The future of European economic law in the light of the principle of subsidiarity

Common Market Law Review

Volumn 33, Issue 4, 1996, Pages 633-666

  Bernard, Nicolas ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

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EID: 0030509692     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.54648/cola1996038     Document Type: Review

References (108)

1. See, inter alia, Constantinesco, "Who's afraid of subsidiarity?", 11 YEL(1991), 33; Emiliou, "Subsidiarity: An effective barrier against 'the enterprises of ambition'", 17 EL Rev. (1992), 383; Koopmans, "The quest for subsidiarity", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers, (Martinus Nijhoff, 1994), vol. II, at p. 43; Lenaerts and Van Ypersele, "Le principe de subsidiarité et son contexte: étude de l'article 3B du Traité CE", 30 CDE (1994), 3; Toth, "The principle of subsidiarity in the Maastricht Treaty", 26 CML Rev., 1053; Wilke & Wallace, Subsidiarity: approaches to power-sharing in the European Community, (Royal Institute of International Affairs, 1990). A long list of further references can be found in Le principe de subsidiarité, proceedings of the sixteenth Congress of the F.I.D.E., vol. 1 (Rome: Consiglio dei Ministri, 1994), particularly at pp. 183-184.
2. See, inter alia, Constantinesco, "Who's afraid of subsidiarity?", 11 YEL(1991), 33; Emiliou, "Subsidiarity: An effective barrier against 'the enterprises of ambition'", 17 EL Rev. (1992), 383; Koopmans, "The quest for subsidiarity", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers, (Martinus Nijhoff, 1994), vol. II, at p. 43; Lenaerts and Van Ypersele, "Le principe de subsidiarité et son contexte: étude de l'article 3B du Traité CE", 30 CDE (1994), 3; Toth, "The principle of subsidiarity in the Maastricht Treaty", 26 CML Rev., 1053; Wilke & Wallace, Subsidiarity: approaches to power-sharing in the European Community, (Royal Institute of International Affairs, 1990). A long list of further references can be found in Le principe de subsidiarité, proceedings of the sixteenth Congress of the F.I.D.E., vol. 1 (Rome: Consiglio dei Ministri, 1994), particularly at pp. 183-184.
3. See, inter alia, Constantinesco, "Who's afraid of subsidiarity?", 11 YEL(1991), 33; Emiliou, "Subsidiarity: An effective barrier against 'the enterprises of ambition'", 17 EL Rev. (1992), 383; Koopmans, "The quest for subsidiarity", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers, (Martinus Nijhoff, 1994), vol. II, at p. 43; Lenaerts and Van Ypersele, "Le principe de subsidiarité et son contexte: étude de l'article 3B du Traité CE", 30 CDE (1994), 3; Toth, "The principle of subsidiarity in the Maastricht Treaty", 26 CML Rev., 1053; Wilke & Wallace, Subsidiarity: approaches to power-sharing in the European Community, (Royal Institute of International Affairs, 1990). A long list of further references can be found in Le principe de subsidiarité, proceedings of the sixteenth Congress of the F.I.D.E., vol. 1 (Rome: Consiglio dei Ministri, 1994), particularly at pp. 183-184.
4. See, inter alia, Constantinesco, "Who's afraid of subsidiarity?", 11 YEL(1991), 33; Emiliou, "Subsidiarity: An effective barrier against 'the enterprises of ambition'", 17 EL Rev. (1992), 383; Koopmans, "The quest for subsidiarity", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers, (Martinus Nijhoff, 1994), vol. II, at p. 43; Lenaerts and Van Ypersele, "Le principe de subsidiarité et son contexte: étude de l'article 3B du Traité CE", 30 CDE (1994), 3; Toth, "The principle of subsidiarity in the Maastricht Treaty", 26 CML Rev., 1053; Wilke & Wallace, Subsidiarity: approaches to power-sharing in the European Community, (Royal Institute of International Affairs, 1990). A long list of further references can be found in Le principe de subsidiarité, proceedings of the sixteenth Congress of the F.I.D.E., vol. 1 (Rome: Consiglio dei Ministri, 1994), particularly at pp. 183-184.
