First Examination

Yam Prasad Chaulagain European Union Law

4th April, 2011 Prof. Dr. David Jones

Group-A

Q.no.4) Meaning of Subsidiarity in the context of EU law:

Subsidiarity is a concept for the division of legislative powers at the lowest possible and efficient level.

The principle is close to the principle of decentralization . Subsidiarity is an organizing principle that

matters ought to be handled by the smallest, lowest or least centralized competent authority. In the

framework of the shared competences between the Community and the Member States the principle of

subsidiarity, enshrined by the European Community Treaty, defines the circumstances in which the

Community is empowered to act with priority in respect of the Member States. The Oxford English

Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function,

performing only those tasks which cannot be performed effectively at a more immediate or local level.

Subsidiarity is, ideally or in principle, one of the features of federalism, where it asserts the rights of the

parts over the whole.

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 The Lisbon Treaty repealed Article 5 of the EC Treaty and incorporated the

principle of subsidiarity into Article 5 of the EU Treaty, which, while upholding the terms of the repealed

article, adds an explicit reference to the regional and local dimension of the principle of subsidiarity.

Furthermore, the Lisbon Treaty replaces the 1997 protocol on the application of the principles of

subsidiarity and proportionality by a new protocol with the same name, the main difference being the new

role of the national parliaments in ensuring respect for the principle of subsidiarity .
Prior to the Maastricht Treaty, subsidiarity was promoted by various groups. The Roman Catholic school

of thought espoused by the Christian Democrats, the German federal view and the “Euro sceptic” British

view, particularly evident in the Conservative Party, favored the principle as a limiting power on EC

action save where necessary to facilitate the single market.

Formally, the principle of subsidiarity applies to those areas where the Community does not have

exclusive competence, the principle delineating those areas where the Community should and should not

act. In practice, the concept is frequently used in a more informal manner in discussions as to which

competences should be given to the Community, and which retained for the Member States alone. The

concept of Subsidiarity therefore has both a legal and a political dimension.

Why Subsidiarity has been a part of EU Law?

i) Subsidiarity is a dynamic concept and the appropriate level for action may vary according to

circumstances;

ii) All legislative proposals will be accompanied by a statement on the impact of the proposed

measure on the application of the principle of subsidiarity;

iii) It brings decision-making within the Community as close to the citizen as possible.

iv) Its aim is to guarantee a degree of independence for a lower authority in relation to a higher

body or for a local authority in respect of a central authority.

v) It therefore involves the sharing of powers between several levels of authority, a principle

which forms the institutional basis for federal States. 

vi) It governs the exercise of the EU’s competences. More specifically, in areas in which the

European Union does not have exclusive competence, the principle of subsidiarity seeks to

protect the capacity to take decisions and action of the Member States.
 Example-1

Subsidiarity is also a tenet of some forms of conservative or libertarian thought. For example,

conservative author Reid Buckley writes Will the American people never learn that, as a principle, to

expect swift response and efficiency from government is fatuous? Will we never heed the principle of

subsidiarity (in which our fathers were bred), namely that no public agency should do what a private

agency can do better, and that no higher-level public agency should attempt to do what a lower-level

agency can do better – that to the degree the principle of subsidiarity is violated, first local government,

the state government, and then federal government wax in inefficiency? Moreover, the more powers that

are invested in government, and the more powers that are wielded by government, the less well does

government discharge its primary responsibilities, which are (1) defense of the commonwealth, (2)

protection of the rights of citizens, and (3) support of just order

Example-2

The Second one emanates from that of comparative federalism. All federal system have a principle

mediating the relationship between federal and local government and when it is appropriate for the

central federal authorities to intervene and when it is not. A good example is that provided in article 72(2)

of the German Basic Law:- In this field the (federal authorities) will have the right to legislate if federal

legal regulation is needed: i) Because a matter couldn’t be settled efficiently by the legislation of the

various Lnnder ( region), or ii) Because regulation of the matter by the law of a land(region) could affect

the interest of other or all Lander, or iii) To safeguard the legal or economic unity, and in particular, to

safeguard the homogeneity of the living conditions beyond the territory of a Land.

Group-B
 Q.no. 9) The Lisbon Treaty:

The European Union has undertaken many changes over the last fifty years through a series of treaties

and amending treaties, of which the Lisbon Treaty is the latest. The Aim of the Lisbon Treaty is to

simplify the way in which the EU works by reforming the Institutional Structure of the Union and the

way in which decisions are taken. The Lisbon Treaty amends the current Treaty on European Union

(signed in Maastricht in 1992) and the Treaty establishing the European Community (signed in Rome

in 1957), but does not replace them. Together, the two amended Treaties establish the European Union

and govern its operation. The Treaty of Lisbon (initially known as the Reform Treaty) is a treaty that

was signed by the European Union (EU) member states on 13 December 2007, and entered into force

on 1 December 2009; in accordance with its Article 6.

The constitution was thrown out by French and Dutch voters in 2005. The Lisbon Treaty, too, was

rejected by Irish voters in 2008. However, the Republic of Ireland backed the treaty in a new

referendum in October 2009. The Czech Republic was the last EU member state to ratify Lisbon, and

the treaty took effect on 1 December 2009.

Major Changes in Lisbon Treaty:

The major changes in Lisbon Treaty can be described as follows.

 The unitary "European Union" replaces the former "three pillar" approach:  Under the

previous approach the European Community was responsible mainly for the internal market and

external trade relations (the "first pillar") and intergovernmental cooperation between EU Member

States dealt with common foreign and security policy (the "second pillar") and police and judicial

cooperation in criminal matters (the "third pillar"). New provisions added to the former EC Treaty

(now the "Treaty on the Functioning of the European Union") enumerate the policy areas in which the

EU has either exclusive, shared or supporting competence, together with its Member States. The EU is
 responsible both internally and externally for all of these areas of EU policy, within the limits of its

degree of competence and has a single legal "personality."

