Subsidiarity in article 3b of the Ec treaty—gobbledegook or justiciable principle?

International and Comparative Law Quarterly

Volumn 45, Issue 2, 1996, Pages 431-439

  Harrison, Virginia ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 84937273995     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S002058930005908X     Document Type: Article

References (46)

1. The concept was not new, either to European thought in general (it has been traced back to Aristotle—see A. Beale and R. Geary, “Subsidiarity Comes of Age” (1994) 144 N.LJ. 12), or to the Community. It can e.g. be detected in the concept of the directive, “binding, as to the result to be achieved, upon each Member State to which it is addressed, but [which] shall leave to national authorities the choice of form and methods” (Art.189 EC). Moreover, it was incorporated into the Treaty itself, though in a different form and in relation only to the environment, by the Single European Act 1986 as Art.l30r(4). This provision was superseded by the TEU.
2. The significance of the addition of “only” is discussed infra nn. 12–14.
3. The European Council meeting at Edinburgh in 1992 produced the Edinburgh Guidelines (BulI.E.C. 12–1992)
4. the Commission provided a report on the principle to that summit (SEC(92)1990 Final, 27 Oct. 1992)
5. subsequently reported on its own consideration of existing legislation and of proposals for legislation (COM(93)545,24 Nov. 1993
6. COM (94)533,25 Nov. 1994)
7. Parliament's Committee on Legal Affairs and Citizens' Rights issued an opinion in Mar. 1994 (PE 208.185/fin). This activity culminated in an Inter-institutional Agreement coming into force, with the Maastricht Treaty, on 1 Nov. 1993 “on procedures for implementing the Principle of Subsidiarity”.
8. The procedures are explored in the article by Toth, “Is Subsidiarity Justiciable?” (1994) 19 E.L.R. 268 and can be divided into direct actions, principally under Art.173, and preliminary references from national courts under Art.177.
9. Lord McKenzie-Stuart, “A Formula for Failure”, The Times, 11 Dec. 1992.
10. “Economic and Monetary Union and Political Union”. Session 1989/90,27th Report, para.165.
11. Report of the Foreign Affairs Committee, “Europe after Maastricht”, HC 205 1992–1993, p.36.
12. House of Lords Select Committee Report, “Political Union: Law Making Powers and Procedures”, Session 1990–91,17th Report, paras.57 and 58. In that draft the relevant part of the clause had read “the Community shall only take action, in accordance with the principle of subsidiarity, if and in so far as those objectives can be better achieved”.
13. See Case 106/77 Simmenthal(2) [1978] E.C.R. 629
14. Factortame v. Secretary of State for Transport [1991] 1 All E.R. 70.
15. See All E.R.
16. SEC(92)1990 Final, 27 Oct. 1992
17. see SEC.
18. The issues are not always as clear cut as this suggests. The objective of a particular measure may be debatable. E.g. in the Titanium Dioxide case (Case C-300/89 Commission v. Council [1991] E.C.R. 1–2869) the Court acknowledged that Directive 89/428/EEC on procedures for harmonising programmes for the reduction of pollution caused by that industry's waste pursued “the twofold aim of environmental protection and improvement of the conditions of competition”.
19. This has been argued e.g. by Toth in “A Legal Analysis of Subsidiarity”, in O'Keeffe and Twomey (Eds), Legal Issues of the Maastricht Treaty (1994).
20. See SEC(92)1990, Legal Issues of the Maastricht Treaty. under “The subsidiarity principle”, para.II.3.
21. See J. Steiner, “Subsidiarity under the Maastricht Treaty”, in O'Keeffe and Twomey, Legal Issues of the Maastricht Treaty.
22. See para.55 of the 17th Report of the 1990/91 Session, Legal Issues of the Maastricht Treaty.
23. E.g. “We want them to play a constitutional role,” said Sir Christopher Prout MEP, “we do not want them out in political country which is not fair to them”: Legal Issues of the Maastricht Treaty.
24. The Deputy Legal Adviser to the FCO told the same committee that the ECJ President had written formally to the President of the then forthcoming IGC to say that the ECJ was in principle willing to take on the task of adjudicating on subsidiarity (idem, para.57).
25. T. Hartley, The Foundations of European Community Law (1994), p.164.
26. N. Emiliou, “Subsidiarity: an Effective Barrier against the ‘Enterprises of Ambition’?” (1992) 17 E.L.R. 383.
27. Case 5/71 Aktien-Zuckerfabrik Schöppenstedt v. Council [1971] E.C.R. 975 laid down for the first time the limitation on the award of damages to be paid by the Community in cases where the ECJ annulled a Community measure. There had to be a “sufficiently flagrant violation” of a superior rule of law for the protection of the individual. Unlawfulness in itself would not suffice.
28. Failure to specify the precise legal base is an infringement of an essential procedural requirement (Case 45/86 Commission v. Council [1987] E.C.R. 1493).
29. Again in Case 45/86, E.C.R., it was held that the choice of legal base must depend on objective factors which are amenable to judicial review.
30. Case 55/75, [1976] E.C.R. 19.
31. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] K.B. 223. This seminal decision of the Court of Appeal in English administrative law laid down the principle that an administrative decision could be set aside by the court if relevant considerations were not taken into account, if irrelevant considerations were taken into account or if the decision was one which no reasonable authority could have reached. Such decisions are known as “Wednesbury unreasonable”.
32. This point is made by N. Reich, “The ‘November Revolution’ of the Court of Justice: Keck, Meng and Audi revisited” (1994) 31 C.M.L.Rev. 459.
33. He also relies upon Case 2/91 Criminal Proceedings against W. W. Meng (judgment of 17 Nov. 1993) in which the ECJ gave a restrictive interpretation of anti-competitive agreements outlawed by Art.85
34. and upon CaseC317–91 Deutsche Renault v. Audi (juApnenI of 31 Nov. 1993) in which the ECJ found that member States had exclusive competence to define the subject matter of a trade mark.
35. Case 120/78 Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] E.C.R. 649.
36. [1994] E.C.R. 1–5267.
37. See also Appella, (1996) 45 I.C.L.Q. 440.
38. Case 22/70 Commission v. Council (ERTA) [1971] E.C.R. 263
39. Cases 3,4,6/76 Kramer (North East Atlantic Fisheries Convention) [1976] E.C.R. 1279
40. Opinion 1/76 on The Laying-up Fund for Inland Waterway Vessels [1977] E.C.R. 741
41. (1977) O.J. C107/4.
42. Toth, O.J., writing before the opinion was promulgated, had been particularly concerned at the need for the ECJ to allocate competences for “external (Treaty making) powers”.
43. The ECJ stressed (pp.13–14) that where such subject matter fell partly within Community competence and partly within that of member States, close co-operation between them was essential. Member States and the Community institutions had an obligation to co-operate flowing from the need for unity in the international representation of the Community.
44. In 1992 Chancellor Kohl e.g. had expressed dissatisfaction with the evolution of the ECI's case law (EG-Forum des Gemeinschaftsausschusses der Deutschen Gerwerblichen Wirlschaft, 5 Oct. 1992); more recently. Sir Patrick Neill has strenuously urged scrutiny of what he perceives as the judicial activism of a “court with a mission”, which “forms its own view as to the desirable scope of its own jurisdiction”
45. (see “The European Court of Justice: A Case Study in Judicial Activism”, unpublished, 23 Jan. 1995). The ECJ, it is understood at the time of writing, has now made its own submission to the IGC, defending the present scope of its powers.
46. Commission President Santer in an interview with The Times, 4 May 1995, p.14.