5. See, inter alia, Constantinesco, "Who's afraid of subsidiarity?", 11 YEL(1991), 33; Emiliou, "Subsidiarity: An effective barrier against 'the enterprises of ambition'", 17 EL Rev. (1992), 383; Koopmans, "The quest for subsidiarity", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers, (Martinus Nijhoff, 1994), vol. II, at p. 43; Lenaerts and Van Ypersele, "Le principe de subsidiarité et son contexte: étude de l'article 3B du Traité CE", 30 CDE (1994), 3; Toth, "The principle of subsidiarity in the Maastricht Treaty", 26 CML Rev., 1053; Wilke & Wallace, Subsidiarity: approaches to power-sharing in the European Community, (Royal Institute of International Affairs, 1990). A long list of further references can be found in Le principe de subsidiarité, proceedings of the sixteenth Congress of the F.I.D.E., vol. 1 (Rome: Consiglio dei Ministri, 1994), particularly at pp. 183-184.
6. See, inter alia, Constantinesco, "Who's afraid of subsidiarity?", 11 YEL(1991), 33; Emiliou, "Subsidiarity: An effective barrier against 'the enterprises of ambition'", 17 EL Rev. (1992), 383; Koopmans, "The quest for subsidiarity", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers, (Martinus Nijhoff, 1994), vol. II, at p. 43; Lenaerts and Van Ypersele, "Le principe de subsidiarité et son contexte: étude de l'article 3B du Traité CE", 30 CDE (1994), 3; Toth, "The principle of subsidiarity in the Maastricht Treaty", 26 CML Rev., 1053; Wilke & Wallace, Subsidiarity: approaches to power-sharing in the European Community, (Royal Institute of International Affairs, 1990). A long list of further references can be found in Le principe de subsidiarité, proceedings of the sixteenth Congress of the F.I.D.E., vol. 1 (Rome: Consiglio dei Ministri, 1994), particularly at pp. 183-184.
7. See, inter alia, Constantinesco, "Who's afraid of subsidiarity?", 11 YEL(1991), 33; Emiliou, "Subsidiarity: An effective barrier against 'the enterprises of ambition'", 17 EL Rev. (1992), 383; Koopmans, "The quest for subsidiarity", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers, (Martinus Nijhoff, 1994), vol. II, at p. 43; Lenaerts and Van Ypersele, "Le principe de subsidiarité et son contexte: étude de l'article 3B du Traité CE", 30 CDE (1994), 3; Toth, "The principle of subsidiarity in the Maastricht Treaty", 26 CML Rev., 1053; Wilke & Wallace, Subsidiarity: approaches to power-sharing in the European Community, (Royal Institute of International Affairs, 1990). A long list of further references can be found in Le principe de subsidiarité, proceedings of the sixteenth Congress of the F.I.D.E., vol. 1 (Rome: Consiglio dei Ministri, 1994), particularly at pp. 183-184.
8. See Art. B.
9. For a remarkable example of a constitutional principle, in casu that of a Community based on the rule of law, used to set aside the apparent meaning of a Treaty provision, see Case 294/83, Parti écologiste "Les Verts" v. Parliament, [1986] ECR 1339.
10. Such as the Court's reluctance to extend the scope of exclusive competences (see Weatherill, Law and integration in the European Union, (Clarendon Press, 1995), at p. 143) or its judgment in Joined Cases C-267 & 268/91, Criminal Proceedings against Keck and Mithouard, [1993] ECR I-6097.
11. Such as the Court's reluctance to extend the scope of exclusive competences (see Weatherill, Law and integration in the European Union, (Clarendon Press, 1995), at p. 143) or its judgment in Joined Cases C-267 & 268/91, Criminal Proceedings against Keck and Mithouard, [1993] ECR I-6097.
12. Emphasis is mine.
13. For an overview, see Millon-Delsol, Le principe de subsidiarité, (PUF, 1993), pp. 9-54.
14. Externally because of the absence of a clearly defined CFSP; internally, because of a lack of proper conceptualization of Union citizenship, which appears to be at present little more than a collection of scattered rights. See the cautious assessment of the Commission on both these matters in its Report on the operation of the Treaty on European Union, SEC(95) 731 final.
15. See, inter alia, the Padoa-Schioppa Report on the economic consequences of the third enlargement of the Community: Efficiency, Stability and Equity: A Strategy for the Evolution of the Economic System of the European Community, (OUP, 1987).
