Subsidiarity in the EU and Brexit

LAW AND POLICY OF THE EU (ADVANCED): SUBSIDIARITY

In July 2016 approximately 52 percent of UK nationals voted pro the referendum to exit the European Union. The aftermath of their decision has been tragic for British politics. Anna Blackman refers to the mainstream political parties as ones who are facing ‘leadership crisis, and each parties’ political credibility is becoming more dilapidated on a near-daily basis’[1].  At the same time, the fourth estate is painting a gloomy image regarding violence in local communities fueled by issues such as xenophobia and racism.[2] However, the idea behind the Brexit is more complex than political ambitions or communal hostilities, despite the fact these factors have also played a role. It is estimated that close to 72 percent of eligible voters participated in the referendum, which is also the highest turnout since the UK’s 1992 general election. This turnout can be explained by ‘a feeling of political apathy albeit with a nationalistic protectionist tone’[3]. However, it is widely believed that the setting of the referendum does not only illustrate apathy, but distinguishes itself as communities being disempowered, and being encroached by state and market.

The issue seems to be a question of power; which is also an issue of subsidiarity[4]. In this particular context, subsidiarity is akin to the guiding principle that revolves around regulating of power within appropriate levels. Throughout this paper, I will be focusing on the topic of ‘subsidiarity’ and will critically discuss the statement at hand: “Subsidiarity is, in reality, the centerpiece of the Brexit debate and similar debates elsewhere across the European Union. If the principle of subsidiarity were adhered to more closely, there would be fewer tensions between the EU and some Member States.” I will do this by briefly looking at how subsidiarity has deemed its way into the Brexit argument; the history, and the topic of subsidiarity in regards to court reticence prior to Lisbon and post.

Subsidiarity in Brexit

The European Union (EU) adopted the same principle into the Maastricht Treaty in 1992 to provide direction between the EU institution and member nation states. However, centralization of the EU threatened the very principle of subsidiarity hence precipitating calls for the UK referendum. However, in several aspects the Brexit has very little to do with the EU’s violation of subsidiarity and much more to do with their own[5].

Political protagonists such as David Cameron have even conceptualized a notion of “Big Society” that is heavily drawn upon the ideology of subsidiarity. Cameron’s “Big Society” initiative is geared towards devolving decision-making at the local community level while at the same time fostering the development of volunteer associations and cooperatives[6]. However, in certain quarters such a deception is perceived as archaic as the principle of subsidiarity should ‘involve state intervention in necessary measures when individuals or lesser bodies are incapable of protecting the human dignity’[7]. Therefore, subsidiarity fundamentally ensures that power lies at an appropriate level for human dignity, as well as the balancing of powers.

Subsidiarity, as mentioned before, “is a form of assistance to the human population via autonomy of intermediate bodies. Such assistance is provided when individuals or groups of people aren’t able to accomplish a particular task on their own, and the process is always designed to accomplish the emancipation, due to the fact that it fosters freedom and participation through assumption of responsibility. Subsidiary entails personal dignity through acts that recognize a person a subject that is always capable of giving something to others”[8].

Inherently, Anna Blackman agrees that the ‘service of the human person’ is at the very core of the concept of subsidiarity, but it is this exact principle that Cameron’s government ignored.[9] It is  disrespect to a system promoting the interest of the state and market at the expense of the local community. For instance, if we look at the different forms of nationalism which have risen post-Brexit, their themes do not center on allegiance to the nation-state but rather revolves on issues that are far more tribal, and this is where the failings of subsidiarity twin principle of solidarity become apparent. Even though subsidiarity operates by managing the vertical structure of the society, solidarity moves horizontally. 

David Cameron’s policies reflect on a perfect example of a grotesque miscalculation of the critical function of subsidiarity. Because it promotes a politics of “Big Society” that devolves the responsibility to local communities under the disguise of empowerment accompanied with a program of austerity that deprives communities of avenues to exercise their civic role, and any form of governmental solidarity with communities that has failed to materialize. Such a result cannot be assumed to be some variants of political apathy but instead a deep-seated feeling of powerlessness to instill some political change for a big portion of the population, hence disenchantment with political engagement. An irony that manifests itself in the “Big Society” concept is that by giving arguments to undo bureaucracy associated with the state, the process occurs through a top-down bureaucratic political process.

