Right before the Europeans started packing for their annual holiday, the Dutch government proposed its ‘subsidiarity review’ in June. This review contained a collection of 54 points and policy areas on which the Dutch believe the EU should show more restraint. It is compiled with input from all government ministries and other institutional stakeholders. It states that the European Commission is not supposed to have a greater say over topics concerning criminal law, social security or pensions, and that the Commission should set broad objectives, but leave its implementation to the European member states. Where does this resort to subsidiarity come from? And in what way does a focus on subsidiarity matter? This article will explore the principle of subsidiarity, discuss its shortcomings and underline its potential.
Subsidiarity, come again?
Louis XIV is credited with saying: “L’Etat, c’est moi” (I am the State). And while the French monarch must have been thinking more about his one-dimensional autocratic rule than of the European Union, the sentence lingers when we think of the principle of subsidiarity. Unless politics and decisions have a meaning for the citizen, and are taken at the closest level possible to the citizen, they have little meaning anywhere.
The debate around the principle of subsidiarity has its roots in the dual notion that the word subsidiarity entails. It essentially covers two elements: a political philosophy, or rather a general principle of political conduct, as well as a tangible element of European law. As a general principle, it is based on the logic that a higher public authority should not intrude on national, regional and local political and cultural identities. It argues that authorities should only intervene when a proposed action by civil society for the greater good cannot be achieved without its intervention. It also requires that the larger public authorities only intervene when the objects of a measure can, by reason of its scale or effects, be better achieved at a higher level of public authority.
As a distinct element of European law, it is enshrined in the Protocol on the Application of the Principles of Subsidiarity and Proportionality and is set out in Article 5 of the Treaty of the European Union. The principle states that the EU should only act if the objectives of a proposed action cannot be sufficiently achieved by the Member States. In the case of the EU, this means: would one central measure be better than 28 different measures? (Chalmers, Davies & Monti, 2010). There is one important question that lies at the heart of the subsidiarity issue: does not intervening until necessary also imply a responsibility, or even an obligation for the EU to intervene when the goals for the common good are not achieved?
A problematic assumption in theory…
Just like the principle of subsidiarity entails both a philosophical element and a more practical legal element, its problems also hinge on two elements. Firstly that subsidiarity as a general principle contains the problematic notion of the ‘greater good’ that somehow exists and is shared by multiple entities. If the higher public authority can only (and possible should) intervene when a lower public authority fails in effectively pursuing a certain goal or policy objective, it is assumed that both entities are striving to realize the same goal, which is supposed to be ‘good’ for the whole of the Union. As the former French Senator Christian de la Malène argued in his report on the application of the subsidiarity principle, one can question whether this notion of the common good goes against our shared principles of a modern, pluralist democracy, wherein multiple legitimate conceptions of what is ‘good’ for society can coexist. Moreover, who defines when an action by the EU is legitimate in the light of the subsidiarity principle? This should be the role of national parliaments. Unfortunately they often fall short. An explanation could be the limited timeframe they have to intervene (6-8 weeks) as well as a lack of knowledge about what is happening at the European level.
..and in practice.
When we look at subsidiarity as a legal principle, the above point becomes somewhat less problematic. This because the goals of the European Union are also defined in the Treaties, and therefore the ‘common good’ is less central in its application. Nevertheless, problems persist: who decides whether an action is sufficiently achieved? And who decides upon whether a certain proposed action is desirable? This becomes especially problematic when it comes to the more vague and ambitious goals of the EU. For example: article 191 of the Treaty on the Functioning of the European Union (TFEU) states that the Union should pursue “prudent and rational utilization of natural resources”. Who decides upon what is prudent and rational? And when does a lower level of government not achieve this goal? The same applies to other vague goals such as the “flowering of the cultures of the Member States” (art. 167 TFEU), or the Union’s contribution to “to protecting the health, safety and economic interests of consumers” (art. 169 TFEU).
Now let's return to where we started. What the Dutch government wants is to refocus on this principle of subsidiarity as being a guiding principle in EU policymaking. The slogan the government uses is “European when necessary, national when possible”.
And although, as Rem Korteweg of the Centre for European Reform in London argues, the Dutch proposals are not very far-reaching and mainly concern rules governing air quality and school milk, the review underlines once again that Euro-skepticism is not over just yet. Aside from sending a serious and topical message to the Commission, it also represents the need of the Dutch government to give in to the anti-European sentiments and to respond to the creeping return of the far-right Freedom Party of Geert Wilders. To steal the thunder of the latter’s anti-European rhetoric, the Dutch Prime Minister Mark Rutte stated: “the time of an ever closer union in all policy areas is over”. The principle of subsidiarity should be at the heart of European decision-making, is the Dutch statement.