16. Art. 2 also mentions the establishment of an economic and monetary union. This, however, is just a particular aspect of policy integration.
17. See Tinbergen, International Economic Integration, 2nd ed. (Elsevier, 1965), pp. 77-79.
18. cf. Marenco's concept of "harmonization au niveau zéro" in "Pour une interprétation traditionnelle de la notion de mesure d'effet équivalent", 20 CDE (1984), 291, at 318.
19. See joined cases C-267 & 268/91, Keck, cit. supra note 4 or case 82/77, Van Tiggele, [1978] ECR 25.
20. See Bernard, "Discrimination and Free Movement in EC Law", 45 ICLQ (1996), 82.
21. On Keck, see Reich, "The 'November Revolution' of the European Court of Justice: Keck, Meng and Audi revisited", 31 CML Rev., 459.
22. See cases C-55/94, Gebhard, [1995] ECR I-4165 on freedom of establishment and C-415/93, ASBL Union Royale Belge des Sociétés de Football Association and others v. Jean-Marc Bosman, Judgment of 15 Dec. 1995, nyr on the free movement of workers.
23. Space precludes us from going into details on this issue. One can note, however, that the solution in Bosman could have been reached on competition grounds and in Gebhard on a traditional interpretation of Art. 52.
24. See case 13/83, European Parliament v. Council, [1985] ECR 1513.
25. Arts. 100 and 100A, which are the main legal bases for the harmonization programme, adopt a somewhat more flexible phrasing, but nevertheless focused on the establishment and functioning of the common/internal market.
26. The emphasis in this interpretation is on: "functioning of the common market".
27. The emphasis would then have shifted onto: "functioning of the common market".
28. See, respectively, case 15/81, Schul v. Inspecteur der Invoerrechten, [1982] ECR 1409, at para 31 and case C-300/89, Commission v. Council (Titanium dioxide), [1991] ECR I-2827, or, more recently, case C-128/94, Hans Hoenig v. Stadt Stockach, [1995] ECR I-3389, at para 17. The issue is discussed further in the next section.
29. For explicit support of such a wide interpretation of the powers of the Community in relation to the internal market, see Chalmers, "Environmental protection and the single market: An unsustainable development. Does the EC Treaty need a title on the environment?" (1995) LIEI, 65.
30. Even Art. 235 has limits, as is shown by the recent holding of the Court that Art. 235 would not be enough to give the Community competence to accede to the European Convention on Human Rights (see Opinion 2/94 of 28 March 1996, nyr).
31. Such as Arts. 222 or 223 EC.
32. The United States or Canada would be examples in point.
33. For a discussion of the issue in the context of company law and capital markets regulation, see Buxbaum & Hopt (Eds.), European Business Law: Legal and Economic Analyses on Integration and Harmonization, (1991).
34. It should be clear that this should not be understood as meaning that a "réserve de souveraineté" (viz. an exclusive competence of the Member States) should apply in relation to market regulation. The idea that any area of national law can be isolated and "immunized" from Community law intervention is foreign to EC Law. Rather, it is a recognition that prima facie, market regulation falls within national competence, although the exercise of those competences might be affected by Community law.
35. Beyond the subsidiarity point, such a wide understanding of internal market harmonization would also place severe limitations on the development of Community policies oriented towards other objectives than market efficiency. Chalmers (op. cit. note 22) notes the contradiction between the Community's environmental policy and a "distortion-free" internal market. The provocative title of the article indicates where, in Chalmers's view, the priority should lie. In so far as the Treaty clearly provides for the development of those non-economically oriented policies, it would seem more justified to re-interpret the notion of internal market so as to provide a more coherent interpretation of the Treaty as a whole, rather than decide arbitrarily to sacrifice the development of Community policies to the altar of a particular conception of the internal market which the Treaty does not impose.
36. On the width of the ambit of internal market harmonization understood as requiring the removal of "distortions of competition" between the Member States, see the Titanium dioxide case (cited supra note 21) and Barents's comments in "The internal market unlimited: Some observations on the legal basis of Community legislation", 30 CML Rev., 85. See also the Opinion of A.G. Darmon in case C-155/91, Commission v. Council (Waste Directive), [1993] ECR I-939, at para 11.