With the ongoing bittering players across different divide are wondering of the UK would be better off within the EU. In true subsidiarity, the European Union acts as a high decision organ mandated to tackle issues that previously were difficult to deal with at the state-level such as big business and environmental concerns.

Origins of Subsidiarity: General Principles of European Union Law

Subsidiarity is said to be the word that saved the Maastricht Treaty.[10] It is regarded as a general principle of the European Union law, and according to different amendment’s related to the subsidiarity principle, the European Union is only mandated to enact pieces of the legislative amendments in situations where the actions of member states are insufficient[11]. The treaty was established through the Treaty of Maastricht in 1992. However at the local level, subsidiarity has become a critical element of the European Charter of Local self-government, an organ of the Council of Europe that was promulgated in 1985. According to Article 4, paragraph 3, the exercise of the public responsibilities should be decentralized. The present formulation is available from article 5(3) of the EU treaty that was later on consolidated into the Treaty of Lisbon, effected on 1^st December 2009.

Paul Craig[12] discusses the rationales for subsidiarity within the EU. He states that the first rationale was the perceived role of subsidiarity as a ‘mechanism for alleviating disputes concerning the division of competence between the EC and the Member States.’[13] Essentially, under the subsidiarity principle, regions that appear beyond the union competence, the union is only mandated to act only if the envisaged objectives cannot be sufficiently attained by the member countries, either at the central or regional level, but can also due to the magnitude of the concern be attained at the Union level. Craig went on the affirm that the second rationale for subsidiarity was that where the limits of federal power were not precise, subsidiarity would therefore become a way to measure it;[14] essentially, if the objective could be ‘sufficiently’ achieved at the Member State level, it would then be mandatory that the European council demonstrates that it could be ‘better’ achieved at Community level.[15] Craig also distinguished that to avoid excessive centralization, subsidiarity was vital. It is the legal mandate of the Court of Justice of European Union to decide whether a particular regulation cascades within the exclusive capability of the Union. Due to the fact that the Subsidiarity principles wields both political and legal aspects, the Court of Justice comes with a reserved attitude towards judging whether different EU legislation is consistent with the aforementioned concept. During such instances, the court only assesses whether the principal was fulfilled marginally. Besides, detailed legislations are not essential, the EU institutions can only give their explanations as to why they believe that national legislations appear inadequate and that the Union law comes with added value. 

Application of Subsidiarity

As mentioned above, the principle rationale for subsidiarity is to alleviate the ‘competence’ problem; essentially in his article ‘Competence: Clarity, Conferral, Containment and Consideration’, Craig distinguishes the theme of the Lisbon Treaty as being equal to the theme in the Maastricht Treaty (using Subsidiarity to alleviate fears of Federalism); essentially the division of competencies became clearer because of the Lisbon schema.[16]

For instance, in the Federal Republic Germany v European Parliament and Council of European Union[17] in relation to deposit guarantee schemes on May 13^th 1997. The plaintiff argued that the directive failed to accentuate on its compatibility with subsidiarity principle[18].

According to the court: consideration should be accorded to scenarios that may arise if the deposits from a credit institution with branches disbursed in satellite countries are unavailable, then it is appropriate to ensure that there are harmonized minimum level of deposit protection if deposits can be traced back to the community level. Such a ruling illustrates that in the community legislatures view, the aim of their action, due to the aspects of the intended action, can best be attained at the community level. Besides, during the fifth recital, both the parliament and the council stated actions instituted by member countries regarding the commission’s recommendations doesn’t fully attain the favorite results, and therefore the objective of any action is best adequately attained by member states.

Therefore, alongside any democratic perception, the parliament and the council gave their opinions on why they considered that their actions conformed to subsidiarity principle, and consequently, complied with the obligation by providing reasons as mandated from Article 190 of the treaty. It is under this rationale that the plea of infringement of the obligation of any state becomes unfounded and should therefore be disregarded.

