Subsidiarity

INTRODUCTION

One of the major objectives of the Intergovernmental Conference on the revision of the Treaties was to bring the European Union closer to its citizens by enabling them to understand and influence European integration. A number of Community policies, such as those on consumer protection or employment, will be reformed with this specific goal in mind.

Subsidiarity was another major topic of discussion when the conference considered how better to meet the expectations of the people of Europe. To consolidate this principle, on which the efficiency of the European Union depends, a specific protocol has been annexed to the EC Treaty.

PROTOCOL ON THE PRINCIPLE OF SUBSIDIARITY

In October 1992, the Birmingham European Council confirmed that decisions should be taken as closely as possible to the citizens of the Union in accordance with Article 5 (ex Article 3b) of the EC Treaty. With this in mind, the Edinburgh European Council of December 1992 agreed an overall approach for applying the principle of subsidiarity (basic principles, guidelines, and procedures).

The Protocol on the application of the principles of subsidiarity and proportionality codifies the guidelines adopted by the Edinburgh European Council and gives them force in law. By this means the Member States intend to formalise a number of aspects relating to subsidiarity:

• subsidiarity is a dynamic concept and the appropriate level for action may vary according to circumstances;
• all legislative proposals will be accompanied by a statement on the impact of the proposed measure on the application of the principle of subsidiarity;
• consistent with the proper achievement of the objective, the form of Community action should not be too restrictive (as far as possible, directives should be preferred to regulations);
• subsidiarity should not undermine the powers conferred on the European Community by the Treaty, as interpreted by the Court of Justice.

The main condition for embarking on Community action is set out in the second paragraph of Article 5 of the EC Treaty, which states that the Community shall take action "only 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". The Protocol cites three criteria for judging whether this condition has been fulfilled:

• does the action have transnational aspects that cannot be satisfactorily regulated by the Member States?
• would action by Member States or lack of action conflict with the requirements of the Treaty?
• would action at Community level produce clear benefits?