THE PRINCIPLE OF SUBSIDIARITY IN THE EUROPEAN UNION: ‘GOBBLEDYGOOK’ ENTRAPPED BETWEEN JUSTICIABILITY AND POLITICAL SCRUTINY? THE WAY FORWARD

The principle of subsidiarity in the European Union confines the policy-making and law-making competences of Union authorities to situations where the designated policy aims cannot be more effectively achieved at lower (i.e. national, regional or local) levels of governance. There are two institutionalised avenues envisaged to safeguard the EU institutions’ compliance with this principle. Besides the jurisdiction of the Court of Justice in ruling on all legal questions arising from the application and interpretation of the Treaties, another important instrument is entrusted to the Member States’ parliaments. This consists of the political scrutiny of the proposed EU laws with regard to compliance with subsidiarity. This paper intends to juxtapose these institutionalised avenues through an analysis of the principle of subsidiarity as it appears throughout the case law of the Court of Justice and within the subsidiarity monitoring procedure performed by the national parliaments. The aim is to assess the suitability of the judicial and parliamentary procedures for ensuring compliance with subsidiarity, and whether the principle, owing to its dual nature, i.e. both legal and political, can be efficiently complied with at all in the course of EU regulatory practice, either as being judicially enforced or politically safeguarded. After identifying the key shortcomings of both procedures, it will be shown that the present system is rather complex and ineffective. Such a system is unsatisfactory when compared with the constitutional importance of the principle of subsidiarity, and, furthermore, when the EU continues to expand its regulatory practices to sensitive socio-political spheres usually understood as national competences. Finally, novel institutional arrangements, addressing the main criticism and combining the features of both judicial and political systems in safeguarding the principle of subsidiarity, are proposed