar: “My basic view is that the Community should respond to this challenge by recasting subsidiarity from a jurisdictional principle (that is, a principle describing the allocation of substantive authority between the Community and the Member states) into an essentially procedural one (that is, a principle directing the legislative institutions of the Community to engage in a particular inquiry before concluding that action at the Community rather than Member State level is warranted.)”

17 Cf. (Amsterdam) Protocol No 9 on the Role of National Parliaments in the EU.

18 It had been suggested by various French political luminaries, but also by former Prime Minister Tony Blair and the former President of the Czech Republic, Vaclav Havel. For an overview of the various proposals for a second chamber, see House of Lords, Select Committee on European Union, Seventh Report (2001–02) (http://www.publications.parliament.uk/pa/ld200102/ldselect/ldeucom/48/4801.htm), paras.7–21.

19 Ibid., para.26.

20 For an affirmative answer, see van der Schyff, G. & Leenknegt, G-J., “The Case for a European Senate: a Model for the Representation of National Parliaments in the European Union” (2007) 62 Zeitschrift für öffentliches Recht 237 at 243 and 251CrossRefGoogle Scholar.

21 For an analysis of this point, see House of Lords, above n.18, paras.40 et seq. The House of Lords suggested that the Council should operate in a more transparent way. “Achieving greater accountability would significantly help reconnection of citizens with the institutions of Europe and provide important reassurance to the public about the working of their institutions.” “Our recommendation is accordingly that member States' governments should make every effort to ensure that they are fully accountable to their national parliaments both in being scrutinised on Council meetings in advance, and in reporting the outcome of Council meetings after the event.” (Ibid., para.62).

22 Andrew Duff (MEP) as quoted in ibid., para.59.

23 This has been the theme of reform proposals by the French Senate, cf. Rapport d'information au nom de la délégation du Sénat pour l'Union européenne sur une deuxieme chambre européenne No. 381 (http://www.senat.fr/rap/r00-381/r00-381.html).

24 The European Convention had ruled out the creation of a new institution to monitor the application of the principle of subsidiarity; cf. Conclusions of the Working Group IV on the Role of National Parliaments, CONV 353/02, 11: “The majority of the members of the Group recommended a “process based approach” for monitoring subsidiarity and proportionality by national parliaments and rejected the idea of creating new permanent or ad hoc bodies or institutions for this purpose.”

25 “That a consensus in favour of empowering national parliaments emerged in the Convention is not altogether surprising given that a majority of its full members, 56 out of 105, were representatives of national parliaments.” (Cf. Cooper, I., “The Watchdogs of Subsidiarity: National Parliaments and the Logic of Arguing in the EU” (2006) 44 Journal of Common Market Studies 281 at 288CrossRefGoogle Scholar).

26 Conclusions of the Working Group I on the Principle of Subsidiarity, CONV 286/02, 5. For a critical eye on the report, see the excellent analysis by Weatherill, S., “Using National Parliaments to improve Scrutiny of the limits of EU Action” (2003) 28 European Law Review 909 at 909–10Google Scholar: “The Working Group Report largely promoted an impression that the proper corrective to perceived problems in today's European Union is enhanced national “control” over the European institutions. This is troublingly backward-looking. ‘Nationalising’ the context in which EU decisions are taken may produce selfish State-centric outcomes which fail to pay heed to the need to adjust political decision-making in line with the growth of economic and social activities undertaken in the transnational domain. So greater involvement of national parliaments is not necessarily a virtue.”

27 Article 12 (b) of the (Lisbon) TEU.

28 Lisbon Protocol No.2 on the Application of the Principles of Subsidiarity and Proportionality.

29 Article 5 of the new Protocol states: “Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.”

30 I. Cooper, “The Watchdogs of Subsidiarity”, above n.25, at 281.

31 Article 7(1) of the Lisbon Protocol on the Application of the Principles of Subsidiarity and Proportionality.

32 Ibid., Article 7 (2). The threshold is lowered to a quarter for European laws in the area of freedom, security and justice.

33 Ibid., Article 7(3).

34 Ibid., Article 7 (3) (b): “if, by a majority of 55% of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration”.

35 For an analysis of this point, see Barrett, G., “‘The King is Dead, Long live the King’: the Recasting by the Treaty of Lisbon of the Provisions of the Constitutional Treaty concerning National Parliaments” (2008) 33 European Law Review 66 at 80–1Google Scholar. In the light of the voting threshold, “it seems fair to predict that blockade of legislative proposals under Article 7(2) is likely to be a highly exceptional and unusual situation”.

