How to turn subsidiarity into an effective tool ? – Reflections on the Communication of the European Commission on the principles of subsidiarity and proportionality
By Vincent Delhomme
After its State of the Union address of 13 September 2017, in which he presented his vision for the future of the Europe Union, President Juncker announced the creation of a Task Force to reflect on the application of the principles of subsidiarity and proportionality in EU policymaking and to make propositions to strengthen their role (see the President’s Decision). After several meetings and consultations, the Task Force published its findings in a final Report and the Commission released a Communication in October 2018 in which it commits to follow several of the propositions made.
This commentary presents some of these recommendations and sketches some (rough) reflections on the place of the principle of subsidiarity in the EU legal order and how to improve its role as a tool to control EU legislative activity.
Main elements of the Commission’s Communication
The Commission identifies five areas where it intends to follow the recommendations of the Task Force, among which three are particularly relevant for our purposes.
The Commission and the Task Force first consider it necessary to promote a common understanding of subsidiarity and proportionality among the different stakeholders: European institutions, national parliaments and local and regional authorities. Indeed, the lack of a commonly accepted definition renders cooperation difficult, especially between the Commission and national parliaments. To this end, the Commission accepts the proposal to use a new grid elaborated by the Task Force, which would ideally be used by all European and national institutions when performing a subsidiarity and proportionality check. This grid contains a step-by-step analysis and a series of questions to be answered to ensure the compliance of EU acts with these principles
The Commission also takes on some of the recommendations made by the Task Force to enable national parliaments to scrutinise more effectively EU legislative proposals in the framework of the Early Warning Procedure (EWP), for instance in continuing to discount the month of August when determining the 8-week period during which parliaments can submit reasoned opinions and exploring whether the Christmas/New Year period could also be discounted. The Task Force had also proposed to extend the EWP to 12 weeks, which would require a Treaty change and an amendment to the relevant Protocol.
The Commission finally commits itself to improve the assessment of the impacts of its legislative proposals, including territorial impact, in order to better monitor respect for the principles of subsidiarity and proportionality.
Comments: how to turn subsidiarity into an effective tool ?
What does subsidiarity mean?
There is undoubtedly a need for a shared understanding of subsidiarity among all the actors involved in its monitoring. The majority of national parliaments’ reasoned opinions on EU legislative acts tackle issues going beyond subsidiarity stricto sensu and are dismissed by the Commission on those grounds. More broadly, there seems to be no common understanding of what subsidiarity means among officials, scholars or practitioners. What then should this common understanding of subsidiarity be?
Borrowing from the useful contribution of Professor Michael Dougan to the work of the Task force, it can be said that subsidiarity has two main meanings. Subsidiarity stricto sensu is a rather technocratic principle: the Union and the Member States agree that action is needed towards the realisation of a certain objective, the question being which level is the most appropriate to attain this objective. If action at the national level appears insufficient and the EU is better placed to act, action should be taken at the EU level. This meaning of subsidiarity, which is to a large extent what can and should be read from Article 5(3) TEU, is very much about regulatory efficiency and much less about concern for Member States’ interests and autonomy.
What Member States, national parliaments and the general public are more interested in when they talk about subsidiarity is something different: it is whether the EU meddles too much in their internal affairs or daily lives, if it acts in areas that are thought to be better left to Member States. This political understanding of subsidiarity is, to quote Jean-Claude Juncker, about the EU being ‘big on the big things and small on the small things’. In that sense, it has much more to do with the principles of conferral and proportionality contained in Articles 5(2) and 5(4) TEU and the respect for national identities and fundamental structures of Member States enshrined in Article 4(2) TEU.
I would argue that both meanings are legitimate and have a role to play in controlling EU legislative action. A common understanding of this principle should aim at ensuring that each stakeholder understands these differences and at which stage of the legislative process they can play their role, rather than trying to impose a unique meaning of subsidiarity.
The Commission’s primary role is to ensure that EU action is fit for purpose and that the objective of its proposals would not better be met at the national level. The European Parliament and the Council especially have a hybrid position: they must make sure when adopting EU legislation that it complies with technocratic subsidiarity while at the same time in their political capacity decide of the appropriateness for EU action. National parliaments or local/regional authorities should on their part be entitled to oppose EU legislative acts if they judge that this action is a threat to their competences or the interests they defend. They can of course also formulate objections based on a technocratic approach of subsidiarity, but it is probably not where their primary concern lies nor something for which they are well equipped.
It follows that the new grid proposed by the Task Force does not go in the right direction. Its content is highly influenced by the Commission’s own toolbox on subsidiarity and proportionality and reflects the technocratic vision of subsidiarity. As such, and if it is effectively used, it will curtail the local and national institutions in their review and will probably do very little to alleviate their concern. According to national parliaments themselves, one of the obstacles to the functioning of the EWP ‘relates to a narrow understanding of the principle of subsidiarity as provided for in article 5 TEU, which excludes the principle of conferral and the principle of proportionality (European Parliament, Report on the implementation of the Treaty provisions concerning national parliaments, p.6). To reinforce the role of subsidiarity, both its technocratic and political control must be strengthened in their respective spheres of action.