The Dutch initiative was welcomed by countries such as Germany, Sweden, Finland and Austria. Some of these countries are even considering a similar exercise. The UK is currently working on a balance of competences review to find out “what is right at the European level and what is right at national level”, as said David Cameron.
It should be clear that the Netherlands is not aiming at a treaty change or extra opt-outs, but at an “inclusive process to revise existing legislation and reach political agreement on future priorities for legislation”. In its explanatory notes, the Dutch government states that “European integration is a step-by-step process, in which a decision to take action at EU level is made only if this is necessary and/or if it is in the interest of the participating countries – that goes for tackling the financial and economic crisis, but also for various policy areas such as energy, climate, asylum and migration and the completion of the single market.” Expanding the scope of European policy should not become a goal in itself. And this is where the two main problems of subsidiarity – the implicit assumption of ‘a greater common good’ and the vagueness to determine when objectives are sufficiently achieved – pop up. Euroskeptics in the Netherlands and in other European countries alike often argue that the European Union has creeping competences over areas that they would like to keep within the national domain. They call for less European policies and as much national legislation as possible; and feel that the European institutions are intruding in the national policy-making processes.
The case for strengthening subsidiarity – and more parliamentary involvement
The subsidiarity principle, in sum, contains three basic problems. Firstly, it implies a notion of the ‘greater common good’ that lower public entities and higher public entities should strive after. Secondly, the principle is drafted in such a way in the Treaties that it is subordinate to the European Union’s objectives. These objectives are often extremely vague and open to interpretation. Thirdly, it is not clear when certain objectives are ‘sufficiently achieved’ at a lower level, and thus it is not clear when the EU should intervene and to what extent. It is thus somewhat surprising that it is exactly this ambiguous and malleable principle of subsidiarity that euroskeptics mention when they talk about strengthening national powers. Meanwhile, it is with the subsidiarity principle that a greater European consensus could start. Ensuring the respect of subsidiarity should justify any European action, and subsidiarity control should thus be enforced. It is this last part where national parliaments should play a bigger role, as mentioned in article 12b TEU: “National parliaments shall contribute actively to the good functioning of the European Union […] by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and proportionality”. So while the EU should be more resolved to stick to its role, national parliaments should step up their game.
The word that saves the EU?
In 1992, Deborah Cass wrote an article on subsidiarity in which she calls subsidiarity the “word that saved Maastricht”. The subsidiarity principle had emerged from the tensions between the Member States and the European Union, amidst growing concerns about a supranational Europe threatening national sovereignty. Now the time has come to not only talk the talk. The return of the subsidiarity principle may well be another whim in the euroskeptic discourse, it does bring about a valid and valuable discussion on European decision making in line with national decision making. Let’s hope the EU will walk the walk.
To go further
On Nouvelle Europe
- Dossier de septembre 2013: L'agenda de la rentrée européenne
- Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/47, at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF
- Deborah Z, (1992) "The Word That Saves Maastricht? The Principle of Subsidiarity and the Divisionof Powers Within the European Community," Common Market Law Review, Vol. 29 July. pp. 1116 - 1119.
- Dutch ‘subsidiarity review’ strikes a chord with UK euro critics, Euractiv, 25 June 2013, http://www.euractiv.com/future-eu/dutch-subsidiarity-review-strike-news-528833
- Europees wat moet, nationaal wat kan, Dutch Government, 21 June 2013, http://www.rijksoverheid.nl/nieuws/2013/06/21/europees-wat-moet-nationaal-wat-kan.html?ns_campaign=regeringsnieuws&ns_channel=nb
- Lambert, J., Quentin, D., Rapport dIinformation Déposé Par La Délégation De l’Assemblée Nationale pour l’Union Européenne Sur L'application du Principe du Subsidiarité, 16 Novembre 2004, Http://Www.Assemblee-Nationale.Fr/12/Europe/Rap-Info/I1919.Asp#P114_11874
- L’application du principe de subsidiarite, Délégation du Sénat pour l'Union européenne - Rapport 46 - 1996 / 1997
- Les Néerlandais aideront-ils David Cameron à réformer l’UE ? Euractiv, 29 July 2013, http://www.euractiv.fr/autres/les-neerlandais-aideront-ils-david-cameron-a-reformer-lue-19989.html
- NL ‘subsidiarity review’ - explanatory note, Dutch Government, 21 June 2013, http://www.government.nl/documents-and-publications/notes/2013/06/21/nl-subsidiarity-review-explanatory-note.html
- Protocol on the application of the principles of subsidiarity and proportionality, 2008, C 115/203 at http://eur-lex.europa.eu/en/treaties/dat/12007L/htm/C2007306EN.01015001.htm
- Testing European legislation for subsidiarity and proportionality – Dutch list of points for action, EUobserver, http://euobserver.com/media/src/37f91104ec1fbecfdbb5685948bfa8c4.pdf
Image:© Antique Maps of the World, Map of Europe, Carl Allard.