Subsidiarity in Europe

How subsidiarity works in the European Union

[7-11-01]

The principle of subsidiarity made its entry into European law in Article 3B of the Maastricht Treaty of 1992, which promises:

In areas that 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.

This sentence was preceded by one that limited the Community to the powers conferred on it by the Treaty, and was followed by one that said that "any action by the Community shall not go beyond what is necessary to achieve the objectives of this treaty."

This article was inserted largely at the insistence of Bavaria, one of the states in the German Federal Republic. Traditionally Catholic and conservative, Bavaria's main goal seems to have been to limit the activities of the EU and even to deprive it of some of its powers. Germany, as a federal republic, also leaves certain powers to the individual states or Lände, while France remains highly centralized. Regional autonomy has been growing in Spain, Belgium, and now even Great Britain. So there are questions not only about the sovereign states but about regions within them. The European Community is still a "confederation," even though it is gradually gaining a de facto authority of its own; by contrast the European Parliament has "federal" status, but it has little power.

It is surprising that a term coming out of the tradition of Catholic political thought and advocated by the most powerful Catholic Land in Germany was inserted into the treaty without definition. It has given rise to endless debate - political, legal, and theoretical. A search of library resources turned up at least twenty books or monographs touching on the theme; a search of the web will turn up additional papers, including some from the incumbent of the Jean Monnet Chair at Harvard. When economists get into the act, their analysis, predictably, is carried out in terms of market interactions, very often leading to the conclusion that it is better to leave matters to competition than to high-echelon legislation.

Against this marketizing of all questions, we ought to reassert the origins of the principle of subsidiarity in political theory as a way of ensuring not only efficiency but some kind of justice, both procedural and distributive or restorative, and that other hallmark of contemporary Catholic political and social theory, participation and accountability.

The negative function is, to be sure, one implication of the principle of subsidiarity, expressed in Article 3B by the "only if" test of EU action. A burden of proof is placed on those who advocate action by the more central body. But along with the negative goes a positive, for the "in so far as" test envisages the possibility that the Community may well be in a better position to act. In this sense it opens the way to a reallocation of authority "upward" in the levels of government.

Finally, we must constantly remind ourselves that governmental matters are rarely limited to "bottom up" versus "top down" procedures; there are constant interactions between levels of government, and interactions cannot be limited to economic competition or political bargaining. One interaction will be that which is at the core of the principle of subsidiarity, that the more central government is to "aid" the national and local governments to do their work more efficiently and justly; to put it another way, the central authority must generate the conditions under which the more local bodies can fulfill their roles. Moving in the reverse direction, it should also be accountable to them, of course -- and in more ways than merely giving in to what some politician or lobbyist thinks is their self-interest.

One recent study, while strongly market-oriented, does a better job analyzing the issues than most, probably because it is a team product, not a collection of essays (Making Sense of Subsidiarity: How Much Centralization for Europe? Center for Economic Policy Research, 1993). The recommendation of this study is, in brief, to decentralize where possible; coordinate where necessary; and to centralize only when this is the only way to accomplish a desirable result. The study, by the way, finds this to be especially applicable in the case of environmental regulation, since these matters are rarely confined by political boundaries.