Essentially, the Court of Justice was resistant to get involved, and they adopted a ‘light touch’, however looking at the case of Vodafone v Secretary of State for Business (Grand Chamber) 2010[19], we can see the court’s discretion post-Lisbon. In this case, a regulation was adopted on the basis of Article 114 of the TFEU which set maximum roaming charges payable by a consumer’s home Member State network to a foreign network used by the home operator. This case raised the issue of whether the regulation could be annulled for the incorrect use of Article 114 TFEU. Ultimately, it was deemed to not be of a breach as the regulation was not breaching the principle of subsidiarity. Craig explains that the reality is “whether a particular judicial decision was right or wrong can only be determined by looking closely at the contested regulatory scheme and deciding whether it ‘passed’ the subsidiarity criterion. When judged from this perspective, it is not self-evident that any of the challenged regulations should have fallen because of subsidiarity.”[20]

Treaties of the European Union

The EU member countries operate within some constitutional guidelines that establish the different EU institutions together with their remit, procedures, and objectives. The member countries are therefore allowed to operate within the competences granted to them via the treaties whereby the amendments also require agreements and ramification in relation to their country specific procedures. The EU operates under two distinct treaties, which are the Treaty on European Union and Functioning of the European Union initially assented in 1957 in Rome to establish the economic community. These treaties have progressively been an amendment with other treaties[21].

Amendments and Ratifications

These treaties are usually changed using three approaches. There is the standard revision procedure whereby different amendments are reviewed through a full inter-governmental conference. There is also a procedure created through Treaty of Lisbon and only ensures changes that do not enhance the powers of the European Union. There is also the passerelle clause that doesn’t entail amending treaties, but allows alterations of legislative amendments on particular circumstances. 

The procedures for amending the treaties begin when proposals from an institution or member states are escalated to the European Council. During the ordinary revision procedure, the president of the European council summons a European convention comprising of representatives from commissions, national parliamentarians, and the national government representatives to draft changes to the European Council before proceeding with an intergovernmental conference mandated to agree on the treaty on behalf of different government hence signed and ratified by each member country. Despite the fact that the procedure has been in existence prior to the Lisbon treaty, as actual European convention has only happened twice[22].

There is also the simplified revision procedure that does not only apply to section three of the treaty regarding the functioning of the European Union and therefore cannot increase the powers of the EU. Any reform being implemented on the legal basis of the EU should be ratified in accordance with procedures from each member state. It is the state’s legal mandate to ratify and lodge instruments of ratification with the Government of Italy before the treaty comes into force.

In certain occasions, states have failed  the particular treaty passed by the public during a referendum. A good case is Denmark and Ireland whereby a successive referendum was held after different concessions were granted. However, in the case of Netherlands and France, the treaty was abandoned in favor of a treaty that would not prompt a referendum. Even though treaties are always placed before the European Parliament and due to the fact that the vote is not binding, it is essential that both the Belgian and Italian parliaments said they would veto the Nice Treaty if the European Parliament failed to approve it[23]. 

Conclusion

The principle of subsidiarity is described in article 5 of the Treaty on the European Union and its crucial role is to ensure that decisions regarding operations of the union are placed carefully to the citizen as possible and that different assessments are administered to ascertain that any action at EU level is justified in light of possibilities from the local, regional, and national level. Precisely, this is also the very principle that EU do not take exclusive action with the exception being in regions that do not fall within the brackets of its exclusive competence, unless the action appears more efficient compared to action taken at local, regional, or national level. The rules are closely bound up with the principle of proportionality, which entails that any action by the EU should not proceed beyond what is essential to attain the objectives of the treaties. According to the above case, it is evident that there exist two protocols annexed to the treaty of Lisbon which is critical:

Protocol 1: It dictates the role of national parliament by encouraging respective parliament from member involvement with EU activities and proposals to be forwarded promptly so that they can examine the rules before the council takes a decision.

Protocol 2: it involves the commission taking into account the local and regional dimension of all draft legislative acts and to make a detailed statement on how principle of subsidiarity is respected. Such a protocol has enabled national parliaments to object to a proposal on the basis that it breaches the principle, and as a result the principle which the proposal should be reviewed and may be maintained, amended or withdrawn by the commission, or blocked by the Council or European Parliament.

Academic Articles

Bermann, G. (2009) ‘National Parliaments and the Principle of Subsidiarity: An Outsider’s View’. In Pernice, I. and Tanchev, E. (eds) Ceci n’est pas une Constitution – Constitutionalisation without a Constitution (Baden-Baden: Nomos).

Caporaso, James A. “The European Union and forms of state: Westphalian, regulatory or post‐modern?.” JCMS: Journal of Common Market Studies 34, no. 1 (1996): 29-52.

Cass, D. (1992) ‘The Word that Saves Maastricht? The Principle of Subsidiarity and the Division of Powers within the European Community’. Common Market Law Review, Vol. 29, pp. 1107–36.

Chalmers, Damian, Gareth Davies, and Giorgio Monti. European Union law: cases and materials. Cambridge university press, 2010.

Craig, P. (2012) ‘Subsidiarity: A Political and Legal Analysis’. Journal of Common Market Studies, Vol. 50, pp.72-87

Craig, P. (2004) ‘Competence: Clarity, Conferral, Containment and Consideration’. European Law Review, Vol. 29, pp. 323–44.

Dawson, Mark. “EU law’transformed’? Evaluating accountability and subsidiarity in the’streamlined’OMC for Social Inclusion and Social Protection.” (2009).

Estella de Noriega, Antonio. The EU principle of subsidiarity and its critique. 2002.

Geyer, Florian. Security versus justice?: police and judicial cooperation in the European Union. Routledge, 2016.

Howarth, David, and Lucia Quaglia. “Banking on stability: the political economy of new capital requirements in the European Union.” Journal of European Integration 35, no. 3 (2013): 333-346.

Lange, Peter, George Ross, and Maurizio Vannicelli. Unions, change and crisis: French and Italian union strategy and the political economy, 1945-1980. Routledge, 2016.

Schimmelfennig, Frank, and Thomas Winzen. “Instrumental and constitutional differentiation in the European Union.” JCMS: Journal of Common Market Studies 52, no. 2 (2014): 354-370.

Van Kersbergen, Kees, and Bertjan Verbeek. “The politics of international norms: Subsidiarity and the imperfect competence regime of the European Union.” European Journal of International Relations 13, no. 2 (2007): 217-238.

Cases

Case C-233/94 Germany v Parliament [1997] ECR I-2405

Case C-58/08 R (on the application of Vodafone Ltd) v Secretary of State for Business [2010]

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[1] Anna P. Blackman, Brexit: An Exercise in the Violation of Subsidiarity. 2016

[2] IBID

[3] IBID

[4] Estella de Noriega, Antonio. The EU principle of subsidiarity and its critique. 2002.

[5] Dawson, Mark. “EU law transformed’? Evaluating accountability and subsidiarity in the’streamlined’OMC for Social Inclusion and Social Protection.” (2009).

[6] Van Kersbergen, Kees, and Bertjan Verbeek. “The politics of international norms: Subsidiarity and the imperfect competence regime of the European Union.” European Journal of International Relations 13, no. 2 (2007): 217-238.

[7] N (1)

[8] Howarth, David, and Lucia Quaglia. “Banking on stability: the political economy of new capital requirements in the European Union.” Journal of European Integration 35, no. 3 (2013): 333-346.

[9] N (1)

[10] Cass, D. (1992) ‘The Word that Saves Maastricht? The Principle of Subsidiarity and the Division of Powers within the European Community’. Common Market Law Review, Vol. 29, pp. 1107–36.

[11] Lange, Peter, George Ross, and Maurizio Vannicelli. Unions, change and crisis: French and Italian union strategy and the political economy, 1945-1980. Routledge, 2016.

[12] Craig, P. (2012) ‘Subsidiarity: A Political and Legal Analysis’. Journal of Common Market Studies, Vol. 50, pp.72-87

[13] IBID

[14] Bermann, G. (2009) ‘National Parliaments and the Principle of Subsidiarity: An Outsider’s View’. In Pernice, I. and Tanchev, E. (eds) Ceci n’est pas une Constitution – Constitutionalisation without a Constitution (Baden-Baden: Nomos).

[15] N(7)

[16] Craig, P. (2004) ‘Competence: Clarity, Conferral, Containment and Consideration’. European Law Review, Vol. 29, pp. 323–44.

[17] Case C-233/94 Germany v Parliament [1997] ECR I-2405

[18] Chalmers, Damian, Gareth Davies, and Giorgio Monti. European Union law: cases and materials. Cambridge university press, 2010.

[19] Case C-58/08 R (on the application of Vodafone Ltd) v Secretary of State for Business [2010]

[20] n (7)

[21] Schimmelfennig, Frank, and Thomas Winzen. “Instrumental and constitutional differentiation in the European Union.” JCMS: Journal of Common Market Studies 52, no. 2 (2014): 354-370.

[22] Caporaso, James A. “The European Union and forms of state: Westphalian, regulatory or post‐modern?.” JCMS: Journal of Common Market Studies 34, no. 1 (1996): 29-52.

[23] Geyer, Florian. Security versus justice?: police and judicial cooperation in the European Union. Routledge, 2016.