Subsidiarity PDF

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SUBSIDIARITY & PROPORTIONALITYPrinciple – Article 5(3) of the TEU : “Under the principle of subsidiarity, in areas which donot fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member St...

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SUBSIDIARITY & PROPORTIONALITY Principle – Article 5(3) of the TEU: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level…”  Article 5(4) TEU: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.”  There is a presumption that member states are competent to handle certain situations concerning issues regarding their shared competences so when they are unable to the EU will have the competence to act

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PROTOCOL (NO 2) provides an accountability measure to ensure the subsidiarity and proportionality are upheld by the EU – o Article 5 of the Protocol: Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality o Early-warning system – this increases the role of National Parliaments: NPs must be informed about all new legislative initiatives  A yellow card arises if at least 1/3 of them view that the proposal infringes subsidiarity & proportionality. The Commission must review the proposal  An orange card will arise if the majority of the NPs view that the proposal infringes the principles of subsidiarity & proportionality. The Commission must again reconsider and it must be approved by the EP & Council  Member states may also challenge legislative acts before the CJEU on the grounds of infringement of subsidiarity under Article 8 of the Protocol & Article 263 TFEU

Key Cases 

EX PARTE BRITISH AMERICAN TOBACCO (2002): “Such an objective cannot be

sufficiently achieved by the member States acting individually and calls for action at Community level, as demonstrated by the multifarious development of national laws in this case … It follows that … the objective of the proposed action could be better achieved at Community level … Second, the intensity of the action undertaken by the Community in this stance was also in keeping with the requirements of the principle of subsidiarity in that … it did not go beyond what was necessary to achieve the objective pursued” 

INTERNATIONAL AIR TRANSPORT ASSOCIATION ET AL V DEPARTMENT FOR TRANSPORT (2006) - “The principle of proportionality, which is one of the general principles of

Community law, requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it…Consequently, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue”...