Year LXVI, 2024, Single Issue
Subsidiarity
in the Parliament’s Proposals
for European Treaty Amendment*
SALVATORE ALOISIO
Introduction.
Crucially, to appreciate the value and scope of the changes to the regulation of the principle of subsidiarity proposed by the European Parliament (EP) in its 22 November 2023 resolution on proposals for the amendment of the Treaties,[1] they have to be set within the overall rationale of the reform proposed by the Parliament in exercising, for the first time since the Treaty of Lisbon came into effect, the power to present proposals to modify the Treaties previously conferred on it by art. 48 TEU.
Essentially, this proposal aims to advance, in a federal direction, the process of European integration.
Very briefly,[2] it would see the Parliament’s powers extended to areas (such as foreign policy and defence, economic and social policy coordination, etc.) in which it currently has an only marginal role; it would also reduce, in favour of various majority voting mechanisms, the matters on which the Council is required to decide unanimously. From the perspective of the EU legislative process, the proposed changes would constitute a decisive step towards the adoption of a federal-type bicameral parliamentary system, i.e., one in which there would be one chamber representing the electorate and another representing the member states. They would also enhance the Commission’s political dimension, in particular by assigning the European Parliament a more significant part in the process of forming the Commission, and fostering the relationship of trust between the latter and the EP, and by reducing the role of the states, especially the European Council, in the said process. As a result, the EU’s ‘form of government’[4] would become more similar to that of a classic parliamentary democracy.
In relation to these reflections, the EP’s project envisages, above all, a considerable increase in the so-called shared competences, i.e., matters on which both the EU and the member states intervene, to extents dictated by the aforementioned principle of subsidiarity. The EP proposes, in particular, ‘to establish shared competences on public health matters and the protection and improvement of human health, especially cross-border health threats, civil protection, industry, and education especially when transnational issues (…) are concerned; [and] to further develop Union shared competences in the areas of energy, foreign affairs, external security and defence, external border policy in the area of freedom, security and justice, and cross-border infrastructure’.[4]
Subsidiarity and federalism in the EU’s form of government.
Stronger regulation of the principle of subsidiarity is in fact perfectly compatible with the framework briefly outlined here, which sees new areas added to the existing shared competences.
In citing the legal principle of subsidiarity, I am, of course, referring only to so-called vertical subsidiarity,[5] understood as a principle that governs relationships between different territorial levels of government, and not to the traditional rigid and clear subdivision of competences decided a priori on the basis of constitutional norms. The latter is typical of the first form of federalism, which was born and developed in the context of the liberal state, where the existence of few powers made it relatively easy to clearly establish which matters should be under the jurisdiction of each level of public power.[6] Instead, the principle of subsidiarity that became established with the modern ‘cooperative’ form of federalism,[7] but is also adaptable to more advanced forms based on models of multilevel constitutionalism, serves to regulate the intervention of the different levels of government in situations or areas where they share competences, i.e., in which the levels involved intervene, but each time to an extent determined by application of the principle. In short, this form of subsidiarity allows the intervention of each level of government to be carefully calibrated, even in relation to single provisions.
Subsidiarity, as understood in the present context, provides that powers must be exercised by the level of government closest to the citizens (which is the lowest one), providing this level can manage them adequately. The higher levels therefore play a subsidiary role. In other words, they can only intervene if, and to the extent to which, they are able to demonstrate the inadequacy of the lower levels.[9]
The principle is designed to protect the competences of the lower levels of government, by shifting to the highest one the burden of proof of the need for its intervention, but its application is not static but dynamic, in the sense that it can vary according to the times and conditions, producing not only the originally desired effect of protecting the powers of the levels closest to the citizens, but also the opposite effect, should the need for a large-scale intervention make this necessary.[9]
The principle of subsidiarity, very briefly outlined here, is therefore perfectly consistent with the concept of federal, or shared, sovereignty, meaning sovereignty that is distributed in a collaborative way between multiple levels of government, and whose shared parts must inevitably be governed by subsidiarity. In this context, sovereignty as a whole is still sovereignty but, unlike what happens in a centralised state, it is exercised by different subjects on multiple levels and to extents that are determined, precisely, by the principle in question.[10] We therefore find the principle of subsidiarity to be consistent with the overall reform plan proposed by the EP.
An old obstacle to the effectiveness of the principle of subsidiarity, which particularly affects its European expression, is the limited justiciability (ex post) of possible disputes over compliance with it.[11] The principle of subsidiarity requires those wanting a competence to be transferred to a higher level of government to motivate their position, while the judge is required to decide upon the congruity of the motivation, based on the standards to which the judgement of reasonableness has accustomed us.[13]
The principle of subsidiarity is currently already established in the preamble of the TEU, reiterated in art. 5 par. 1, and finally defined in art. 5 par. 3.[13] But it is Protocol (No 2), annexed to the Treaties, that seeks to establish the procedural guarantees aimed at promoting compliance with the principle in the adoption of acts.
