Marius Niculae

Subsidiarity in the EU

During the last two decades the EU has gained more and more competences to formulate public policies. This happend within a broader process of sharing sovereignty and legitimacy with the Member States.

In a nutshell, the subsidiarity principle says that “in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States”[1]. From my last trip to Brussels two important takeaways are still fresh in my mind: 1) the principle does not necessarily mean that the decisions affecting the lives of the EU’s citizens must be taken at local level; 2) in practice, decisions are always influenced by different of stakeholders and the existence of several layers of policy making.

In other words, things are not as easy to asses as the principle may suggest. From the legislative point of view the EU has the institutional capacity to independently develop different sets of legislation. However, for the simple citizen it is very complicated to understand the way in which the EU legislation acts as a response to its needs.

More exactly, if the EU decides to intervene in the name of the subsidiary principle one should not conclude that a certain state had failed to enforce it. Moreover, it can be wrong to assume that the EU can automatically provide a better “democratic treatment” for the citizens of a Member State. One explanation could be that the EU expansion results in an increased number of policy areas subject to its decision making capacity.

Most probably, the next European Treaty will take the EU projects a step closer to a political union by setting up a common fiscal framework. In terms of sovereignty and legitimacy such a Treaty will be the equivalent to a transfer of powers from the Member States to the EU.

Subsidiarity is constantly negotiated as part of the legislation between the Member States and the EU’s main institutions. However, these institutions – the European Council, the European Commission, and the European Parliament – have, at the same time, executive and legislative powers.

With such a wide variety of stakeholders it is difficult to identify the institution having the legal capacity to formulate public policies that directly affect the citizens of the Member States. Some authors even argued that the EU constitutes the first “truly postmodern international political form” due to the “messy and ambiguous’ fusion of competence” that has no fixed viewpoint[2]. In this case, subsidiarity is always negotiated within this confusing legal framework. The subsidiarity principle can be invoked by the citizens in order to determine the EU to act against some of the Member States’ authoritarian behavior or it can be self assumed in order to solve technical and urgent problems like the Euro crisis.

The recent bail out is an example of applying the principle of subsidiarity: the EU’s intervenes in policy areas where some Member States have already failed. However, the EU has also been accused of breaching this principle in the alleged authoritarian and discretionary exercise of power of the Hungarian and Romanian governments and their violation of rule of law in the years of 2011-2012. The EU made several clear policy recommendation for each of the two Member States and while Romania accounted for these indications Hungary did not. The latter accused the EU of political interference with the internal business of a Member State.In this context, the EU seemed as not being capable to fully endorse some of its constraining instruments such as to suspend Hungary’s vote in the Council or to cut its access to EU funds.

Starting from these two different approaches of two of States I consider it is worth reflecting on the relation between the EU’s democratic deficit, meaning the relation between the EU institutions and the citizens of the Member States, and the enforcement of the subsidiarity principle, i.e. the EU’s capacity for policy making versus the sovereignty margins of the Member States with direct consequences on people’s lives.

[2] Jensen O. & Richardson T. Making European Space…, op.cit, p 31


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