The principle of subsidiarity

The principle of subsidiarity is an essential notion of the Community. That's why this principle
is present in the Amsterdam treaty and the Lisbon treaty.
The principle of subsidiarity is the idea that a central authority should have a subsidiary function,
performing only those tasks which cannot be performed effectively at a more immediate or local
level.
Transposed to the Community or the European Union, this means that E.U should only act when the
lower authorities wouldn't act effectively.
The Treaty of Amsterdam amending the Treaty of the European Union, the Treaties establishing the
European Communities and certain related acts, commonly known as the Amsterdam Treaty, was
signed on 2 October 1997, and entered into force on 1 May 1999; it made substantial changes to the
Treaty on European Union which had been signed at Maastricht in 1992.
The Treaty of Lisbon (initially known as the Reform Treaty) is a treaty that was signed by the E.U
member states on 13 December 2007, and entered into force on 1 December 2009. It amends the
Maastricht treaty and the Treaty establishing the European Community (1957).
Prominent changes included more qualified majority voting in the Council of Ministers , increased
involvement of the European Parliament in the legislative process through extended codecision
with the Council of Ministers, the elimination of the pillar system and the creation of a long-term
President of the European Council and a to present a united position on EU policies. The Treaty
also made the High representative of the Union for Foreign affairs and security policy to present a
united position on EU policies. The Treaty also made the Union's human rights charter, the Charter
of fundamental rights legally binding.
The stated aim of the treaty was "to complete the process started by the Amsterdam treaty [1997]
and by the Nice treaty [2001] with a view to enhancing the efficiency and democratic legitimacy of
the Union and to improving the coherence of its action.
So the main interest of this subject is to see if there is an evolution on the application of the
principle of subsidiarity and in which way his application has changed between the Amsterdam
treaty and Lisbon treaty. To analyse this change, firstly we have to observe the principle within the
Amsterdam treaty (I). Then we'll have to observe the evolutions of this principle of subsidiarity
within the Lisbon Treaty (II).

I] The principle of subsidiarity within the Amsterdam Treaty.

In this part, it's essential to observe the areas and the conditions of the principle of subsidiarity (A).
Then we'll see that the European institutions have to give a permanent justification when they
decide or not to use the principle of subsidiarity (B).

A] The areas and the conditions of the use of the principle of subsidiarity.

It said in the protocol of the application of the principles of subsidiarity and proportionality
annexed to the Amsterdam the principle of subsidiarity is there to ensure that the decisions are taken
closely as possible to the citizens of the Union.
It's also affirmed, in this protocol that the principle of subsidiarity is valid only in areas where the
the community does not have exclusive competences. In other terms, the principle of subsidiarity is
valid only in areas where the European Union and the Member States have competing skills.
Moreover, the principle of subsidiarity, according to this protocol, has to be used when an action by
Member States will not be enough to carry out the objectives of this action. In this case the
Community should be competent, because the action could be better achieved. This should be done
in the following situations:
– “ the issue under consideration has transnational aspects which cannot be satisfactorily
regulated by action by member States.”
– “ actions by Member States alone or lack of Community action would conflict with the
requirements of the Treaty or would otherwise significantly damage Member States'
interests.
When there's no need for an action of the Community, it's up to Member States to take all
appropriate measures. However these measures have to respect the Treaty, abstaining them from
any measure which could jeopardise the achievement of the objectives of the Treaty.
So, in fact, the principle of subsidiarity has the ambition to ensure that decisions are taken closely to
the citizens of the Union, that's mean by the closest administrations ( for example local
administration). But paradoxically it set that the most efficiency action should be legitimated.
So, there is a conflict in the text because from one hand it's said that the lowest action should be
legitimated, and from an other hand it's said that the most efficiency action should be legitimated
The complexity of this principle of subsidiarity may explain why European institutions insist on the
fact that the use of the principle of subsidiarity always has to be justified

B] A permanent justification of the use or not of the principle of subsidiarity.

When the principle of subsidiarity is used in favour of the European institutions, they have to
explain the details of their action.
The protocol of the application of the principles of subsidiarity and proportionality annexed to the
Amsterdam plans that “ without prejudice to its own right of initiative, the Commission should:
– justify the relevance of its proposals with regard to the principle of subsidiarity; whenever
necessary, the explanatory memorandum accompanying a proposal will give details in this
respect. The financing of Community action in whole or in part from the Community budget
shall require an explanation.
– - submit an annual report to the European Council, the European Parliament and the Council
on the application of article Article 3b of the treaty. This annual report shall also be sent to
the Committee of the regions and to the Economic and Social Committee.
So, we can see that the principle of subsidiarity has to respect lots of criteria. European Institution
have to give the details of their actions to the other institutions when the use the principle of
subsidiarity.
However, the rules relating to the principle of subsidiarity have changed among the years and the
different Treaties, in particular with the Lisbon Treaty.

II] The evolutions of the principle of subsidiarity within the Lisbon Treaty.