The proponent must set out ‘the reasons for concluding that a Union objective can be better achieved at Union level’ and these reasons must ‘be substantiated by qualitative and, wherever possible, quantitative indicators’, thereby providing objective arguments for evaluating the intervention.
The possibility of questioning applications of the principle, on the other hand, is given to the national parliaments, which are the subjects most interested in preventing the supranational level (in which the states are represented by their respective governments) from exceeding their competences to the detriment of the role of the national parliaments.[14]
Regulation of the principle of subsidiarity as set out in the EP’s Treaty amendment proposal.
The EP’s proposal, taking up what was suggested by the Conference on the Future of Europe,[15] provides for a strengthening of the role of the EU Court of Justice in monitoring compliance with the principle of subsidiarity. The EP suggests introducing a new paragraph (3a), in art. 19 TEU, stating that: ‘The Court of Justice of the European Union shall monitor compliance with the principle of subsidiarity and may give preliminary rulings’ (i.e., upon request of a national judge during a trial) ‘on whether the Union has acted ultra vires,’ (i.e., beyond its powers and competences) ‘as well as address actions brought under Article 263 of the Treaty on the Functioning of the European Union on grounds of infringement of the principle of subsidiarity.’
Under the proposal, this latter monitoring of compliance, which actually is already possible, would be strengthened through an amendment to art. 263. This article already states that the Court of Justice of the EU may address ‘actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of (…) infringement of the Treaties, or of any rule of law relating to their application,’ but the new version would add ‘in particular concerning the principle of subsidiarity’.
Under the EP’s Treaty amendment proposals, the current text of Protocol (No 2) on the application of the principles of subsidiarity and proportionality would be inserted in the body of the Treaty (TFEU 299a ff.). The reasons for this are not so much legal as symbolic, the aim being to underline the importance of the principle by inserting the relevant regulations directly into the Treaty. The proposed changes also increase the role of regional parliaments in the formulation of opinions by the relevant national parliaments, when these opinions concern matters of regional competence.
Finally, an amendment is proposed (art. 299g) that would allow the national parliaments to request the European Parliament or the Commission to submit proposals for Union acts deemed necessary for the purpose of implementing the Treaties, a power currently given only to the Council, the European Parliament, and 1 million European citizens, through the so-called European Citizens’ Initiative (ECI).
The importance of the principle of subsidiarity in the ‘light’ form of federalism suitable for European unification.
A strengthening of the role of subsidiarity is all the more necessary if Europe’s objective is, as we believe it should be, to arrive at a so-called light, original or pure model of federalism, i.e., one that is extremely respectful of the role of the member states and in which the federation is responsible for a limited number of areas. After all, it should not be forgotten that the leading players in this scenario are the states par excellence, i.e., the ones that gave rise to the very idea of the modern state and as such are never likely to be absorbed by a European federal state.
We are talking about a highly cooperative model of federalism based on close collaboration between states and the federation, and therefore on extensive sharing of competences even in areas that, in federal systems too (now centralised), fall under the sole jurisdiction of the central power.
A ‘light’ federal system of this kind therefore envisages sharing even of those competences that lie at the very heart of sovereignty, such as defence. A particularly fitting example is common defence, whose sharing is possible if one thinks not of creating a European ‘national’ army in the Jacobean mould, but rather in terms of creating a highly homogeneous system among the member states’ armed forces. Essentially, the individual armed forces would be part of a broader European defence capacity, whose strategic concept, training, equipment, logistics, industrial production, etc. would be totally standardised. There would be a single strategic command (general staff) which would be able to call upon forces (both operational and planning/logistics) under its direct control, but also use those of the member states in a coherent and coordinated way.
All of this, however, presupposes the creation of a solid and democratically legitimised level of European power capable of guaranteeing a common political direction, in other words, of identifying, together with the EP and the Council, the fundamental purposes of the EU.
[*] This text is based on an address given during a debate on Sovereignty and Subsidiarity: Two Souls of European federalism held in Ferrara on 13 April 2020 and organised by the Debate Office of the European Federalist Movement.
[1] Cf. European Parliament resolution of 22 November 2023 on proposals of the European Parliament for the amendment of the Treaties (2022/2051(INL)), https://www.europarl.europa.eu/doceo/document/TA-9-2023-0427_EN.pdf.
