Subsidiarity

Alexis de Tocqueville's classic study, Democracy in America, may be viewed as an examination of the operation of the principle of subsidiarity in early 19th century America. Tocqueville noted that the French Revolution began with "a push towards decentralization ... in the end, an extension of centralization". He wrote that "Decentralization has, not only an administrative value, but also a civic dimension, since it increases the opportunities for citizens to take interest in public affairs; it makes them get accustomed to using freedom. And from the accumulation of these local, active, persnickety freedoms, is born the most efficient counterweight against the claims of the central government, even if it were supported by an impersonal, collective will." As Christian Democratic political parties were formed, they adopted the Catholic social teaching of subsidiarity, as well as the neo-Calvinist theological teaching of sphere sovereignty, with both Catholics and Protestants agreeing "that the principles of sphere sovereignty and subsidiarity boiled down to the same thing". The term "subsidiarity" is also used to refer to a tenet of some forms of conservative or libertarian thought in the United States. For example, conservative author Reid Buckley writes: The United Nations Development Programme's 1999 report on decentralisation noted that subsidiarity was an important principle. It quoted one definition: According to Richard Macrory, the positive effects of a political/economic system governed by the principle of subsidiarity include: • Systemic failures of the type seen in the crash of 2007/08 can largely be avoided, since diverse solutions to common problems avoid common mode failure. • Individual and group initiative is given maximum scope to solve problems. • The systemic problem of moral hazard is largely avoided. In particular, the vexing problem of atrophied local initiative/responsibility is avoided. He writes that the negative effects of a political/economic system governed by the principle of subsidiarity include: • When a genuine principle of liberty is recognised by a higher political entity but not all subsidiary entities, implementation of that principle can be delayed at the more local level. • When a genuinely efficacious economic principle is recognised by a higher political entity, but not all subsidiary entities, implementation of that principle can be delayed at the more local level. • In areas where the local use of common resources has a broad regional, or even global, impact, higher levels of authority may have a natural mandate to supersede local authority. == General principle of European Union law ==

Subsidiarity is perhaps presently best known as a general principle of European Union law. According to this principle, the Union may only act (i.e. make laws) collectively where independent action of individual countries is insufficient without equal action by other members. The principle was established in the 1992 Treaty of Maastricht. However, at the local level it was already a key element of the European Charter of Local Self-Government, an instrument of the Council of Europe promulgated in 1985 (see Article 4, Paragraph 3 of the Charter) (which states that the exercise of public responsibilities should be decentralised). Subsidiarity is related in essence to, but should not be confused with, the concept of a margin of appreciation. Subsidiarity was established in EU law by the Treaty of Maastricht, which was signed on 7 February 1992 and entered into force on 1 November 1993. The present formulation is contained in Article 5(3) of the Treaty on European Union (consolidated version following the Treaty of Lisbon, which entered into force on 1 December 2009): The national parliaments of EU member states have an "early warning mechanism" whereby if one third raise an objection – a "yellow card" – on the basis that the principle of subsidiarity has been violated, then the proposal must be reviewed. If a majority do so – an "orange card" – then the council or parliament can vote it down immediately. If the logistical problems of putting this into practice are overcome, then the power of the national parliaments could be deemed an extra legislature, without a common debate or physical location: dubbed by EUObserver a "virtual third chamber". A more descriptive analysis of the principle can be found in Protocol 2 to the European Treaties. Court of Justice The Court of Justice of the European Union in Luxembourg is the authority that has to decide whether a regulation falls within the exclusive competence of the Union, as defined by the Treaty on European Union and its predecessors. As the concept of subsidiarity has a political as well as a legal dimension, the Court of Justice has a reserved attitude toward judging whether EU legislation is consistent with the concept. The Court will examine only marginally whether the principle is fulfilled. A detailed explanation of the legislation is not required; it is enough that the EU institutions explain why national legislation seems inadequate and that Union law has an added value. An example is the judgment of the Court of Justice of the European Union in a legal action taken by the Federal Republic of Germany against the European Parliament and the Council of the European Union concerning a Directive on deposit guarantee schemes (13 May 1997). Germany argued that the Directive did not explain how it was compatible with the principle of subsidiarity. The Court answered: == See also ==