Implementing the Subsidiarity Principle

5 Colum. J. Eur. L. 369 (1999)

Reimer von Borries. Ministerialrat, Division for the Law of the European Union, Europe Department of the Federal Minsitry of Finance, Berlin, Germany; LL.M. ’71 Columbia Law School; Honorary Professor of Law, University of Osnabruck, Germany.

Malte Hauschild. Oberregierungsrat, Division for the Law of the European Union, Europe Department of the Federal Ministry of Finance, Berlin, Germany; Dr. jur., University of Hamburg 1995.


Since its introduction in 1993 into the European Union by the Treaty of Maastricht, the “subsidiarity principle” has captured the attention of an increasing number of legal scholars, political scientists, and economists, and has been the subject of dozens of publications, inside Europe as well as outside. The term “subsidiarity” has, however, misled many authors who have presented extensive studies on the “subsidiary function” which plays a central role in the social philosophy of the Catholic church. Many of these publications fail to recognize that the subsidiarity principle as laid down in Article 3(b)(2) of the EC Treaty, rather than being a socio-philosophical doctrine, is a principle of constitutional law. It concerns the relationship between the European Community and its Member States and not the structure of society. Its practical aim is not to “re- nationalize” Community competencies but to prevent an overcentralization of power at the EU level and to thereby ensure the acceptance of the EU among the citizens. At its core, the subsidiarity principle of the EC Treaty is simply a rule for the rational exercise of Community competencies. Article 3(b)(2) of the EC Treaty contains no meaning other than this rule. The term “subsidiarity principle” is thus no more than a succinct expression of the rule of Section 2 of this Article. More important than its controversial philosophical aspects, therefore, is its application in practice.

If the real issues arising from the provision are not of a theoretical but of a practical nature, the analysis must turn to the problems of its application in the everyday business of Community lawmaking to procedures, criteria, evaluation, and effects. Up to this point, only a few authors have taken a close look at the practical application of the subsidiarity principle to specific regulations or particular areas of regulation and at the review procedures applied on the Community level and in the Member States.4 Besides, the recent efforts to put the subsidiarity principle into more concrete terms should receive appropriate attention. The following article therefore addresses three aspects of the practical application of the subsidiarity principle in the Community. First, the current understanding of its meaning will be explained on the basis of the provisions of the Subsidiarity Protocol to the Treaty of Amsterdam. Thereafter, the subsidiarity review procedure in Germany will be described as an example of Member States administrative practice. Eventually, the efforts of the European Commission and its annual report “A Better Lawmaking” will be discussed. The article will close with some suggestions to improve further the practical application of the subsidiarity principle on the Community level.