[2] For more on the procedural process and the content of the EP proposal, see L. Lionello, Parliament Activates the Treaty Revision Procedure: The Significance of the Vote and Europe’s Priorities, The Federalist, 65 (2023), pp. 86 ff., https://www.thefederalist.eu/site/index.php/en/documents/2623-parliament-activates-the-treaty-reform-procedure-the-significance-of-the-vote-and-europes-priorities, and Id., Tempi maturi per la riforma dei Trattati? La proposta del Parlamento europeo, Aggiornamenti sociali, 3/2024, pp. 170 ff., https://www.aggiornamentisociali.it/articoli/tempi-maturi-per-la-riforma-dei-trattati-la-proposta-del-parlamento-europeo. See also F. Fabbrini, Il Parlamento europeo e la riforma dei Trattati, Centro Studi sul Federalismo, Turin, Commento n. 278, 27 November, 2023, https://csfederalismo.it/it/pubblicazioni/commenti/il-parlamento-europeo-e-la-riforma-dei-trattati and A. Profeta, Il progetto di riforma dei Trattati europei: cambiare ‘tutto’ affinché ‘nulla’ cambi. ‘Sailing on High Seas: Reforming and Enlarging the EU for the 21st Century’, Diritti comparati, https://www.diritticomparati.it/il-progetto-di-riforma-dei-trattati-europei-cambiare-tutto-affinche-nulla-cambi-sailing-on-high-seas-reforming-and-enlarging-the-eu-for-the-21st-century/?print-posts=pdf.
[3] This issue has, over time, been accompanied by the development and consolidation of a broad debate: among the first considerations, as regards the Italian literature, see C. Pinelli, Ipotesi sulla forma di governo dell’Unione europea, Rivista Trimestrale di Diritto Pubblico, 39 (1989), pp. 315 ff., nevertheless, the author underlines that the expression must be used in an absolutely conventional sense, given that it refers to a system whose statehood is not recognised (says L. Elia, Prime osservazioni sulla forma di governo nella Costituzione per l’Europa, Diritto Pubblico, 9 n. 3 (2003), p. 757). On this point, see also S. Mangiameli, La forma di governo europea, in: various authors, Questioni costituzionali del governo europeo, edited by G. Guzzetta, Padua, Cedam, 2003, pp. 72–78.
[4] Cf. European Parliament resolution of 22 November 2023, op. cit., points 14 and 15 of the premises; L. Lionello, Parliament Activates…, op. cit., p. 104.
[5] For a brief comment on the concept of subsidiarity and the distinction between the vertical and horizontal forms (horizontal subsidiarity being that which concerns relationships between public powers and social groups), see the entry Subsidiarity, in: T. Groppi, Il federalismo, Rome-Bari, Laterza, 2004, p. 154.
[6] The central state and member states split the matters to be administered and on which to legislate without, in general, there being any scope for interference by each in the spheres assigned to the other (so-called dual federalism) writes G. Bognetti, entry Federalismo, Digesto. delle Discipline Pubblicistiche, VI, Turin, 1991, p. 279. On the transition from dual federalism to cooperative federalism, see A. Reposo, entry Stato federale, in Enciclopedia giuridica Treccani, XXX, Rome, Istituto della Enciclopedia italiana, 1993, p. 5 and bibliographical references contained therein.
[7] See T. Groppi, Il federalismo op. cit., pp. 70 ff.; see also, G. Bognetti, Federalismo, op.cit., p. 283.
[8] See T. Groppi, Il federalismo, op. cit., p. 154.
[9] This is what happened in the USA, on the one hand with the country’s assumption of an international role, but above all with Roosevelt’s New Deal, which led to an increase in federal policies implemented in coordination with state ones.
[10] For further considerations on the topic of sovereignty in the federal state, allow me to refer to S. Aloisio, Lo Stato federale, aspetto di struttura del federalismo, Il Ponte, 68, n. 2-3 (2012), pp. 21-23.
[11] In this regard, see F. Vecchio, Il principio di sussidiarietà nel Trattato Costituzionale: procedimentalizzazione vs. giustiziabilità, https://www.forumcostituzionale.it/wordpress/images/stories/pdf/nuovi%20pdf/Paper/0044_vecchio.pdf. On more recent developments, see P. De Pasquale, Sharing is caring: i primi trent’anni del principio di sussidiarietà nell’Unione europea, Il Diritto dell’Unione europea, 3-4 (2021), pp. 440 ff..
[12] Cf. T. Groppi, Il Federalismo, op. cit., p. 155.
[13] Which here we report for the convenience of the reader: ‘Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.’
[14] On the role of the national parliaments, see P. De Pasquale, Sharing is caring…, op. cit., pp. 435 ff..
[15] On the Conference on the Future of Europe (CoFoE), see B. Guastaferro, Le conclusioni della Conferenza sul futuro dell’Europa e i suoi possibili esiti, 2022, in https://www.eublog.eu/articolo/35007/Le-conclusioni-della-Conferenza-sul-futuro-dell%E2%80%99Europa-e-i-suoi-possibili-esiti/Guastaferro and L. Lionello, Gli esiti della Conferenza sul futuro dell’Europa e le prospettive di revisione dei Trattati, 2022, in https://www.aisdue.eu/luca-lionello-gli-esiti-della-conferenza-sul-futuro-delleuropa-e-le-prospettive-di-revisione-dei-trattati/.
