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Principle of Subsidiarity and the European Union Institutions*

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Principle of Subsidiarity and the European Union Institutions* Principle of Subsidiarity and the European Union Institutions* Assist. Prof. Dr. Gönül Oğuz** Abstract The tasks and responsibilities of the institutions, which are speci- fied by the EU treaties, have been subject to scholarly debate. With the changes that are occurring in the EU political system, an emphasis is placed on the question of how much the principle of subsidiarity can advance the practice of integration in terms of the decision-making ca- pacity of the institutions. A particular attention is paid to the question of whether principle can have major positive effects by helping to shape the institutions within which democracy can operate. This paper explores the possible impact of the principle on the EU institutions. Keywords European Union, institutions, subsidiarity * A slightly improved version at this paper was selected by the university at St. Gallen and the Swiss Foreign Office and the Venice Commission on the occasion at the Swiss chair- manship at the Committe at Ministers at the Council at Europe to represent Turkey in an essay competitian Conterence, Democracy and Decentralization Galen/Switzerland, 3-4 May 2010. ** Giresun University 104 Gönül Oğuz [Annales XLV, N. 62, 103-126, 2013] Introduction Article 5 of the Treaty on the European Union (TEU) provides a workable division of powers between the EU and the member states. Article laid down the responsibilities for the EU institutions to exercise powers over the national parliaments. The competences between the EU and the member states were merely distinguished. The EU is now required to take action only if national action is insufficient in accom- plishing the objectives of the proposed action. So, the EU measures are not expected to go beyond what is necessary to comply with the Treaty objectives. Under this legal framework, the policy responsibilities between the EU and national governments have led to a fierce debate in a sense that resistance to the principle is considerable. This is particularly relevant for the question of which competences should be given to the EU institu- tions and which retained for the member states. It is generally recognized that the EU institutions are politically significant as to they make consid- erable contribution to integration process. This in turn raises a question mark for the efficacy of principle within the EU’s institutional context. The concept of subsidiary The concept of subsidiarity is an organizing principle to the extent of which the political decisions should always be made by the smallest, lowest or least centralized competent authority. It is a level of govern- ment, which opposes the centralizing tendencies and is thus assertion the rights of the parts over the whole. The original philosophical meaning of subsidiarity was first pro- nounced by Pope Pius XI: ‘It is an injust, a grave evil and disturbance of right order for a large and higher association to arrogate to itself functions which can be performed efficiently by smaller and lower societies’.1 1 Pius XI, Encyclical Letter, AAS 23 (Quadragesimo Anno, 1931). Principle of Subsidiarity and the European Union Institutions 105 The principle of subsidiarity fits easily with the Christian democratic parties in Europe.2 Fom the beginning, the European Community (EC) Treaty created the common community rules, not in the areas marked out for common organization, such as social policy, but in all the areas of activity outlined in the Treaty, or falling within the broader objectives of the Community.3 Roughly speaking, the idea of subsidiarity was invoked in 1980s, when the Community embarked on a programme by extending its competence under the Single European Act (SEA) of 1986. The sec- ond paragraph of Article 5 of TEU (ex 3b) simply stated: ‘In areas which do not fall within its exclusive competence, the Community shall take action, accordance with the principle of subsidiarity, only if and insofar as the objective of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community’. The principle desires to create local democracy by highlighting its respective contribution to a broad political idea. In that sense, Article 1 of the TEU makes the principle more concrete and applicable as it marks ‘a new stage in the process of creating an ever closer union among the European peoples, in which decisions are taken as closely as possible to the citizen’. From this perspective, it is assumed that the EU should be governed as close as possible to its citizens and involved in policy man- agement, only where necessary to safeguard the completion of internal market, together with other fundamental aims of the subsequent treaties. As a further step, Article 5 of the Treaty of Amsterdam, which was signed in October 2 1997, incorporated the ‘protocol on application of the principles of subsidiarity and proportionality’ into the EU treaties without altering the wording of the subsidiarity criterion. The Treaty clearly stated that ‘action by the European Community in accordance with the principle of subsidiarity not only concerns the member states, but also their entities, to the extent that they have their own law-making powers conferred on them under national constitutional law’.1 The aim 2 Tansey, S. D. The Basic Politics, (Routledge, 2004), pp. 157. 