Reformed Subsidiarity in the Constitution for Europe: Can it deliver on expectations? EIPA Working Paper 07/W/2005

Flynn, Brendan. (2005) Reformed Subsidiarity in the Constitution for Europe: Can it deliver on expectations? EIPA Working Paper 07/W/2005. [Working Paper]

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Abstract

[Introduction]. "Protections for 'subsidiarity' - ensuring that issues are dealt with at the most appropriate level - are weak at best, non-existent at worst: national parliaments are invited to speak up if they think subsidiarity has been flouted, but the European Commission is merely obliged to take note," (The Economist, June 26th-July 2nd, 2004. p.13). "The Economist dismissed the procedure for subsidiarity: but it was wrong to do so. At present, there is no obligation on member states or the European Commission to inform national parliaments about draft EU laws, still less to let them have any power. But under the new provisions all national parliaments must be notified independently of all of the draft laws, and given six weeks to respond. If a third of them object the Commission must 'review' the draft. Yes, in theory the Commission could then re-submit the original proposals un-amended, but in practice they would be unlikely to do so, not least because, if a third of national parliaments are against a proposal, so will be their governments, and the commission would be close to losing the qualified majority needed to pass," (Straw, Jack, 2004, p. 30). I begin my paper here by providing you with two quotes above, that reflect how the subsidiarity principle is becoming one element of at least some of the national ratification debates on the Constitution for Europe. Already considerable expectations about subsidiarity are being advanced, and it is noteworthy that such expectations are decidedly mixed and controversial. For some, the reformed subsidiarity provisions are basically an ineffectual and disappointing sideshow. For others, including the British foreign minister quoted above, the new provisions are a significant and workable approach to what has at times proven to be an elusive and unsatisfying subsidiarity concept. In fact such widely diverging expectations concerning subsidiarity have been a part of its history at the EU level, with heated disagreement and much rhetorical speculation a feature. Moreover, there has been a fashion to impatiently dismiss the idea of subsidiarity as either vague, lacking intellectual depth, or perhaps dangerous for being an 'unknown quantity' (Toth, 1992). Others fail to appreciate that subsidiarity is a concept which has some intellectual depth and it is not as is sometimes confusingly asserted just a ‘catholic’ theory.1 (Norman, 2003, p.94). Can speculation and rancour over subsidiarity be avoided this time around as we face into various national ratification debates? It is perhaps unlikely. However, this paper hopes to make a modest contribution to such an emerging debate through a number of specific arguments. I should note that time and space limit me to only consider here the subsidiarity concept proper, and not the related but distinct concept of proportionality2.

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