Critically assess the significance of the principle of subsidiary within the EU's legal framework

Résumé du document

Central concept in the ‘European language', the principle of subsidiarity is at the core of the European Union (EU) legal order, at the heart its politics and policies. With the principles of conferral, of proportionality, the direct effect of the supremacy of EU law, the principle of the subsidiarity is totally incorporated in the EU legal framework machinery. We can even say that the concept of subsidiarity is somehow the foundations of the Constitutional structure of the EU. Etymologically, subsidiarity (or subsidiary) is linked to military or the religious area. Subsidiarity has a meaning of assistance, an aid that can stay on the background.

Looking at a dictionary is always helpful for seeing the most common sense of a legal or a political term. The Chambers English Dictionary defines subsidiarity as `the principle that a central authority should have a subsidiary function, performing only those tasks that cannot be performed effectively at a more immediate or local level'.

Before analyzing legal provisions of the subsidiarity, Barber for instance declares that ‘the European principle of subsidiarity is concerned with the allocation of powers to pre-existing institutions: for instance, whether a decision should be taken within the institutions of the European Union or should be allocated to the Westminster Parliament' .

Extraits

[...] Indeed, it took into account to sovereignty by the so far' of the subsidiarity principle. Subsidiarity is hence narrower than the wider version with the Working Time case. Subsidiarity needs to answer to a specific issue where the EU legislator thinks the national level is not enough, or less effective than the EU itself for action. The Lisbon Treaty strengthened provisions about subsidiarity and the possibility for the EUCJ to take actions on grounds on infringement if this principle was not respected[15]. [...]

[...] However the significance of subsidiarity within the CoR had been misleading for Jones[28]. Although it is related to federalism, the subsidiarity is an instrument that does not implied federalism which is well-structured intern organizations in separate levels. Subsidiarity is part of the journey and not the destination for the EU legal framework. The definition advocated by the CoR deserves one purpose; the purpose maybe of its own existence and legitimacy. This sentence can be illustrated by the two main points we are going to discussed. [...]

[...] The Court here finally expressed the implicit subsidiarity implied by the EU law with Cassis de Dijon in 1978[11]. As long as the EU legislative bodies or the Commission have the competence enumerated given by the Treaties, the subsidiarity is respected when it is explicit for instance in the directive. Thus, the UK was obliged to comply with the directive. Maastricht and all the work with the subsidiarity helped to improve what EU legislation is targeting; which ‘mutual recognition', integration and harmonisation of national laws. [...]

[...] Since the EU is nor an international organization nor a federal States, how the subsidiarity principle is developed and used within the community's legal framework. Inside the political object that is the EU, how the subsidiarity is a lever for an ever closer or an in so far union? This essay will demonstrate how the subsidiarity is a relevant principle within the EU's legal order. However, this relevance is also a cause for conflicts inside the legal order of the Union and the signification of the EU competences and, therefore, of the subsidiarity can be, at the same time relevant and unclear. [...]

[...] What is the answer concerning the subsidiarity provisions given by Treaties or protocols by the European Union Court of Justice (EUCJ) the judicial power of the Union? All researchers and specialists agree that first of all, the Court is very shy about this subject. Its judicial activism is so limited but still there are a few milestones cases in the jurisprudence. The first case we shall notice is United Kingdom v. Council (Working Time)[10]. At stake is the harmonisation of the working time within the Community for health and safety reasons. [...]