36 Thirty-third Report of House of Commons European Scrutiny Committee: Subsidiarity, National Parliaments and the Lisbon Treaty (http://www.parliament.the-stationery-office.com/pa/cm200708/cmselect/cmeuleg/563/563.pdf), para.35.

37 Dashwood, A., “The Relationship between the Member states and the European Union/Community” (2004) 41 Common Market Law Review 355 at 369Google Scholar.

38 S. Weatherill, above n.26 at 912.

39 On the concept and shortfalls of Politikverflechtung, see F. W. Scharpf, “The Joint-Decision Trap: Lessons from German Federalism and European Integration” (1988) 66 Public Administration 239.

40 Ibid., Article 13. See also Edinburgh European Council Conclusions, Annex 1: Overall Approach to the Application by the Council of the Subsidiarity Principle and Article 3b of the Treaty on European Union, Bulletin of the European Communities, 12-1992, 12 at 14: “The principle of subsidiarity cannot be regarded as having direct effect: however, interpretation of this principle, as well as review of compliance with it by the Community institutions are subject to control by the Court of Justice, as far as matters falling within the Treaty establishing the European Community are concerned.”

41 For an analysis of the jurisprudence of the European Court, see R. Schütze, above n.2.

42 Article 8 of the Lisbon Protocol on Subsidiarity and Proportionality: “The Court of Justice shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 163 of the Treaty on the Functioning of the European Union by Member states, or notified by them in accordance with their legal order on behalf of their national Parliaments or a chamber thereof.”

43 Conclusions of the Working Group I on the Principle of Subsidiarity, CONV 286/02 at 7 (emphasis added).

44 Jacqué, J.P. & Weiler, J.H.H., “On the Road to European Union – A new judicial Architecture: An Agenda for the Intergovernmental Conference” (1990) 27 Common Market Law Review 185 at 204–6Google Scholar.

45 Article 300(6) EC: “The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.”

46 J.H.H. Weiler, The Constitution of Europe (Cambridge 1999), 322.

47 Conclusions of the Working Group I on the Principle of Subsidiarity, CONV 286/02 at 9.

48 For an exception to the rule, see G. de Búrca, Reappraising Subsidiarity's Significance after Amsterdam, Harvard Jean Monnet Working Paper 1999/07.

49 On the concept of “family resemblance”, see L. Wittgenstein, Philosophical Investigations (Oxford 2001), §65–71.

50 On the origin of the concept, see J. Schwarze, European Administrative Law (London 2006), 678–9.

51 The principle of subsidiarity may also have a liberal dimension in the sense of protecting individuals or private groups from unnecessary public intervention. However, this liberal dimension of subsidiarity is not codified in Article 5 (2) EC.

52 G. Berman, Taking Subsidiarity Seriously, above n.16 at 403: “not only would the European not have found subsidiarity in the lexicon of US constitutional law, but they would not have found it to be a central feature of US constitutional practice”.

53 Gregory v. Ashcroft, 501 US 452 (1991), 464 (quoting L. H. Tribe).

54 The Supreme Court has found a presumption against pre-emption in areas of traditional State police powers. For an analysis of this case law, see R. Schütze, above n.2, chapter 2.

55 Young, E.A., “Two Cheers for Process Federalism” (2001) 46 Villanova Law Review 1349 at 1387–8Google Scholar.

56 Young, E.A., “Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism” (2002) 77 New York University Law Review 1612 at 1717Google Scholar: “[T]he introduction of the principle of subsidiarity into the EU treaties at Maastricht provides substantial support for a shift in interpretive principles. If anything, the underlying legal texts offer firmer support for an interpretative ‘presumption against preemption’ in the EU than exists in the United States.”

57 Ibid., 1652.

58 Above n.54.

59 The co-existence of two or more judicial review standards is well-established in American constitutional law, see United States v. Caroline Products, 304 US 144 (1938), 152 fn.4 (1938). This is perhaps the most famous footnote in American constitutional law.

60 Article 5 (2) EC.

61 On this point, see Schütze, R., “On ‘Federal Ground’: The European Union as an (Inter)national Phenomenon” (2009) 46 Common Market Law Review 1069 at 1099–1102Google Scholar.

62 On the nature of these competences in the European legal order, see R. Schütze, above n.2.

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