"Decisions must be taken as closely as possible to the citizen"

J Clive Matthews
8 October 2007
A local EU for local people?

For the last three decades, the issue of subsidiarity has been at the heart of debates over the future of the EU. Following the revisions forced by the initial Danish "no" in the June 1992 referendum on the Maastricht Treaty, the concept has been entrenched - and remains a part of the proposed text of the new Reform Treaty. Maastricht eventually phrased the concept as follows, following the October 1992 meeting of the European Council:

"Decisions must be taken as closely as possible to the citizen. Greater unity can be achieved without excessive centralization. It is for each Member State to decide how its powers should be exercised domestically... Action at the Community level should only happen when proper and necessary."

This, one might assume, is more than explicit enough to assuage fears of the bureaucratic superstate. But no - as that article in the FT Weekend amply demonstrates, the EU machine still seems to have a tendency to try and legislate on all kinds of areas where one might assume that pan-European regulations are entirely unneccessary.

The concept was first raised as far back as 1975's Tindemas Report. Paragraph 12 stated explicitly that "No more than the existing Communities have done so, European Union is not to give birth to a centralizing superstate. Consequently... the Union will be given responsibility only for those matters which the Member States are no longer capable of dealing with effectively."

Despite this, and further efforts to incorporate subsidarity explicitly into EU treaty law with the European Parliament's 1985 Draft Treaty establishing the European Union, it was not until the 1986 Single European Act that subsidiarity first made it into a treaty, and then only relating to the environment - one of the few areas in which most can agree that cross-border co-operation is essential.

The lack of subsidiarity was later one of the reasons the Thatcher government gave for not signing 1989's Social Charter and, as noted, lay at the heart of Denmark's initial rejection of Maastricht. But, for the last fifteen years, it has - technically, at least - been an explicit aim of the EU. The current Commission in particular has repeatedly expressed its intention to increase subsidiarity.

All this makes sense. Subsidiarity lies at the heart of any successful federal system - as seen in the Tenth Amendment to the US Constitution and Article 30 of the German Constitution, both reserving rights to the states/lander.

Taken to its logical extreme, the principle of subsidiarity would surely mean that the EU limits itself to legislating on areas only in which cross-border co-operation and legal unity make sense - like trade, the environment, defence, international terrorism and crime. So why do we constantly hear of stories like that one in the FT Magazine, where EU bodies are trying to meddle in issues as minor and local as car safety?

Increase subsidiarity, a lot of the problems of the EU's democratic legitimacy would begin to fade. The complexity of the European Union would vastly diminish. The ability of the public to understand precisely in which areas the EU has a say would be immeasurably increased.

And yet the new Reform Treaty plans to keep much the same vague wording as has been used ofr years. Rather than explicitly stating which areas fall to the EU, which to the member states, Article 5 remains somewhat confusing:

"the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States...

"Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States."

Clarify just what this means, perhaps the scare stories about the creeping competencies of the EU may diminish, and with them the fears about loss of sovereignty and national parliaments being overruled.

Do that, the issue of democratic consent for the EU as a whole would likewise diminish - for the EU's powers would finally be crystal-clear for the first time in its history, and so its citizens would, for the first time, know just what it is they're voting about when it comes to EU elections. Then exercises like the Tomorrow's Europe deliberative poll, aiming to find out what the EU as a whole thinks, would become unneccessary - as almost all issues could be dealt with at the level of the member states.

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