Principle of Subsidiarity

In exercising EU powers the principle of subsidiarity constitutes an important barrier to be observed that is incorporated in the Treaty. Despite improvements regarding the wording in the Treaty of Lisbon to describe the principle of subsidiarity, most of the legal terms remain vague. The existing criteria hitherto used to scrutinise whether or not the principle of subsidiarity had been observed – in particular the cross-border dimension of matters to be regulated – were deleted. According to the new protocol on subsidiarity, national parliaments are granted the preventive right to subsidiarity complaints (criticising over-regulation) and the right to take action against infringements of the principle of subsidiarity in the form of an ex-post control.

The instruments to control compliance with the principle of subsidiarity constitute a formal upgrade of national parliaments. However, extremely short notice periods for complaints and high voting quorums pose significant hurdles to complaints against infringements of the principle of subsidiarity. To this end, more efficient structures within national parliaments and an improved coordination between European parliaments will be of utmost importance in future. Despite the deletion of the guidelines in the protocol on subsidiarity, the main guide for assessing whether an issue has cross-border relevance or not, will remain indispensable. The benefit resulting from a regulation at EU level, which must be forecast by the European legislator in terms of efficiency, can be assessed by means of ordoliberal criteria.