The principle of subsidiarity regulates the exercise of powers in the European Union. It is intended to determine whether, in an area where there is joint competence, the Union can take action or should leave the matter to the Member States. The subsidiarity principle is based on the idea that decisions must be taken as closely as possible to the citizen: the Union should not undertake action (except on matters for which it alone is responsible) unless EU action is more effective than action taken at national, regional or local level.
The subsidiarity principle was introduced by the Treaty of Maastricht and was further elaborated in a Protocol on the application of the principle attached to the Treaty of Amsterdam. Today, the principle is defined in Article 5 TEU:
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.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
In effect, this principle only applies when the Union and Member States both have competence. The question is, which of the two (EU or the Member States) is to exercise the competence. As defined in Article 5 TEU, there are two conditions for Union action: first, insufficient achievement by Member States of the objectives of the proposed action; and, secondly, better achievement by the Union by reason of the scale or effects of the proposed action.
The concept of subsidiarity was initially introduced as a result of pressure on the one hand from certain regions – in particular the German federal states (Länder) – to use subsidiarity as a way to protect their regional autonomy recognised at the national level, and on the other from certain Member States – in particular the UK – that saw in subsidiarity a tool to protect themselves against encroaching Union intervention. However, the concept as enshrined into the Treaty has focused on the relations between Union and Member States – with the exception of a Declaration attached to the Treaty of Amsterdam which states that ‘for the German, Austrian and Belgian governments it remains understood that the actions of the European Community on the basis of the principle of subsidiarity concern not only the Member States, but also their bodies, to the extent that these bodies possess their own legislative powers, conferred on them by national constitutional law’.
The new Treaty of Lisbon, as it entered into force on 1 December 2009, broadens the definition of subsidiarity to the regional and local level (Article 5 (2) TEU). It also introduces, in a revised Protocol on the application of the principle of subsidiarity and proportionality attached to the Treaty of Lisbon, a new ex ante political monitoring mechanism through which any national parliament or any chamber of a national parliament will be enabled to issue a reasoned opinion regarding compliance with the principle by EU proposals of a legislative nature.