37. On competition between rules, see next paragraph.
38. See e.g. the judgments in Case 26/76, Metro v. Commission (No 1), [1977] ECR 1875 (particularly at para 20) or Case 6/72, Continental Can, [1975] ECR 215. For a discussion of the philosophy of Community competition law, see Pelkmans, Market Integration in the European Community, (Martinus Nijhoff, 1984), at pp. 192 et seq.
39. Siebert, "The harmonization issue in Europe: Prior agreement or a competitive process?", in Siebert (Ed.), The Completion of the Internal Market, (1990), p. 53 at 56, 68. More generally on regulatory competition in the Community, see Reich, "Competition between legal orders: A new paradigm of EC Law?", 29 CML Rev., 861.
40. Siebert, "The harmonization issue in Europe: Prior agreement or a competitive process?", in Siebert (Ed.), The Completion of the Internal Market, (1990), p. 53 at 56, 68. More generally on regulatory competition in the Community, see Reich, "Competition between legal orders: A new paradigm of EC Law?", 29 CML Rev., 861.
41. The "Delaware effect" refers to the phenomenon of incorporation or reincorporation of numerous US companies in Delaware, despite very little or no substantial economic connection with that state, so as to benefit from a regulatory environment perceived by companies as more favourable than in other US states.
42. Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein, [1979] ECR 649, at para 8.
43. See case 188/84, Commission v. France, [1986] ECR 419.
44. Case 124/81, Commission v. UK, [1983] ECR 203.
45. See the Commission communication concerning the consequences of the judgment given by the Court of Justice on 20 Feb. 1979 in case 120/78 (Cassis de Dijon), O.J. 1980, C 256/2. For the Council Resolution endorsing the new approach, see O.J. 1985, C 136/1.
46. See the Commission communication concerning the consequences of the judgment given by the Court of Justice on 20 Feb. 1979 in case 120/78 (Cassis de Dijon), O.J. 1980, C 256/2. For the Council Resolution endorsing the new approach, see O.J. 1985, C 136/1.
47. Indeed, Art. 100A(3) requires the Commission to take as a base a high level of health, safety, environmental and consumer protection in its internal market harmonization proposals. See also A.G. Léger's Opinion of 12 March 1996 in case C-84/94, UK v. Council (Working Time Directive), pending, at paras. 51-57.
48. Minimum harmonization is not a generalization of a right to derogate from a harmonized measure, as in Art. 100A(4), but merely establishes a right for the Member States to impose on their own undertakings standards which are higher, without the possibility to oppose free movement. Understood in this way, it should not, as Weatherill fears (op. cit. note 4, at p. 157), be an instrument of protectionism. Nor does it prevent economies of scale, since, by complying with national legislation, the product will automatically satisfy the minimum standard and therefore be marketable throughout the Community.
49. In a company law context, cf. Timmermans in Buxbaum & Hopt (Eds.), op. cit. note 26, at p. 20: "It is somewhat like saying: the economic actors on the Common Market must feel at home with the company law of other Member States because that will facilitate the cross-frontier trading within the Common Market. Personally I think feeling at home with laws of other Member States is something that could apply also to private law in general, the law of obligations or the law of torts. I think we should try to be a bit more specific".
50. Buxbaum & Hopt, Legal harmonization and the business enterprise - Corporate and capital market law harmonization policy in Europe and the USA, (1988) at p. 204, comment that "Legal harmonization can be a palliative for the failure of progress in truly European market integration, particularly if relatively minor side issues are taken up as second best candidates for harmonization and if the dissent over the key issues is camouflaged by harmonization of details and technicalities."
51. Council Regulation 2137/85, O.J. 1985, L 199/1.
52. On the proposed EC Bankruptcy Convention, see Dine, EC Company Law, (Wiley, 1991-95), chapt. 17. Recognition of companies incorporated in another Member State is also a problem, to the extent that the Court seems to have shied away from adopting a full-blown, US-style, principle of freedom of incorporation (see Case 81/87, R v. HM Treasury, exparte Daily Mail, [1988] ECR 5483, at para 23). See, however, the more optimistic view of Tridimas, "The case-law of the European Court of Justice on corporate entities", 13 YEL (1993), 335.
