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The Development of Subsidiarity and Proportionality after the Implementation of the Lisbon Treaty
The exercise of subsidiarity and proportionality within the EU is clearly linked to the competence of the EU to make law. The Lisbon Treaty gave the EU the opportunity to reform its position regarding its competencies which had been described as being unprincipled as well as being unclear with the system in place since the Maastricht Treaty. It must be noted that the link with competency is clear for subsidiarity considering that it ensures that the EU does not intrude upon national or cultural identities which has become more of a concern with the increasing amount of binding law that is emanating from the EU. Behind that, the principle of proportionality is designed to ensure that the law passed by the EU should not go beyond what is necessary in attempting to achieve the objectives of the EU Treaties. Whilst proportionality has been regarded as a general statement of the law, it has been subject to great challenge in the CJEU. Accordingly, this essay will examine how the competences have changed since the Lisbon Treaty with the knock on effect that that has had on the concepts of subsidiarity and proportionality.
Competency of the EU
It is imperative that the competency of the EU is discussed which will give a greater footing for the discussion of subsidiarity and proportionality within the EU after Lisbon. Article 2 of the Treaty on the Functioning of the EU (‘TFEU’) outlined that there is exclusive competence meaning that binding acts can be adopted by the EU, there is shared competence which was widened but means that Member State can legislate on matters but could only go further than what the EU had done rather than restrict the law passed by the EU. It has been noted by Professor Craig that the Lisbon Treaty, in expanding shared competency, has created some confusion as the lines are blurred between exclusive and shared. It must also be noted that the power given to the Member States vis-à-vis shared competences are subject to control and oversight by the CJEU demonstrating how the EU is retaining its power. The third and final type of competence within Article 2 of the TFEU is supporting which gives the EU some power to legislate but it cannot override the power of the Member State to legislate and it is not designed to create harmony throughout the Member States. With these three types of competency given to the EU, the issue that arises is the extent to which the EU can use its powers which is where subsidiarity and proportionality come into play. On this basis, they will be discussed to determine how their remit has altered since Lisbon and the effectiveness in ensuring that the Member States still retain some oversight powers.
Subsidiarity and Proportionality Prior to the Lisbon Treaty
The concepts of subsidiarity and proportionality were introduced into the Treaty law in Maastricht at Article 5 of the European Community Treaty which stated that the EC could only take action in line with subsidiarity which meant insofar as the objectives of the law could be better introduced by the EC and that the EC would not act beyond what is necessary. In this regard, this would only apply to pieces of law that would fall within the shared and supporting with exclusive competence not being subject to these concepts considering that the Member State was to have no say in those areas. To this end, the European Commission had taken a very wide view of what was meant by exclusive competence. This idea of subsidiarity under Maastricht had three main components which were:
The EU was only to take action if the objective could not be achieved by the Member State;
The EU could better achieve the objective; and
If the first two are met, then the action taken by the EU would not go beyond what was necessary.
In this regard, there was a clear overlap between subsidiarity and proportionality, which formed the basis of the third component. The duties placed upon the institutions of the EU began to grow in relation to subsidiarity and proportionality considering that the Protocol on the Application of Principles of Subsidiarity and Proportionality were attached to the Amsterdam Treaty meaning that the concepts had to be taken into account when making law. This idea of subsidiarity and proportionality was criticised by Estella on the basis that trying to have self-regulation on where the EU should not be able to intervene was not going to succeed due to the defining lines being difficult to discern.
Subsidiarity and Proportionality after the Lisbon Treaty
The concepts of subsidiarity and proportionality were retained in the Treaty law at Article 5 of the Treaty on the EU (‘TEU’) but was more defined than that in Maastricht by stating that subsidiarity applies to law that is not within the exclusive competency and that national Parliaments should ensure that there is compliance with the subsidiarity procedure in the Protocol. Additionally, the principle of proportionality was explicitly mentioned unlike in the Maastricht Treaty. To this end, there were two protocols attached to the Lisbon Treaty, that being one on subsidiarity and proportionality and the other on the role of national Parliaments of the Member States.
