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Subsidiarity in Article 3b of the Ec Treaty—Gobbledegook or Justiciable Principle?

Published online by Cambridge University Press:  17 January 2008

Virginia Harrison
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Extract

In the negotiations for the Treaty on European Union,1 “subsidiarity” assumed central importance. This was the first time that the term was expressly incorporated with general effect into the Treaty.2 The principal provision3 is Article 3b, which reads:

The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.

In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only4 if and in so far as the objectives 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.

Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 2 , April 1996 , pp. 431 - 439
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. The Treaty on European Union (signed on 7 Feb. 1992, popularly known as “the Maastricht Treaty”) is so described in this article. The term “the Treaty” is used to refer to the EC Treaty as amended, inter alia, by the Single European Act 1986 and by the Maastricht Treaty.

2. The concept was not new, either to European thought in general (it has been traced back to Aristotle—see Beale, A. and Geary, R., “Subsidiarity Comes of Age” (1994) 144 N.L.J. 12), or to the Community. It can e.g. be detected in the concept of the directive, “binding, as to the result to be achieved, upon each Member State to which it is addressed, but [which] shall leave to national authorities the choice of form and methods” (Art.189 EC). Moreover, it was incorporated into the Treaty itself, though in a different form and in relation only to the environment, by the Single European Act 1986 as Art.130r(4). This provision was superseded by the TEU.Google Scholar

3. It is also mentioned in the Preamble (“RESOLVED to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen, in accordance with the principle of subsidiarity”) and in Art.B of the Common Provisions. Neither the Preamble nor the Common Provisions are legally enforceable.

4. The significance of the addition of “only” is discussed infra nn. 12–14.

5. The European Council meeting at Edinburgh in 1992 produced the Edinburgh Guidelines (Bull.E.C. 12–1992), the Commission provided a report on the principle to that summit (SEC(92)1990 Final, 27 Oct. 1992) and subsequently reported on its own consideration of existing legislation and of proposals for legislation (COM(93)545,24 Nov. 1993 and COM (94)533,25 Nov. 1994), Parliament's Committee on Legal Affairs and Citizens' Rights issued an opinion in Mar. 1994 (PE 208.185/fin). This activity culminated in an Inter-institutional Agreement coming into force, with the Maastricht Treaty, on 1 Nov. 1993 “on procedures for implementing the Principle of Subsidiarity”.

6. The procedures are explored in the article by Toth, “Is Subsidiarity Justiciable?” (1994) 19 E.L.R. 268 and can be divided into direct actions, principally under Art.173. and preliminary references from national courts under Art.177.

7. Art.164 EC and Art.L TEU.

8. McKenzie-Stuart, Lord, “A Formula for Failure”, The Times, 11 Dec. 1992.Google Scholar

9. “Economic and Monetary Union and Political Union”. Session 1989/90, 27th Report, para.165.

10. Report of the Foreign Affairs Committee, “Europe after Maastricht”, HC 205 1992–93, p.36.

11. And hence no question of an action for failure to act under Art.175 EC.

12. House of Lords Select Committee Report, “Political Union: Law Making Powers and Procedures”, Session 1990–91, 17th Report, paras.57 and 58. In that draft the relevant part of the clause had read “the Community shall only take action, in accordance with the principle of subsidiarity, if and in so far as those objectives can be better achieved”.

13. The added “only” is indicated in the text of Art.3b supra n.4.

14. Both these points are even clearer in the French and German versions of the provision (“la Communauté n'intervient, conformément au principe de subsidiarité, que si et dans la mesure où … et peuvent donc en raison des dimensions ou des effets”; “wird die Gemeinschaft nach dem Subsidiaritätsprinzip nur tätig, sofern und soweit … und daher wegen ihres Umfangs”. Ironically, given the change that was made, the English final version has positioned “only” misleadingly, a construction disapproved in long sentences by Fowler's Modern English Usage. It would have been clearer to position the “only” directly with the main verb as in “shall [only] take action”.

15. See Case 106/77 Simmenthal (2) [1978] E.C.R. 629 and Factortame v. Secretary of State for Transport [1991] 1 All E.R. 70.

16. Art.174 EC.

17. See supra n.7.

18. SEC(92) 1990 Final, 27 Oct. 1992; see supra n.5.

19. As in the case of the establishment of the internal market in Art.8a EEC/Art.7a EC.

20. Art.130r.

21. The issues are not always as clear cut as this suggests. The objective of a particular measure may be debatable. E.g. in the Titanium Dioxide case (Case C-300/89 Commission v. Council [1991] E.C.R. I–2869) the Court acknowledged that Directive 89/428/EEC on procedures for harmonising programmes for the reduction of pollution caused by that industry's waste pursued “the twofold aim of environmental protection and improvement of the conditions of competition”.