53. On the proposed EC Bankruptcy Convention, see Dine, EC Company Law, (Wiley, 1991-95), chapt. 17. Recognition of companies incorporated in another Member State is also a problem, to the extent that the Court seems to have shied away from adopting a full-blown, US-style, principle of freedom of incorporation (see Case 81/87, R v. HM Treasury, exparte Daily Mail, [1988] ECR 5483, at para 23). See, however, the more optimistic view of Tridimas, "The case-law of the European Court of Justice on corporate entities", 13 YEL (1993), 335.
54. As a result, whereas the latter will be more concerned with public law topics, such as trade regulation, the former will tend to focus on private law, such as company or (intellectual) property law.
55. Dine, "The harmonization of company law in the European Community", 9 YEL (1989), 93
56. In addition, under the principle of subsidiarity, if no more than optional harmonization is needed, no more than optional harmonization should be used.
57. Council Regulation 40/94, O.J. 1994, L 11/1.
58. Clearly Art. 100 would not be enough as it only provides for approximation of laws through the medium of directives. The situation is less clear-cut concerning Art. 100A: taken in isolation, it would seem to provide a sufficient legal basis for other types of measures. Yet, one should note that it is in the chapter of the Treaty on approximation of laws. One could therefore argue that it would not be sufficient where the proposed act is unrelated to approximation and creates new tools which are wholly independent from national law.
59. In Buxbaum and Hopt (Eds.), op. cit. note 26, at pp. 132-133.
60. See e.g. in relation to trans-European networks, Art. 129C(1) second indent, which gives powers to the Council in relation to a specific objective, viz. to ensure the inter-operability of networks.
61. See e.g. case C-280/93, Germany v. Council, [1994] ECR I-4973, at para 47. Paradoxically, this greater effort in defining the objectives of the CAP might have resulted in giving more discretion to the Community, by making it clear that the Community could derogate from other policies in the Treaty such as competition policy.
62. See Arts. 126 (education, vocational training and youth), 128 (culture) or 129 (public health).
63. See case 322/88, Grimaldi v. Fonds des Maladies Professionnelles, [1989] ECR 4407. See also Dine and Watt, "Sexual harassment: hardening the soft law", 19 EL Rev (1994), 104, at 106-107
64. Commission Recommendation 92/131/EEC, O.J. 1992, L 49/1.
65. For instance, the criterion of comparative efficiency is likely to have a more centralizing effect than the criterion of insufficiency of Member State action. For an illustration of the different consequences of relying on one criterion or another, see Toth, op. cit. note 1, at 1097-1098.
66. Op. cit. note 6, at 109.
67. SEC (92) 1990 Final.
68. See J. Bridge, "Procedural aspects of the enforcement of EC law through the legal systems of the Member States", 9 EL Rev (1984), 28.
69. Opinion 1/75, [1975] ECR 1355, at 1364.
70. Case 41/76, [1976] ECR 1921, at para 32.
71. See Gilsdorf, "Portée et délimitation des compétences communautaires en matière de politique commerciale", (1989) RMC 205.
72. See Opinion 1/94 on various agreements relating to the establishment of the World Trade Organization, [1994] ECR I-5267 and, even more recently, case C-83/94 Criminal Proceedings against Peter Leifer and others, [ 1995] ECR I-3231.
73. Viz. the phenomenon of goods entering the Union via the point of least resistance (and once there circulating within the Union) rather than following "natural" flows determined purely on non-distorted economic considerations. See Robson, The Economics of International Integration, (Allen & Unwin, 1980).
74. Case 41/76, cit. supra note 60, at paras. 27-28. See also case 51/87, Commission v. Council (Re: Generalized Tariff Preferences), [1988] ECR 5459.
75. See Art. 21(2) of Regulation 4064/89/EEC, O.J. 1989, L 395/1.
76. Case 14/68 Walt Wilhelm v. Bundeskartellamt [1969] ECR 1. The case was recently followed by the CFI in case T-149/89, Sotralentz SA v. Commission, [1995] ECR II-1127.