In terms of the changes that were brought about by these protocols attached to the Treaty, the subsidiarity protocol was seen to put greater duties upon the EU Commission to consult before proposing new legislation. To this end, there should be a statement as to how the legislative proposals would have a financial consequence as well as why it should be introduced at an EU level rather than by the Member States. There was also greater scrutiny of the EU Commission under Article 263 of the TFEU on the basis that the CJEU was given the power to consider actions brought by the Member States vis-à-vis a breach of subsidiarity. However, it has been seen in the cases brought after the implementation of the Lisbon Treaty that the CJEU has taken a light approach as to whether the concept of subsidiarity has been breached as seen in Commission v Germany. Indeed, this limited scrutiny is compounded by the fact that it can only be a Member State that brings an action and not an individual as held by the CJEU in P Artegodan GmbH v Commission and Germany. This demonstrates that the legal control of the Commission is not strong to the extent that it can be difficult to achieve a finding that the Commission had acted beyond its competency.
One key area where there has been greater oversight given is through the greater powers given the national Parliaments. This is seen through Article 6 of the protocol on subsidiarity and proportionality where there is a ‘yellow card procedure’ meaning that if one third of the Parliaments express concern with a legislative proposal then the Commission must review it and give written reasons as to its conclusion. However, this has been regarded as a vacuous oversight mechanism considering that it only requires the Commission to review its decision again and they can decide to continue with their initial legislative proposal. Indeed, the overall use of subsidiarity has been criticised as being too limited in scope and that it is easily displaced by the Commission in introducing legislative acts with Davies stating that there should be a greater emphasis on proportionality with Parliaments being able to argue that legislation is not proportionate. Indeed, Weatherill has also criticised this role for Parliaments regarding subsidiarity but not for proportionality on the grounds that the two principles come together within the same remit, that being whether the EU has competency to make the law or not.
In terms of the effectiveness of the reforms, especially that of giving increased scrutineering powers to the national Parliaments, there has been some success. Indeed, Kiiver has noted that the lack of discussion about the powers of Parliaments has actually added to the power as the Commission is not willing to take their power too far in light of the political turmoil it could cause with Member States. Indeed, the Commission has noted that if a larger Member State expresses concern it is likely to take heed of it as could be seen with the labour law proposals, Monti II, which were withdrawn after complaints from the national Parliaments yet the Commission did not say it was on the basis of subsidiarity or proportionality. To this end, the Lisbon Treaty can be seen as giving greater oversight powers to Parliaments vis-à-vis the Commission and this means that it is more likely that it will ensure the laws that are proposed comply with the idea of subsidiarity.
This essay has examined the development of subsidiarity and proportionality in the EU. It is clear that they are integral in determining the remit of the powers of the EU to make legislation. The concept of subsidiarity can be seen as greatly changing as a result of the Lisbon Treaty to the extent that increased powers have been given to national Parliaments to raise concern. Whilst these powers are limited as they are not binding upon an actual decision, the political control that it can give has been seen to the extent that Monti II was stopped and the Commission are aware of the consequences of failing to take into account the concerns of the Member States. This demonstrates that it has developed in favour of the Member State, yet this would be bolstered if it was expanded allowing the Member State to make representations on how legislation would not be proportionate.
Amsterdam Treaty
Lisbon Treaty
Maastricht Treaty
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Protocol (2) on the application of the principles of subsidiarity and proportionality, [2008] OJ
Treaty on the European Union
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Commission v Germany [2010] ECR I-1885
Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle fur Getreide und Futtermittel [1970] ECR 1125
P Artegodan
GmbH v Commission and Germany [2012] EUC 216
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Craig P, ‘Competence: Clarity, Conferral, Containment and Consideration’ (2004) ELR 323
Davies G, ‘Subsidiarity: The Wrong Idea, in the Wrong Place and the Wrong Time’ (2006) 43 CMLR 63
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Principle of Proportionality and Its Application in EC Law’ (1993) 13 YEL 105
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Kiiver P, ‘The
Early Warning System for the Principle of Subsidiarity: The National Parliament as a Conseil d’Etat for Europe’ (2011) 36 ELR 98
Schutze R, ‘Co-Operative Federalism Constituionalized: The Emergence of Complementary Competences in the EC Legal Order’ (2006) 31 ELR 167
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Better Competence Monitoring’ (2005) 30 ELR 23
Commission Communication to the Council and the European Parliament, Bull EC 10-1992
EU Commission, Annual Report 2012 on Subsidiarity and Proportionality (Com 566, 2013

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