.
Skip to content.
Skip to content.
Meetings Calendar 2006
January
.
February
.
March
.
April
.
May
.
June
.
March
  Mo Tu We Th Fr Sa Su  
 
.
.
1
.
2
.
3
.
4
.
5
.
 
  6
.
7
.
8
.
9
.
10
.
11
.
12
.
 
  13
.
14
.
15
.
16
.
17
.
18
.
19
.
 
  20
.
21
.
22
.
23
.
24
.
25
.
26
.
 
  27
.
28
.
29
.
30
.
31
.
.
.
 
 
.
.
.
.
.
.
.
 
 
.
.
.
.
.
.
.
 
Service
.
.
.
.
.
.
.

Speeches, Interviews

19.04.2006

European Conference on Subsidiarity, Keynote Speech by Vassilios Skouris


“The role of the principle of subsidiarity in the case law of the European Court of Justice”

 

Mr. President, Chancellor Schüssel, Ladies and Gentlemen,

It is a particular pleasure for me to be in St. Pölten and to take part at this conference on subsidiarity. I didn’t know St. Pölten before, but there was a ruling handed down by the European Court of Justice recently on procurement law dealing with the relocation of the seat of the Lower Austrian Government from Vienna to St. Pölten.

This conference talks about subsidiarity and calls for better regulation. That is an aim shared by the European Court of Justice. Better law-making has a positive impact on legal review mechanisms, making it less likely for judges, whenever the legal situation is unclear, to have to take action themselves and to change the legal situation, thus exposing themselves to criticism. That’s why we are very much interested in better laws and we can only subscribe to proposals made in this regard.

Let me now turn to the principle of subsidiarity as such. As you know, the principle of subsidiarity has been laid down in Article 5, paragraph 2 of the EC Treaty and it is positioned between the principle of limited empowerment and the principle of proportionality. This proximity of the principle of subsidiarity with the other two principles is not just a geographic proximity. But I will discuss this aspect later on. The principle of subsidiarity has been laid down in the EC Treaty and it can now be enforced and violations of that principle may be challenged before the European Court of Justice. It is very important that it cannot be reviewed in the sense of a pre-existing political, philosophical or theological concept, but in the way it has been laid down in the Treaty and the Protocol. This is why the existence of competences transferred to the Community cannot be called into question afterwards. In its social and state-philosophical design it may constitute a rule for distributing competences, but under Community law it is defined as a rule to exercise competences. The principle of subsidiarity is only applicable to those areas in which the Community has no exclusive competence, and therein lies the first difficulty because the Treaty does not contain a catalogue of exclusive competences. There is the common customs tariff, for example, or joint trade policy and that is something of which only the Community is in charge, but such an allocation cannot be made in that general form for fundamental freedoms as well as the rules governing competition or the single market as a whole. When talking about legal harmonisation in the single market, we are often confronted with the following question: Is there really a need for harmonisation on the part of the Community or can we just do with the prevailing situation and national measures are sufficient?

A real legal harmonisation can only be performed by the Community - this is an argument that is often advanced - and that’s why it is exclusive in nature. The importance of the principle of subsidiarity under Community law would be minimal if it were not applicable to legal harmonisation. The European Court of Justice had to determine this question a few years ago; it stated that subsidiarity with regard to harmonisation measures serving the single market must be respected and abided by.

In the light of a plethora of measures aimed at harmonising laws and administrative rules and regulations of the member states, one might expect that the principle of subsidiarity plays a major role in the proceedings before the European Court of Justice. However, the reality is somewhat different. This principle has not left any remarkable traces in the rules handed down by the European Court. Sometimes parties have stated that a certain harmonisation measure has infringed on the principle of subsidiarity. Nevertheless, these arguments did not have a major impact on the outcome in these cases.

Is this due to the fact that the principle of subsidiarity is disregarded by the European Court? I don’t think so. In my opinion, it is due to the fact that the Treaty does not grant full-fledged powers to the Community lawmaker but that there are stringent criteria concerning harmonisation measures. If differences are found between national rules, this does not suffice to justify legal harmonisation; rather, there must be differences in administrative laws of the member states that are likely to curtail fundamental freedoms, meaning that they have a direct impact on the functioning of the single market. Measures of legal harmonisation must also comply with the principle of proportionality, which means that they are suitable to achieve the envisaged goals and must not be disproportionate.

If all these criteria are met, the leeway in performing autonomous and independent subsidiarity reviews is rather limited. Is this an admissible harmonisation measure or not? Answering this question already covers essential aspects of the principle of subsidiarity

Allow me to give you an example to prove my point. Some time ago, the European Court of Justice in proceedings – British-American Tobacco - had to deal with the directive on the manufacture, presentation and sale of tobacco products. The directive is aimed at achieving legal harmonisation with regard to the highest content of certain harmful substances contained in cigarettes and the warnings label on cigarette packs. The validity of this directive was called into question for a number of reasons because it violated the principle of subsidiarity and disregarded the principle of proportionality.

The European Court of Justice looked into this matter, examining the issue of the correct legal basis and the problem of proportionality. The European Court was concerned only marginally with the principle of subsidiarity. This should not be criticised, however, because the judgment refers to the statements made with regard to proportionality and uses these statements in the reasoning also within the framework of the subsidiarity review.

This brings me back to the proximity between the principles of subsidiarity and proportionality that I mentioned at the beginning of my presentation. We can also put it more generally: The more accurately the legal basis for Community action is defined in the EC Treaty, the more precisely the principles of community law are examined and complied with, the more unlikely it is that the outcome is not in line with the principle of subsidiarity.

Referring to the proximity of the subsidiarity principle and the proportionality principle, the content of the former regarding the protection of freedoms becomes evident and enforceable. Proportionality demands that state intervention with the freedom of individuals may not go further as this is necessary in order to achieve a legitimate aim for the benefit of society. Some reservations are listed, of course in the sense that even necessary interferences need a legal basis. The principle of subsidiarity is quite similar. It protects member states against the taking over of tasks by the community that could sufficiently or even better be dealt with at the national level. Only where Community action is necessary, can tasks be “zoomed up” so to speak.

This brings me to the final point of my statements: Being a general principle of community law, the principle of proportionality applies to all areas of community action and community law. To the extent that aspects of the principle of subsidiarity are also found in the principle of proportionality, these aspects become part of the general validity of the proportionality principle.

Finally, it can be said that the principle of subsidiarity has a social and philosophical notion. It is linked to the famous encyclica Quadragesimo anno. I am not a Catholic, but let me briefly quote from this encyclica. It says what individuals can do on their own initiative and out of their own efforts, should not be taken away from them and allocated to the community, for it would be against justice for the larger entities to assume what the small entities can achieve and bring to a positive end.”

In a free translation, one might say here: Proportionality protects individuals against a restriction to an unnecessary extent of their rights by a measure benefiting the community. Subsidiarity protects small communities against being deprived of tasks by a central power to a greater extent as necessary.

 

Date: 21.04.2006