Article 5(3) of the Treaty on European Union establishes the principle of subsidiarity. This principle is fundamental to the functioning of the European Union (EU), and more specifically to EU decision-making. In particular, it determines when the EU is competent to legislate. It appears alongside two other principles that are also considered to be essential to European decision-making: the principles of conferral and proportionality.
The Treaty of Lisbon revised the principle of subsidiarity (which was initially introduced by the Maastricht Treaty) by introducing control mechanisms in order to monitor its application:
- Protocol (No 2) on the application of the principles of subsidiarity and proportionality, which also defines the implementation of the principle of subsidiarity;
- Protocol (No 1) on the role of national parliaments in EU decision-making.

KEY POINTS

Definition of subsidiarity

The principle of subsidiarity aims at determining the level of intervention that is most relevant in the areas of competences shared between the EU and the EU Member States. This may concern action at the EU, national or local level. In all cases, the EU may only intervene if it is able to act more effectively than Member States at their respective national or local levels.
Protocol (No 2) on the application of the principles of subsidiarity and proportionality lays down the following three criteria aimed at establishing the desirability of intervention at the EU level.
- Does the action have transnational aspects that cannot be resolved by Member States?
- Would national action, or an absence of action, be contrary to the requirements of the treaty?
- Does action at the EU level have clear advantages?
The principle of subsidiarity also aims at bringing the EU and its citizens closer by guaranteeing that action is taken at the local level where it proves to be necessary.

Complementarity with the principles of conferral and proportionality

Article 5 of the Treaty on European Union defines the division of competences between the EU and the Member States. It first refers to the principle of conferral, according to which the EU has only those competences that are conferred upon it by the treaties.
Subsidiarity and proportionality are corollary principles of the principle of conferral. They determine to what extent the EU can exercise the competences conferred upon it by the treaties.
By virtue of the principle of proportionality, the means implemented by the EU in order to meet the objectives set by the treaties cannot go beyond what is necessary.
The EU can therefore only act in a policy area if:
- the action forms part of the competences conferred upon the EU by the treaties (principle of conferral);
- in the context of competences shared with Member States, the EU level is most relevant in order to meet the objectives set by the treaties (principle of subsidiarity);
- the content and form of the action do not exceed what is necessary to achieve the objectives set by the treaties (principle of proportionality).

Monitoring the principle of subsidiarity

The Treaty of Lisbon reformed the above protocol in order to improve and reinforce monitoring.

Mechanisms to monitor the principle of subsidiarity were put in place by Protocol (No 2) on the application of the principles of subsidiarity and proportionality and by Protocol (No 1) on the role of national parliaments in the EU.
Protocol (No 2), originally introduced by the Treaty of Amsterdam, provides for compliance with certain obligations during the actual drafting of legislation. Thus, before proposing legislative acts, except in cases of exceptional urgency, the European Commission must consult widely and, where appropriate, take into account the regional and local dimensions of the action envisaged. This consultation allows the Commission to collect opinions from national and local institutions and from civil society on the desirability of a legislative proposal, in particular in respect of the principle of subsidiarity.
This protocol also adds an obligation for the Commission to accompany draft legislative acts with a detailed statement demonstrating compliance with the principles of subsidiarity and proportionality.

Under Protocol (No 1), the Treaty of Lisbon adds a further reform by associating national parliaments closely with the monitoring of the principle of subsidiarity. National parliaments exercise twofold monitoring as follows.

They have a right to object when legislation is drafted. They can thus dismiss a legislative proposal before the Commission if they consider that the principle of subsidiarity has not been observed.
They may contest a legislative act before the Court of Justice of the European Union if they consider that the principle of subsidiarity has not been observed.

The Treaty of Lisbon also associates the European Committee of the Regions with the monitoring of the principle of subsidiarity. In the same way as national parliaments, the Committee may also contest, before the Court of Justice, a legislative act that does not comply with the principle of subsidiarity.

Every year, the Commission prepares an annual report on the application of the principles of subsidiarity and proportionality and on relations with national parliaments, and, as part of its implementation of the better regulation initiative, it publishes annual reports on subsidiarity and proportionality.

MAIN DOCUMENTS

Consolidated version of the Treaty on European Union – Title I – Common provisions – Article 5 (ex Article 5 TEC) (OJ C 202, 7.6.2016, p. 18).

Consolidated version of the Treaty on the Functioning of the European Union – Protocol (No 2) on the application of the principles of subsidiarity and proportionality (OJ C 202, 7.6.2016, pp. 206–209).

Consolidated version of the Treaty on the Functioning of the European Union – Protocol (No 1) on the role of national Parliaments in the European Union (OJ C 202, 7.6.2016, pp. 203–205).

The principle of subsidiarity

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WHAT IS THE AIM OF THE ARTICLE AND THE PROTOCOLS?

KEY POINTS

MAIN DOCUMENTS

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