Strengthening the technocratic and political control of subsidiarity
The Commission can surely do better to ensure respect for subsidiarity in EU action. It should conduct more thorough investigations and present them clearly in its impact assessments (IA), which would also enable stakeholders and the general public to exercise scrutiny. A quick look at various IAs shows that the Commission’s control is too often reduced to a mere box ticking exercise. In the IAs prepared for the revision of the Tobacco Products Directive and the adoption of the Food Information Regulation, for instance, subsidiarity analysis covers no more than a page and the public health dimension of subsidiarity is entirely neglected despite being one of the prominent objectives of these two pieces of legislation. A more recent IA, such as the one drafted for the revision of the Audiovisual Media Services Directive, does not offer a very different picture. The Council and the European Parliament, on their part, almost never perform IAs of their substantial amendments during the legislative procedure, which renders subsidiarity controls almost impossible. It is crucial that all institutions involved in the legislative procedure take subsidiarity seriously by performing controls more thoroughly and systematically.
This will in turn improve judicial control, which should carefully monitor the existence and content of this preparatory work, engage with the evidence provided and annul measures if the subsidiarity check has not been properly performed or if the legislator has wrongfully disregarded evidence. It is maybe not the kind of broad subsidiarity control that has been advocated by some authors, but such increased scrutiny of the Court does not necessarily amount to nothing (see the Opinion of AG Maduro in case C-58/08 Vodafone, paras 27-36).
At the same time, the political control of subsidiarity must also be reinforced. The EWP mandate must be extended to cover subsidiarity stricto sensu but also the respect for the principles of conferral, proportionality and more broadly the political merits of EU action. National parliaments should be able to oppose a draft legislative act on grounds of national interest, to protect their competence or their autonomy. With such increased control from national parliaments, the necessity for a red card would hopefully diminish, as it would be politically difficult for the Commission to disregard an opposition from a majority of parliaments based on such broad grounds and to carry on without substantially amending or withdrawing its proposal.
Is subsidiarity the real issue ?
Strengthening subsidiarity control along these lines could surely improve European decision-making and provide for a ‘safety valve’ in case a legislative proposal would be deemed too threatening for certain national interests. But none of this is in itself capable of altering the current scope of EU action, if needed. At least two main problems make subsidiarity, even understood in a broad sense, the wrong tool to address the feeling of competence creep that has affected the EU already for several decades.
First, if one focuses on EU legislative action, the control of subsidiarity stricto sensu is too often neutralised by the centrality of the internal market purpose in EU legislative activity and the (ab)use of Article 114 TFEU as a legal basis. Indeed, under Article 114 TFEU, the existence and the exercise of EU competence are mingled concepts, for if an act effectively contributes to the functioning and establishment of the EU internal market by harmonising national provisions it pursues an objective that by definition cannot be adequately pursued by Member States alone. This conclusion appears clearly from the case law of the Court of Justice (see cases C-58/08 Vodafone, paras 76-77; C-154/05 and C-155/05 Alliance for Natural Health, paras 104-108; C-151/17 Swedish Match, paras 67-69). Moreover, in the case of instruments pursuing a double objective, such as internal market and public health, the Court considers that subsidiarity claims based on the health objective of these instruments are neutralised by the fulfilment of the internal market objective (see Swedish Match, paras 67-69; C-547/14 Philip Morris, paras 220-222). Subsidiarity concerns on health grounds can consequently not be raised, which can lead to detrimental consequences for the protection of public health.
Second, subsidiarity as a broader tool of political control suffers from one major shortcoming: it focuses solely on legislative action from the EU which is not its most controversial and problematic mode of action. Even in the cases most prone to criticism, such as the use of Article 114 TFEU for reasons alien to market integration, legislative action remains a democratic procedure where different interests can be voiced and taken into consideration. There are other avenues through which the EU and EU law expand their reach without such guaranties, such as the Court’s expansive approach to the fundamental freedoms of movement or the European Semester, a particularly coercive form of soft law with an impact on some of the core functions of Member States’ governments. Subsidiarity as a brake on legislative action has no grasp on these phenomena.
No more today than yesterday is subsidiarity the magical concept that will save the Union from over-centralisation, but the current procedures can surely be improved to ensure that its legislative action does not encroach too much on Member States’ powers and interests. The conclusions of the Task Force and the Commission contain interesting elements, but could have gone further in that regard. For instance, the Commission could have recognised the legitimacy of national parliaments to address subsidiarity in the broad sense in their reasoned opinions and its intentions to engage with these concerns. At the same time, any useful discussion of the current balance of power between the EU and its members should question other types of EU action which may be less visible but equally problematic for certain core socio-economic choices of Member States.
 See for instance for a control based on ‘federal proportionality’: G. Davies, ‘Subsidiarity: the wrong idea, in the wrong place, at the wrong time’ (2006) Common Market Law Review 43, 63–84; R. Schütze, ‘Subsidiarity after Lisbon: reinforcing the safeguards of federalism?’ (2009) Cambridge Law Journal 68(3), 525–536.
 See V. Delhomme, ‘The Ban on Tobacco for Oral Use Upheld by the Court of Justice: On Subsidiarity and Proportionality in EU Lifestyle Risks Policy’ (2019) European Journal of Risk Regulation.
 The paragraph builds on the insights presented in S. Garben, ‘Restating the Problem of Competence Creep, Tackling Harmonisation by Stealth and Reinstating the Legislator’, in S. Garben and I. Govaere (eds), The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future, Oxford: Hart Publishing, 2017.