For over 15 years, the principles of subsidiarity and proportionality have increasingly guided EU legislative activity. They are at the origin of all EU legislative activity and are among the essential ruling principles of the Union's organisation. The Treaty of Maastricht introduced the principle of subsidiarity into the EC Treaty as a general principle applicable to all areas of non-exclusive competence (see Article 5 TEC).

The purpose of the subsidiarity principle is to ensure that decisions are taken at the closest possible level to citizens, by verifying that there is a clear benefit in taking the action at Union level rather than at national, regional or local level. Specifically, it is the principle whereby the Union does not take action (except in the areas which fall within its exclusive competence) unless it is more effective than action taken at national, regional or local level. It is closely bound up with the principle of proportionality, which requires that any action by the Union should not go beyond what is necessary to achieve the objectives of the Treaties.

Global approach

In accordance with the conclusions of the Birmingham European Council of 16 October 1992, the Edinburgh European Council of 11 and 12 December 1992 set out a global approach for applying the principle of subsidiarity. That global approach was, to a large extent, supplanted by the Protocol on the application of the principles of subsidiarity and proportionality annexed to the EC Treaty by the Treaty of Amsterdam, which among other things establishes detailed criteria for the application of the principle of subsidiarity by the Community institutions participating in the legislative procedure.

Obligations for all EU institutions

The protocol requires all EU institutions to comply with the subsidiarity principle. The primary responsibility lies with the Commission, which is required to substantiate its legislative proposals having regard to the principle of subsidiarity. Throughout the legislative process, the European Parliament and the Council are also obliged to comply with this principle, especially in the amendments they present to the original proposal. Furthermore, the Commission is required to submit an annual report on the implementation of Article 5 of the Treaty to the European Council, the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

Maastricht and Amsterdam Treaties - unsatisfactory results

However, the introduction of the subsidiarity principle into the treaty and the adoption of the Protocol on the application of the principles of subsidiarity and proportionality have failed to yield the expected results. The Laeken Declaration of December 2001 clearly drew attention to the Union's shortcomings in this matter, making compliance with the subsidiarity principle and better allocation of powers within the European Union a priority in the reform process. The constitutional debate on subsidiarity and proportionality led to the adoption of a revised framework for these two principles by the European Convention on the future of Europe (2002).

Thus, the draft Treaty establishing a Constitution for Europe proposes a new definition of the subsidiarity principle recognising for the first time the local and regional dimension, and stronger mechanisms for implementation and monitoring in the framework of a new protocol. However, further to the referenda on the Constitution in France and the Netherlands, the European Council decided not to pursue the ratification of the Treaty establishing a Constitution for Europe.

The Treaty of Lisbon, now entered into force, includes the bulk of the improvements prepared by the members of the 2002 European Convention. Subsidiarity monitoring is thus already an integral part of the good management of public affairs under current European law, with a central place allocated to the Committee of the Regions in the multilevel governance system.

 

The Treaty of Lisbon largely answers the concerns of the Committee of the Regions, reiterated over the last fifteen years at each reform of the institutions and clearly expressed in the many CoR opinions drawn up on this subject. This is a tangible success of the Convention process and the active participation of the CoR delegation in the work of the European Convention, in its plenary session and working groups (particularly the working group on subsidiarity). The Treaty of Lisbon sketches out new prospects for the implementation and monitoring of subsidiarity and proportionality at Union level.

Among the innovations of the Treaty of Lisbon which have a direct impact on the Committee of the Regions and local and regional authorities, reform of the subsidiarity and proportionality principles in particular should be mentioned. The provisions of the treaty recognise for the first time the sub-national level in defining the principle of subsidiarity.

It is important to link this confirmation, expected by the Committee of the Regions since the Treaty of Maastricht, with the recognition of local and regional self-government as key features of the Union. In short, the new allocation of competences must also be considered to be progress, since it presupposes a new way of reading the distribution of powers within the Union.

The direct consequence of these features being enshrined in the treaty can be found in the revised Protocol on the application of the principles of subsidiarity and proportionality, which for the first time explicitly includes the Committee of the Regions and local and regional authorities as an integral part of the Community structure as regards application of the subsidiarity principle.