Subsidiarity (principle of)

Subsidiarity in the current sense is the idea that those closest to the action to be carried out must do so rather than the one who is far from it, because the latter is on the one hand less legitimate to do so and on the other hand less effective to do so. Subsidiarity is therefore a mechanism of both efficiency and legitimacy. In this respect, it constitutes both a political and a management principle: it is a principle of governance.

It is also found in the form of a legal principle in European Union law, with a strong impact in Regulatory Law.

Indeed, the principle of subsidiarity is a pillar of the European Union. Article 5 of the Treaty states that the power which enables public authorities to act legally by setting standards and by coercion is and remains with the Member States. But - and this is the very meaning of the Treaty which founded the Community, then the European Union - powers and objectives have been conferred on the European Union. In a first formulation, it was stated that within the "limits" of these "competences" and these "objectives", the European Union (as a legal person endowed with powers) and its institutions - in particular the Commission - can to act.

The first meaning of the principle of subsidiarity is therefore that which one could say of a "sovereignty retained" by the Member States: everything that is not vested in the European Union is retained by the Member States. But we can see that as much as it is easy enough to define the "limits of competences", the line is less certain concerning the "objectives". Indeed, the "objectives" conferred on the Union are so broad that, depending on the interpretation given by the Court of Justice of the European Union (CJEU), there may not be much left of the principle of subsidiarity. This is why the text was completed, a principle indicating more of a method.

Indeed, the Treaty firstly states that in certain matters the European Union has "exclusive competence". It is also exceptional, since it is vested in the Member States. This mainly concerns customs jurisdiction outside the Union, monetary jurisdiction outside the euro zone, competition law and common commercial policy. In this case, the European institutions exercise their full normative powers. When this transfer has not taken place, the European Union is no longer prima facie legitimate, that is to say its institutions cannot act since the Member States remain the legitimate authors of the standards. But if it turns out that the European Union is best placed to effectively achieve the desired objectives, even if there is no transfer of exclusive competence to the Union, then if the European institution can provide this proof that it is "better placed" to act effectively, it will be able to act.

Completed, Article 5 of the Treaty now provides: By virtue of the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union intervenes only if, and to the extent that, the objectives of the action envisaged cannot be sufficiently achieved by the Member States, both at central, regional and local level, but may be better achieved, due to the dimensions or effects of the envisaged action, at the level of the Union.

The end of Article 5 is above all methodological: the method of comparing the effectiveness of the action of a Member State - for example a law - and the action of a Union institution - for example a draft Regulation drawn up by the European Commission. When the two claim to be the most effective in achieving the Community objective - for example - energy security, then the question of the burden of proof arises.

This is where the principle of subsidiarity takes all its power, which is above all proof: it is indeed for the European Union, in the above example the European Commission - to demonstrate that it is proved its project for an instrument (here an energy security regulation) which will be more effective in serving the objective, which the Member State could not achieve alone. A very heavy burden of proof for the Union and numerous objects of proof: the inability of the Member State to achieve this objective and the capacity of the Union to achieve it. If the Union provides this proof, then, even if there has not been a transfer of exclusive competence to its benefit, it will be able to act and lay down the principle that in Europe the normative power remains in the Member States.

The legal principle of subsidiarity is essential in Regulatory Law. Indeed, because of its link with Politics, sectoral regulations are generally not transferred exclusively to the level of the European Union. This is why, strictly speaking, there are no "European regulators", but rather agencies which centralize information and its access. However and to take the most topical example, the need generated by the financial and banking situation in Europe justified the regulatory, supervisory and institutional mechanisms being brought to community level by the Banking Union, from 2010. But we do not find the same transfers, for example in energy, rail or telecommunications, which would undoubtedly contradict the legal principle of subsidiarity.