22. This has been argued e.g. by Toth, in “A Legal Analysis of Subsidiarity”, in O'Keeffe, and Twomey, (Eds), Legal Issues of the Maastricht Treaty (1994).Google Scholar

23. See SEC(92) 1990, supra n.5. under “The subsidiarity principle”, para.II.3.

24. E.g. by a recommendation or opinion.

25. See J. Steiner, “Subsidiarity under the Maastricht Treaty”, in O'Keeffe and Twomey, op. cit. supra n.22.

26. An example, though not given by Steiner, would be the case of a non-preemption clause allowing the member State to lay down stricter rules than those prescribed in a Directive, e.g. Art.13 of Directive 85/337/EEC on the subject of environmental assessment.

27. See para.55 of the 17th Report of the 1990/91 Session, supra n.12.

28. E.g. “We want them to play a constitutional role,” said Sir Christopher Prout MEP, “we do not want them out in political country which is not fair to them”: ibid.

29. The Deputy Legal Adviser to the FCO told the same committee that the ECJ President had written formally to the President of the then forthcoming IGC to say that the ECJ was in principle willing to take on the task of adjudicating on subsidiarity (idem, para.57).

30. Hartley, T., The Foundations of European Community Law (1994), p.164.Google Scholar

31. Emiliou, N., “Subsidiarity: an Effective Barrier against the ‘Enterprises of Ambition’?” (1992) 17 E.L.R. 383.Google Scholar

32. Case 5/71 Aktien-Zuckerfabrik Schöppenstedl v. Council [1971] E.C.R. 975 laid down for the first time the limitation on the award of damages to be paid by the Community in cases where the ECJ annulled a Community measure. There had to be a “sufficiently flagrantviolation” of a superior rule of law for the protection of the individual. Unlawfulness in itself would not suffice.

33. Legal base is the term for the provision in the Treaty under which the Community institutions have power to legislate.

34. Failure to specify the precise legal base is an infringement of an essential procedural requirement (Case 45/86 Commission v. Council ] E.C.R. 1493).

35. Again in Case 45/86, ibid, it was held that the choice of legal base must depend on objective factors which are amenable to judicial review.

36. Case 55/75, [1976] E.C.R. 19.

37. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] K.B. 223. This seminal decision of the Court of Appeal in English administrative law laid down the principle that an administrative decision could be set aside by the court if relevant considerations were not taken into account, if irrelevant considerations were taken into account or if the decision was one which no reasonable authority could have reached. Such decisions are known as “Wednesbury unreasonable”.

38. This point is made by Reich, N., “The ‘November Revolution’ of the Court of Justice: Keck, Meng and Audi revisited” (1994) 31 C.M.L.Rev. 459. He also relies upon Case 2/91 Criminal Proceedings against W. W. Meng (judgment of 17 Nov. 1993) in which the ECJ gave a restrictive interpretation of anti-competitive agreements outlawed by Art.85, and upon CaseC317–91 Deutsche Renault v. Audi (judgment of 31 Nov. 1993) in which the ECJ found that member States had exclusive competence to define the subject matter of a trade mark.Google Scholar

39. Joined cases C-267/91 and C-268/91 (judgment of 24 Nov. 1993).

40. Case 120/78 Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] E.C.R. 649.

41. I.e. to be valid the national measure did not have to be necessary to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions or the defence of the consumer.

42. [1994] E.C.R. I–5267. See also Appella, (1996) 45 I.C.L.Q. 440.

43. I.e. cross-frontier supplies in GATS and the provisions concerning the release into free circulation of counterfeit goods in TRIPS.

44. Case 22/70 Commission v. Council (ERTA) [1971] E.C.R. 263; Cases 3,4,6/76 Kramer (North East Atlantic Fisheries Convention) [1976] E.C.R. 1279 and Opinion 1/76 on The Laying-up Fund for Inland Waterway Vessels [1977] E.C.R. 741, (1977) O.J. C107/4.

45. Toth, op. cit. supra n.6, writing before the opinion was promulgated, had been particularly concerned at the need for the ECJ to allocate competences for “external (Treaty making) powers”.

46. The ECJ stressed (pp.13–14) that where such subject matter fell partly within Community competence and partly within that of member States, close co-operation between them was essential. Member States and the Community institutions had an obligation to co-operate flowing from the need for unity in the international representation of the Community.

47. In 1992 Chancellor Kohl e.g. had expressed dissatisfaction with the evolution of the ECI's case law (EG-Forum des Gemeinschaftsausschusses der Deutschen Gerwerblichen Wirtschaft, 5 Oct. 1992); more recently. Sir Patrick Neill has strenuously urged scrutiny of what he perceives as the judicial activism of a “court with a mission”, which “forms its own view as to the desirable scope of its own jurisdiction” (see “The European Court of Justice: A Case Study in Judicial Activism”, unpublished, 23 Jan. 1995). The ECJ, it is understood at the time of writing, has now made its own submission to the IGC, defending the present scope of its powers.

48. E.g. it was paid relatively little attention by the European Council meeting at Essen in Dec. 1994.

49. Commission President Santer in an interview with The Times, 4 May 1995, p.14.