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| 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.
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