The gap between political and judicial subsidiarity

JCMS |

by Ton van den Brink (Utrecht University), Martijn Huysmans (Utrecht University) and Philippe van Gruisen (Leiden University)

The subsidiarity principle, which says the EU should not overreach and leave as much freedom as possible to the Member States, got a real boost from the Treaty of Lisbon. Nonetheless, a significant gap between the political and the judicial dimension of the principle has emerged. In a new article published in JCMS, we demonstrate that Member States approach ex-ante political subsidiarity checks and ex-post judicial reviews differently. This creates a gap between the two. The mitigating role of the Council partly explains this gap. However, the Court’s reluctance to apply subsidiarity in a meaningful way widens this gap even further. Some Advocate-General opinions demonstrate how the connection between political and judicial subsidiarity could be strengthened.  This would give more substance and meaning to the principle which is designed as a core principle of the EU.

Political and judicial subsidiarity

Subsidiarity has become a core principle in the EU to counterbalance centralizing tendencies, especially since other such principles and mechanisms are largely absent. The Treaty of Lisbon reinforced the political and the judicial dimension of the principle. Not only the EU’s political institutions must apply subsidiarity, but national parliaments are now equally involved in subsidiarity-based decision-making. This political dimension is complemented by the power of the EU Court of Justice (CJEU) to annul legislation after its adoption when it conflicts with subsidiarity. Member States have the right to initiate proceedings to that end.

Connection between the two?

One would logically expect a strong connection between political and judicial subsidiarity, especially from the perspective of the Member States. It seems indeed reasonable to expect that Member States, expressing concerns about legislative proposals for violations of subsidiarity, might take the matter to Court if the legislation has still made it into the Official Journal. Similarly, one may expect that the same arguments and considerations would play a role in both dimensions. Subsidiarity is a rather subjective principle. It does not provide decision-makers with clear criteria defining when Member States are unable to ‘sufficiently’ achieve the objectives of proposed legislation, and when the EU is instead ‘better’ suited to take action.

Or a weak link?

However, from the outset such a direct connection between political and judicial control of subsidiarity must already be qualified. For example, a legislative proposal may be amended in such a way that renders the concerns of national parliaments obsolete. Likewise, political preferences may change, whether as a result of national elections or other important external events. The Netherlands, for instance, embraced the European Public Prosecutor’s office after initial resistance.

Findings

Even when taking such qualifications into account, the connection between political and judicial control is still much weaker than expected. Only some Member States demonstrate similar behavior in both the political process and in their interactions with the Court (see Table 1). In contrast, other Member States may be very active in the political process – by means of their national parliaments issuing a lot of subsidiarity complaints – but may rarely challenge the legality of legislation before the Court.

Table 1 Ex-ante and ex-post subsidiarity activity.

Table Notes: the EWS or Early Warning System is the system where National Parliaments can oppose new Commission proposals on grounds of subsidiarity.

Explaining the weak link

How to explain this weak connection? First, the Council plays a mediating role. Compromises between Member States may be struck which may take away initial concerns. As such, it functions as a ‘subsidiarity arena’ that may make recourse to the Court unnecessary. Equally important, however, is the Court of Justice’s reluctance. It has thus far never annulled legislation for violation of the subsidiarity principle. Although it now assesses substantive arguments on their merits to some extent, it stills leaves considerable discretion to the legislature and supports arguments in favour of EU action. The Court’s Advocate-Generals are largely on the same track, but not quite: some of their opinions involve substantive and comprehensive subsidiarity assessments that could actually provide specific and concrete tools for national parliaments to substantiate their subsidiarity claims. If the Court were to adopt such approaches, the gap between the political and judicial dimension of subsidiarity would be considerably closed. This would make its application easier and more predictable. Moreover, the principle itself would gain more substance, and thus more meaning, fitting its importance as a core principle of the EU.


Ton van den Brink is professor of EU Legislative Studies at the School of Law, Utrecht University. His research focuses on Institutional and constitutional aspects of EU law; he is a member of the management board of the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE) and program leader of the LLM in EU law. You can follow Ton on Twitter and Linkedin.

 

Martijn Huysmans is an Associate Professor at the School of Economics, Utrecht University. He conducts research on the political economy of the EU and teaches in the Politics, Philosophy, & Economics (PPE) bachelor program. You can follow Martijn on Twitter and Linkedin.

 

 

Philippe van Gruisen is a political economist who specializes in EU policymaking. He is an assistant professor at the Economics Department at Leiden University and a visiting professor of European integration at the Faculty of Economics and Business at KU Leuven. You can follow Philippe on Linkedin.