77. On the relationship between supremacy and competence, see below on pre-emption.
78. See Walt Wilhelm, cit. supra at note 66, at 14.
79. Under the terms of Art. 85(3), both individual and block exemptions concern agreements which, inter alia, "contribute to improving the production or distribution of goods or to promoting technical or economic progress". See the discussion of the issue in Goyder, EC Competition Law, 2nd ed. (Clarendon Press, 1993), at pp. 431-437, particularly at pp. 433-434.
80. Cited supra note 31.
81. For a discussion of the issue, see Loy, "L'application en France du droit communautaire de la concurrence", 16 RTDE (1980), 438, at 457.
82. See e.g. Regulation 1984/83 on exclusive purchasing agreements, O.J. 1983, L 173/5, recital 19, in which the Commission expresses the view that Member States can impose a shorter duration for certain agreements than that specified in the regulation.
83. One may in particular wonder whether it would not be appropriate to reason by analogy with case T-51/89, Tetrapak v. Commission, [1990] ECR II-309.
84. On this problem, see case T-149/89, cited supra note 66.
85. See Art. 106(3).
86. See Art. 109 EC. On the whole issue of Economic and Monetary Union in the Treaty on European Union, see Pipkorn, "Legal arrangements in the Treaty of Maastricht for the effectiveness of the Economic and Monetary Union", 31 CML Rev., 263.
87. [1979] ECR 2923.
88. Ibid, at para 30.
89. See case 41/76, Donckenvolcke, cited supra note 60, at paras. 26-28.
90. [1974] ECR 121.
91. Case 60/86, Commission v. UK, [1988] ECR 3921.
92. Cross, "Pre-emption of Member State Law in the European Economic Community: a framework for analysis", 29 CML Rev., 447, at 463 et seq.
93. An indirect conflict occurs where a national norm interferes with the proper operation of Community law, in particular in the context of common organization of agricultural markets. Cross refers to this as "obstacle-conflict" rather than indirect conflict.
94. Indeed, part of the reasoning of the Court in Case 106/77, Amministrazione delle Finanze v. Simmenthal, [1978] ECR 629, one of the leading cases on supremacy, follows a competence/pre-emption logic: at para 17, the Court stated that the principle of supremacy of Community law "preclude[d] the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions" (emphasis is mine).
95. Directive 68/151/EEC (First Company Law Directive), J.O. 1968, L 65/8.
96. See the Padoa-Schioppa Report, cit. supra note 8, at p. 60 et seq.
97. See Case 31/74, Galli, [1975] ECR 47.
98. Ibid. at para 34.
99. The Padoa-Schioppa Report notes, in this respect, that the orientation of the CAP has been more towards redistribution than allocation of resources, and that the Community is far less well suited to distributive policies than the Member States. (op. cit., at 102-103). The current tendency, under international pressure, to move away from price guarantee mechanisms may increase the need for more precisely targeted redistribution policies at the level of individuals and smallholdings, for which the Member States are better placed.
100. Cf. Jacqué's Community Report to the sixteenth FIDE Congress in Le principe de subsidiarité, op. cit. note 1, at 29: "...l'application du principe n'est exclue que pour les compétences qui revêtent un caractère exclusif en vertu du traité lui-même."
101. See, inter alia, Weatherill, op. cit. note 4; Koopmans, op. cit. note 1; Toth, op. cit. note 1.
102. cf. Weiler's remarks on the importance of values and ideals in European Integration: "Fin-de-Siècle Europe", in Dehousse (Ed.), Europe After Maastricht - An Ever Closer Union?, (Beck, 1994), at p. 203 et seq.
103. It seems to us that Lenaerts and Van Ypersele (op. cit. note 1, at 8-10) underestimate the function of subsidiarity in this context: they see it as a purely political, non-legal principle. This, however, would ignore the fact that it can be used very effectively as a tool of interpretation.
104. See Weatherill, op. cit. note 4, at 171.
105. Such as the Protocol on Social Policy annexed to the Maastricht Treaty.
106. Dine (op. cit. note 45, at p. 96) counted no less than 41 ways to comply with Directive 78/660/EEC (Fourth Company Law Directive) O.J. 1978, L 222/11.
107. Dine (op. cit. note 45, at p. 96) counted no less than 41 ways to comply with Directive 78/660/EEC (Fourth Company Law Directive) O.J. 1978, L 222/11.
108. See Art. 100A(4).