3 Steiner, J. and Woods, L. Textbook on EC Law, (Oxford University Press, 2003), pp. 259. 106 Gönül Oğuz [Annales XLV, N. 62, 103-126, 2013] was to enhance the proper implementation of principle by the EU insti- tutions. It was hoped that the common interests would eventually bring the concrete benefits regarding the policy areas in which the EU forms. The priority given to the economic integration was made clear from the outset as the primary goal of the Treaty of Rome.4 At the same time, invoking subsidiarity had a chilling effect on the inclination of the EU institutions to go for ever more EC draft legislation in the early 1990s. In the years of the Convention and the constitutional treaty debates, the subsidiarity question was fiercely debated in the political terms of “more or less Europe”.5 In the early 2000s, the issue was discussed by the Convention on the Future of Europe. This wide conception of subsidiarity was challenged, but its precise meaning was identified. In order to determine whether subsidiarity can be applicable, the principle became an integral feature of the Constitutional framework of the EU.2 In an abortive effort for a better control and respect for the prin- ciple, the Treaty of Nice that was signed in 26 February 2001 established innovatie goals to distinguish competences of the EU institutions. The Treaty introduced a mechanism to check compliance of draft legislative acts with the principle. The violation of principle implied removal of a draft act from the legislative agenda of the EU. This emerging prespective was given a new role to the national parliaments of the member states. Through the changes brought by the Treaty, the EU decision-making process was set to take on a new dimension, with the introduction of an ex ante procedure.6 Surely, this was a crucial step forward that would stimulate the application of the principle in terms of the EU’s instituti- anal development. 4 McCormick, J. Understanding the European Union, the European Union Series, (Palgrave- Macmillan, 2008), pp. 142. 5 Pelkmans. J. ‘An EU Subsidiarity Test is Indispensable’, Forum, Intereconomics, September/October, 2006, pp. 249–254. 6 Gutman, K. ‘The Commission’s 2010 Green Paper on European Contract Law: Reflections on Union Competence in Light of the Proposed Options’, ERCL 2/2011, pp.251-272 (269). Principle of Subsidiarity and the European Union Institutions 107 Principle of subsidiarity: policy relevance How far do the particular features of the EU’s system produce the subsidiarity model? Is the tendency towards centralised authority in the EU resistible? These questions are difficult to answer. They are so at least for four reasons. Competences of the EU While emphasizing transferring more competences to the EU level, the modern realities dictate that the objectives of action are less fanciful to achieve by the national governments alone. The member states lack capacity to manage their own affairs in accordance with the sufficiency criterion. Simply, transferring more powers to the EU are fundamental and perhaps the most significant aspect of the EU system. The crucial point is that building Europe may no longer be a progressive step for- ward if the EU’s involvement is marginal. Gradually, the member states have arrogated to themselves exclusive responsibility for establishing uniform laws that have motivated the citizens to move more easily from one part of the country to another. In principle, minimum harmonisa- tion does underlie a great deal of geographical mobility in the absence of different tax regimes, and legal, educational and social security systems throughout the EU. The goal of harmonisation can be attained via the supranational Union. Bravely, commentators have tried to work out what subsidiarity means for the policy-making and regulations in the EU. They agree that some of the EU’s biggest programmes conflict with it. For instance, much of the work of Schäfer (2006) emphasized on the increasing tendency towards centralisation, which clearly runs counter to the principle – even though it is the fundamental principle for action in the EU. As Schäfer has pointed out, the decisive reasons for the increasing departure from the principle by means of further centralisation in the EU are more likely to be derived from the domain of politico-economic explanation approaches. In this sense, the United Nations’ bodies are striving to 108 Gönül Oğuz [Annales XLV, N.
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