 A full-time President of the European Council: The European Council, now a formally

recognized EU institution in which EU Heads of State meet every three months, will have a full-time

President. This replaces the current system of rotating the Presidency every six months among the EU's

Heads of State. Belgian Prime Minister Herman Van Rompuy was appointed the first President of the

European Council, for a 2 ½ year term.

 EU Foreign Policy representative: The High Representative for Foreign Policy and Security,

British Commissioner Baroness Ashton, will take over the merged jobs of the existing High

Representative for Foreign Affairs (currently Javier Solana) and the External Relations Commissioner

(Benita Ferrero-Waldner) and will serve as Vice-President of the European Commission.

 A streamlined EU Commission? The number of Commissioners in the European Commission

was to be reduced to two-thirds the number of EU Member States, as from 2014, with countries

providing Commissioners in rotation. This was to make Commissioners more representative of the EU

and less advocates of national interest. However, to secure Irish approval for the Lisbon Treaty the

European Council agreed that one Commissioner per Member State would be maintained. At least for

the near term therefore efficiency has given way to the political need for all 27 Member States to be

involved in the College of Commissioners. However, the President of the Commission obtains the new

power to dismiss fellow Commissioners.

 Role of the EU Parliament:  The European Parliament becomes the co-equal legislator with the

Council in almost all policy areas. (The "Council" is the legislative body that represents the Member

States. It is distinct from the "European Council" referred to above, which serves a more political

function.) Thus, the current legislative process of co-decision is substantially extended and becomes

the "ordinary legislative procedure."

 A new voting system:  The voting system in the Council will become simpler and better reflect

the relative size of a Member State's population within the EU. After a phase-in period from 2014 to
 2017, a decision can be approved if voted for by Council members representing 55% of Member

States, accounting for 65% of the EU's population.

 Expanded jurisdiction of the European Courts:  The European Court of Justice now has

jurisdiction over all areas of EU activity, with the exception of foreign and security policy. Notably,

this extends the Court's jurisdiction to police and judicial cooperation in criminal matters. National

courts and tribunals will be able to refer questions relating to immigration, asylum, internal security

and criminal law to the Court. Acting unanimously, the Council can further expand the Court's

jurisdiction to disputes arising under treaties that establish European intellectual property rights.

 EU policies:  All EU policies will have to take into account the overarching goals of boosting

employment, providing adequate social protection and fighting against social exclusion. New treaty

provisions have been introduced to support measures in the areas of intellectual property rights, data

protection, sport, research (including a European space policy), tourism, disaster protection and

administrative cooperation. Combating climate change is expressly designated as part of the EU's

environmental policy; security and interconnection of energy supplies, as well as solidarity within the

EU, are now specified as part of its energy policy.

Beneficial or detrimental to European Union law?

We have been studying different arguments whether the Lisbon Treaty is beneficial or detrimental to

European Union law. Right now we can’t produce a single result regarding its favor or against. In fact, it

largely depends upon the strength and weakness of the treaty and the implementation of entire political

process. Nevertheless, The Lisbon Treaty puts in place a number of immediate reforms which has been

considered as beneficial aspects.

The Treaty of Lisbon provides a stronger and more coherent external voice for the European Union by

combining the functions of High Representative for Foreign Affairs and Security Policy with that of Vice-

President in the Commission and creating a new External Action Service to support the new “dual role”
Representative. It also provides more practical diplomatic and consular assistance for citizens when

travelling to third countries.

The Treaty of Lisbon responds to concerns raised by European citizens. For example, the political

commitment to tackle the twin challenges of climate change and energy policy is fully reflected in the

Treaty. For the first time, the treaties contain a section on energy which assigns to Union policy in this

sector the objectives of ensuring the proper functioning of the energy market, in particular energy supply

and the promotion of energy efficiency and energy saving, and the development of new and renewable

forms of energy.

New possibilities have been created to deal for example with cross border effects of public health, civil

protection and to support cross-border activities in sport. The Treaty of Lisbon puts freedom, justice and

security at the centre of its priorities. The European Union is now able to deal better with criminal gangs

who smuggle people across frontiers, promote and support action in the area of crime prevention and help

to tackle terrorism through the freezing of assets. It also confirms the EU commitment to the development

of a common immigration policy. The Treaty of Lisbon also contains a “solidarity clause” indicating that

the Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the target of

a terrorist attack or the victim of a natural or man-made disaster.

These innovations give the Union the possibility to better implement its policies aimed at ensuring

economic growth and competitiveness, improving employment and social conditions, enhancing personal

and collective security, promoting a better environment and better health conditions, developing cohesion

and solidarity between Member States as well as scientific and technological progress and, finally,

improving its ability to act on the international scene.

The Treaty of Lisbon also sets out a stable institutional system that means decisions can be taken quicker,

more transparently, with better democratic control and with a strengthened respect for decisions being

taken at the appropriate level. Citizens will have a better idea of who is responsible for what and why the
European Union is taking action. The above described positive reformation of Lisbon Treaty can be

summarized as follows:

 The EU’s powers will be clarified:

 It will streamline the EU:

 It will make the EU more accountable to national parliaments and to Member State governments

 It will improve the ability of the EU to make Europe more competitive:

 It will make the EU a more powerful voice in the world:

 It respects the rights and privileges of Member States, including the UK: