Acta Universitatis Danubius. Juridica, Vol 10, No 1 (2014)

Vasilica NEGRUŢ¹

Abstract: Through this study we resume a topic analyzed by other authors as well, however we will highlight, based on analysis, observation and case study, the new nuances of subsidiarity principle after the entry into force of the Lisbon Treaty. Based on the historical perspective of the approach of this principle, we analyzed the subsidiarity’s place and role in the European reorganization. Subsidiarity principle is now a way of resetting the EU's relations with the Member States, while respecting the democratic principles established by the Treaty on European Union, increasing the role of national parliaments in the proper functioning of the European Union.

Keywords: subsidiarity principle; the European Union; competences

1. Introduction

Transformed into the EU rule of law, the subsidiarity principle has experienced a difficult path, rooted in the Catholic social doctrine², according to which the society should provide support to its weaker members, but it must take care to retain their autonomy and self-esteem (De Vargas Rex, 2012, p. 255). Meanwhile, another sense, closer to the administration, is considering limiting the role of government in order to justify the place of other institutions, including the Church.

A fundamental instrument of organizing and reorganizing the European construction (Maftei & Coman, 2010) the subsidiarity principle has acquired new dimensions with the entry into force of the Lisbon Treaty and the subsequent adoption of the Protocol no 2 on subsidiarity principle and proportionality³, being considered “an indispensable tool of regulation”(Belanger, Gautron & Grard, 2001, apud Veliscu, 2004, p. 66).

As mentioned in a specialized paper (Badescu & Alexandru, 1997, p. 59), the subsidiarity principle seeks to answer, on the one hand, the need for institutional reshaping and social evolution, and on the other hand, a need for active participation of citizens in decision-making, by lowering the level of adopting them as close as possible to the concrete problems, subsidiarity being based on the acceptance of plural society, but in a deeper sense than the meaning understood by the democracy (Veliscu, 2004, p. 173).

2. The Content of Subsidiarity

The subsidiarity role in stimulating the interregional cooperation has led to the consideration of this principle as a pillar of the transformation and distribution of the competences on state power levels (Monjal, 2010, p. 59). Thus, article 4, paragraph (3) of the European Charter of Local autonomy adopted in Strasbourg in 1985, states: “In general, the public affairs will be dealt with by administrative bodies closest to the citizens. Delegating the public affairs by other administrative bodies will depend on the nature and character of the task, i.e. the efficiency and economic requirements.” And paragraph (4) provides: “The duties of local authorities are generally full and exclusive. These tasks may be constrained by other regional or central bodies only under specific legal provisions.”

Division of competences in the light of subsidiarity has evolved in relation to the European construction, conferring to the process a more democratic feature. (Veliscu, 2004, pp. 165-174)

From the political point of view, subsidiarity is a dynamic, flexible concept (Veliscu, 2004, pp. 165-174), understood as an argument supporting the “expanding of the community structures at the expense of the national ones”, and as an argument against the “expansion of Community competences and their location at the national, local or regional communities” (Popa, 1997, p. 30). It is justified in this way the intervention of other authorities when it is not carried out the effectiveness of local action. This argument has led to the consideration of the lack of effectiveness of local action as a basic criterion according to which the state can intervene at national level, as at the European Union level, it is sending its jurisdiction whenever a Member State cannot solve effectively specific problems. (Popa, 1997, p. 28)

Meanwhile, subsidiarity is regarded as “the adequacy of political decision to the real pressures as permitted by pursuing the ideal and the suitability of the political decision to the current requirements within the limitations of the vision of the future.” (Popa, 1997, p. 50)

Subsidiarity principle was revived at the European level, with the amendment of the Treaty of Rome, through the Maastricht Treaty, article 3B acquiring the following content: “In areas which do not fall within its exclusive competence, the Community shall not take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, due to the dimensions or effects of the proposed action, be better achieved at Community level”. Previously, the Single European Act had introduced this principle without naming it as such, in the environmental domain.⁴

From a legal perspective, subsidiarity is analyzed in the general context of the European Union, estimating that “under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be achieved satisfactorily by the Member States or at the central, regional and local level, but due to the dimensions and effects of the proposed action, it can be better achieved at Union level” (article 5 of the Treaty, i.e. article 5 TEC).

If in the first stage of its evolution the subsidiarity role was to “regulate the exercise competences of institutions” subsequently, the European Council in Edinburgh in December 1992 has made some remarks⁵, thus placing the subsidiarity principle in the whole of the community law (Bădescu & Alexandru, 1997, p. 62). However, the Court of First Instance of the European Communities established in 1995 that prior to the entry into force of the Treaty on European Union, the principle has not been a general principle of law that relates to European legislation.⁶

In June 1994 the European Council’s conclusions from Corfu underlined that “openness and subsidiarity represent essential concepts that require a careful preparation”, claiming that “the Union must be built with the contribution of its citizens”; it was concluded that the subsidiarity principle should not focus only on EU relations with the Member States, but it should also include other levels, i.e. regional and local level. By the Treaty of Lisbon (Maftei & Matei, 2010) subsidiarity principle acquires new meanings, thereby ending the different interpretations given to this principle because, as stated in article 5 paragraph (3) the intervention of EU institutions, according to the subsidiarity principle, occurs in the following conditions: the covered areas are not in the exclusive competence of the Union; the objectives of the proposed action cannot be achieved effectively by the Member States “at the central, regional or local level”; objectives can be better achieved at the Union level, considering the scale and the effects of the established action.

Regarding the first aspect, namely the exclusive competence, the Lisbon Treaty classified the EU competences into exclusive⁷, shared⁸ and supporting competences⁹, specifying the areas where they apply (Title I of the TFEU) and the “limits of the Union competences are governed by the principle of conferral” (article 5, paragraph (1). Therefore, the subsidiarity principle applies only to non-exclusive competences which it results from the treaty. Moreover, article 4 paragraph (1) states that “any competence which is not conferred to the Union by the Treaties belongs to the Member States”, and in turn “the Member States shall facilitate the achievement by the Union of its mission and refrain from any measure which could jeopardize the attainment of the Union’s objectives.”

It should be highlighted also that the principle of subsidiarity applies to all EU institutions (Article 1 of Protocol no. 2), and the Member States through national parliaments verify compliance with this principle, according to the procedure established by the Protocol no 2 regarding applying the subsidiarity and proportionality principles.¹⁰ According to this procedure, the European Commission, the European Parliament, The Council shall forward their draft legislative acts and its amended drafts to national Parliaments (Article 4 of Protocol no. 2), “draft legislative acts” shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank for the adoption of a legislative act (Article 3 of the Protocol).

The protocol establishes, however, that the draft legislative acts, as defined, are motivated in accordance with the principles of subsidiarity and proportionality. In this sense, each draft legislative act should contain a statement that facilitates the assessment of conformity with the set principles, including the reasons based on qualitative and quantitative indicators leading to the conclusion that an objective of the European Union can better achieved at the level of the Union.

According to Article 6 of the Protocol, the national parliaments or any chamber of a national Parliament may send to the European Parliament President, to the Council and to the Commission, within eight weeks from the date the draft legislative act, a reasoned notification stating the reasons for which it considers that the draft in question does not comply with article 5 of the EU Treaty. If at least one third of the votes allocated to national parliaments converge to a reasoned negative notification, the draft legislative act will be submitted for reviewing. The protocol provides that the initiator of the legislative act may decide, under the conditions specified therein, maintaining, amending or withdrawing the proposal.

An example of non-compliance of the draft legislative act with the principle of subsidiarity is the reasoned notification given in 2012 on the proposal of European Commission Regulation concerning the exercise of the right to bring collective actions within the freedom of establishment and freedom to provide services, known under the title of “Monti II Regulation” and it starts and for the first time the “yellow card procedure” (Article 7 paragraph 2 of Protocol no. 2). Following this result¹¹, the European Commission withdrew the proposal. Another example of non-compliance with the subsidiarity principle is reflected in the European Commission's annual report for 2012 on subsidiarity and proportionality¹², and it refers to the Proposal for a Regulation on the European aid fund for the most deprived persons.¹³ In this case, the Commission explained that the proposed fund “will be based on national support schemes and it will be implemented through shared management” having the Member States the responsibility to identify the types of interventions and the target groups.

Verifying the compliance of the subsidiarity principle can be done after the adoption of the legislative act, according to the procedure of judicial review by the Court of Justice of the European Union, complying with “the rules provided in Article 263 of the Treaty on the Functioning of the European Union¹⁴, by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof” (Article 8 of the Protocol).

According to article 263 TFEU, actions can be formulated also by the Committee of the Regions¹⁵, if the Treaty on the Functioning of the European Union provides, consulting the committee in question, the adoption of legislative acts. (Monjal, 2010, p. 59)

Article 9 of the Protocol establishes that there should be submitted annually a report to the European Council, the European Parliament, the Council and national Parliaments on the application of Article 5 of the Treaty on European Union. This annual report will also be forwarded to the Economic and Social Committee and the Committee of the Regions.

3. Conclusions

The principle of subsidiarity is the result of applying three criteria¹⁶ aiming at exercising the competences of the European Union: legality, opportuneness and proportionality. Thus, the EU institutions act within the limits of the established competences and objectives set by the Treaty on European Union. The criteria of opportuneness and necessity result from article 5, paragraph (3) recognizing the possibility of EU intervention “only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States” criterion of proportionality limits the EU intervention to “what it is necessary in order to achieve the objectives of the Treaties”.

As stated in the Annual Report of the European Commission on subsidiarity and proportionality, in 2012 there were intensified the discussions on the two principles (subsidiarity and proportionality), insisting upon the necessity to define in a more clearer way the scope of the subsidiarity control.

Subsidiarity cannot affect the existing legal order (Popa, 1997, p. 31), the exclusive competence of the EU institutions being established by the Treaty. (Nicu, 2011, p. 79)

Freed by the historical and ideological contexts, the subsidiarity principle is now a way of resetting the Union’s relations with the Member States, while respecting the democratic principles established by the Treaty on European Union and the growing role of the national parliaments¹⁷ for the proper functioning of the European Union.

4. References

Bădescu, Cristian & Alexandru, Ioan (1997). Introducere în studiul procesului de cooperare interregională/Introduction to the study of inter-regional cooperation process. Bucharest: Sylvi.

Fuerea, Augustin (2010). Manualul Uniunii Europene/The EU Manual. 4th Edition revised and enlarged by the Treaty of Lisbon (2007/2009). Bucharest: Universul Juridic.

Maftei, Jana & Matei, Dorin (2010).The mechanism for promoting the small and medium enterprises in Europe. Euroeconomica, no. 25, pp. 105-112.

Maftei, Jana & Coman, Varvara Licuţa (2010). The Principle of Non Discrimination and the Protection of National Minorities in the European Judicial Space. AGORA International Journal of Juridical Sciences, No. I.

Monjal, Pierre Yves (2010). Droit européen des collectivités locale/European law on local communities. Paris: L.G.D.J.

Nemery, Jean Claude, Wachter Serge (1993). Entre l’Europe et la descentralisation-Les institutions territorialles francaises/Between Europe and decentralization – the French territorial institutions. Paris: Edition de l’Aube.

Nicu, Alina Livia (2011). Tratatul de la Lisabona şi perspectivele conceptului de spaţiu administrativ european/Lisbon Treaty and the prospects of the concept of European Administrative Space.Buna administrare de la viziune la acţiune/Good management from vision to action, (Coord.) Emil Bălan et al. Bucharest: Comunicare.ro.

Pop, Lia (2004). Subsidiaritatea-principiu de construcţie europeană/Subsidiarity-European principle construction. Geographica Timisiensis, Vol. 13, no. 1.

Popa, Eugen (1997). Corelarea principiului autonomiei locale cu alte principii de drept/Correlation of the principle on local autonomy with other principles of law. Arad: Servo-Sat.

Roger Valério De Vargas Rex (2012). The subsidiarity principle in the European Union. Eletrônica do Curso de Direito da UFSM/Electronics Course of Law of UFSM, Vol. 7, no 2.

Velişcu, Raluca, (2004). Principiul subsidiarităţii în dreptul comunitar/Subsidiarity principle in EU law. Revista Transilvană de Ştiinţe Administrative/Transylvanian Review of Administrative Sciences, Vol. 2, issue 11.

Online Sources

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0566:FIN:RO:PDF.

http://www.europarl.europa.eu/ftu/pdf/ro/FTU_1.3.5.pdf.

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