First, we'll see that the Lisbon Treaty reaffirmed some aspects of the principle of subsidiarity
given by the Amsterdam Treaty (A). Then we'll see the evolution of the principle of subsidiarity
with the Lisbon Treaty (B).

A] The reaffirmation of the principle of Subsidiarity given by The Amsterdam Treaty.

 The basis of the principle of subsidiarity given in the Amsterdam Treaty are reaffirmed in the
Lisbon Treaty. For example, there is in the protocol annexed to Lisbon treaty on the application of
the principles of subsidiarity and proportionality the same sentence present in the protocol annexed
to Amsterdam treaty which says that the principle of subsidiarity is there to ensure that the decisions
are taken closely as possible to the citizens of the Union.
There is also the idea that the principle of subsidiarity is used when the Union objective can be
better achieved at the Union level than local level.
The Treaty of Lisbon also guaranties that each institution shall ensure constant respect for the
principles of subsidiarity and proportionality. So, basically, the main characteristics of the principle
of subsidiarity given by the Amsterdam stills present in the treaty of Lisbon. The general idea and
definition of the principle of subsidiarity hasn't change within the Lisbon treaty.
The real changes between the Amsterdam treaty and Lisbon treaty are the reinforcements of the
mechanisms of control of the principle of subsidiarity.

B] An increase of the mechanism of control of the principle of subsidiarity.

The Lisbon treaty has reinforced the control of the principle of subsidiarity. Indeed Local
institutions play a more important role in the control of the principle of subsidiarity within the
Lisbon Treaty. Moreover, within the Lisbon treaty, European institutions have to explain and
describe all their decisions, involving the principle of subsidiarity, to Member States' and local
institutions. The aim of this reinforcement is to respect the fact that decisions of the Union have to
be taken closely as possible to the citizens of the Union.
This is mentioned in the Article 2 of the Protocol annexed to Lisbon treaty which states that “
before proposing acts, the Commission shall consult widely. Such consultations shall, where
appropriate, take into account the regional and local dimension of the action envisaged.
As we said within the Lisbon treaty, Union institutions have to inform the States' institution on their
legislative acts and projects. This is stated by the article 4 of the Protocol annexed to Lisbon treaty:
“ The Commission should forward its draft legislative acts and its amended drafts to national
Parliaments at the same time as to the Union legislator. […] Upon adoption, legislative resolutions
of the European parliament and positions of the Council shall be forwarded by them to national
Parliaments.
The Lisbon treaty allows States' institutions to pronounce themselves if the think that a draft comply
or not with the principle of subsidiarity. It's the article 6 of the Protocol annexed to Lisbon treaty
which detailed this: “ Any Parliament or any chambers of a national Parliament may, within eight
weeks from the date of transmission of a draft legislative act, in the official languages of the Union,
send to the Presidents of the European Parliament, the Council and the Commission a reasoned
opinion stating why it considers that the draft in question does not comply with the principle of
subsidiarity.”
The article 7 of this protocol sets many powers for the Member States' parliament to express their
doubts about the respect of the principle of subsidiarity for a given legislative act.
Thus, the second paragraph of the article 7 states that “Where reasoned opinions on a draft
legislative act's non-compliance with the principle of subsidiarity represent at least one third of all
the votes allocated to the national Parliaments in accordance with the second sub-paragraph of
paragraph 1, the draft must be reviewed. […] After such review, the Commission or, where
appropriate, the group of Member States, the European parliament, the Court of Justice, the
European Central Bank or the European Investment Bank, if the draft legislative act originates from
them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this
decision.
In the same idea, the third paragraph of the same article states that “Where reasoned opinions on the
non compliance of a proposal for a legislative act with the principle of subsidiarity represent at least
a simple majority of the votes allocated to the national Parliaments in accordance with the second
sub-paragraph of paragraph 1, the proposal must be reviewed. After such review, the Commission
may decide to maintain, amend or withdraw the proposal. If it chooses to maintain the proposal, the
Commission will have, in reasoned opinion, to justify why it considers that the proposal complies
with the principle of subsidiarity.”
Those articles just permit to the Parliaments to express their opposition on an Act which according
doesn't respect the principle of subsidiarity. However this power is not like a veto. Indeed, the
proposal will just have to be reviewed and the Commission will have the last word, not the national
Parliaments.
However, the Council have a power which is close of the veto power. Indeed, the sub-paragraph (b)
of the paragraph 3 of the article 7 of the Protocol annexed to Lisbon treaty plans that 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. Judicial control of the principle has
also been improved within the Lisbon Treaty.
Indeed, according the article 8 of the protocol annexed to the Lisbon treaty, “the court of Justice of
the European Union 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 263 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 parliament or a chamber thereof; In
accordance with the rules laid down in the said article, the committee of the regions may also bring
such actions against legislative acts for the adoption of which the treaty on the functioning of the
European Union provides that it be consulted.”
So we can see that the Lisbon treaty has greatly improved the control of the principle of
subsidiarity, the political control and the judicial one.