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Subsidiarity as a Guiding Principle for European Community Activities*

Published online by Cambridge University Press:  28 March 2014

Karlheinz Neunreither
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Extract

Maastricht Has Put Subsidiarity in The Forefront OF European Community (EC) guidelines. This new principle will allow the EC to take action wherever competences are shared in those areas where the member states cannot sufficiently achieve its objectives, but not beyond. The new Article 3b 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, 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.

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

Type
Original Articles
Information
Government and Opposition , Volume 28 , Issue 2 , 01 April 1993 , pp. 206 - 220
Copyright
Copyright © Government and Opposition Ltd 1993

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Footnotes

*

The views expressed in this article are the personal views of the author and do not reflect those of the institution for which he works.

References

1 See: The Principle of Subsidiarity, Communication from the Commission to the Council and the European Parliament DOC (SEC(92) 1990 final, 27 Oct. 1992.

2 The English version of official texts (e.g. the Communication of the Commission, see footnote 1) uses both‘powers’ and ‘competences’ in a completely mixed way. One may suggest that ‘competences’ would refer to the areas of possible action (agriculture, economic policy, etc.), whereas ‘powers’ would refer to the means and instruments (laws, regulations, etc.). This would open, of course, a discussion on the legal instruments at the disposal of each governmental level, which are quite distinct. Where competences are shared, powers (at least to some extent) would also be shared, even if action on one level might reduce the possibility of action for another (usually the lower).

Art. 3b in its second paragraph only speaks of ‘competences’. French (compétences) and German (Zuständigkeiten) versions follow this use very strictly. We could leave it at that if the basic question involved was not more complicated: despite the declarations of the Commission, Art. 3b contains possible elements both of conferment of competences (in which areas EC interventions are needed to achieve the agreed upon objectives) and of the limitations of exercise of power (the question of intensity and proportionality). But here the Commission speaks explicitly of ‘exercise of competences’ and adds even more to the original irritation.

3 There is no list of exclusive competences of the member states. Whatever area is not listed as an exclusive or shared EC competence falls under their exclusive authority. The same is, by the way, the case for federal systems like the USA or Germany where the competences of the federal authorities are limited in a detailed way by the constitution and it is assumed that all the rest remains under the direct authority of the constituent members (the US states or the German Laender). Despite these constitutional precautions, the areas of federal involvement have substantially increased over the last decades, often under the pressure of the ‘power of the purse’. The EC, obviously unable to agree on precise limitations of the various areas of competence, is likely to face major internal conflicts, the more it advances into economic and monetary union.

4 It is interesting to note that the draft version ‘by the Member states acting separately’ which was suggested by the EP (reports Spinelli 1984, Giscard ?Estaing, and Martin, 1980) has not been included in the final text. The attempt to block the way to confederal cooperation in the areas of shared competences has therefore failed.

5 See for the following the EP's report on the subject: report by Ian White, PE 202.658/fin.