Subsidiarity
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The principle of subsidiarity was a move to placate those who feared that the TEU marked a move towards a federal Europe.  Art. 5 EC defines the use of subsidiarity, but the meaning of the word itself is unclear.  Subsidiarity only applies to areas outside the exclusive competence of the EC.  There is a division over whether a narrow (so subsidiarity would apply to many situations) or a wide view of "exclusive competence" should be used.  Toth advocates the wide view (e.g. subsidiarity cannot apply to any matter covered by the original EEC Treaty), Steiner advocates the narrow view - Community has exclusive competence in areas in which it has already legislated.  Competence of MS ends not, as Toth has suggested, where the competence of the Community begins, but where its powers have been exercised.  Possible argument is that exclusive competence begins where the Community has a duty to act.

Formulation of subsidiarity:

(1)  Action must only be taken if MSs cannot achieve as good a result alone;

(2)  Usually due to the scale/effects of the measure;

(3)  In any event, the action should not go beyond what is necessary to achieve the aims of the Treaty.

(1)  & (2) = a test of comparative efficiency (is it better for the action to be taken by the

Community or the MSs?)

(3) = proportionality test

Protocol on Subsidiarity (attached to ToA):

·         Proposed legislation must have a justification in terms of subsidiarity

·         Annual report on Art. 5 EC

·         Framework directives preferred to regulations (para 6) - aims for simplicity

·         Amendments by Council or EP must be justified in terms of subsidiarity

·         Confirms that subsidiarity only applies where there is no exclusive competence

There may be problems when reviewing Art. 5EC in the ECJ.  High-intensity scrutiny would introduce socio-economic factors concerning the most effective level of government for regulatory tasks and politicise the debate.  Low-intensity scrutiny would undermine the usefulness of the provisions of Art. 5 EC.

Other Notes in this Category

1. Competence and Legal Basis
2. Court-Made Sources of EU Law
3. Flexible/Variable Geometry
4. Fundamental Rights
5. General Legislative Processes
6. Legislation
7. Subsidiarity

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