The application of subsidiarity in the making of European environmental law

Article forms part of a special issue, 'Subsidiarity and environmental policy in the EU'. As the process of European integration gathered pace, subsidiarity was introduced as a concept that could curb the centralist tendencies of the European Union. For new legislation the EU needed to satisfy two criteria. What justification was there for European action in the first place (subsidiarity) and was the intensity of the action appropriate (proportionality)? Many references were thus made to the fact that new European legislation complied with these two principles albeit in a general and imprecise manner. This paper attempts to understand what the two concepts mean in relation to two pieces of environmental legislation. The paper begins by discussing, in general terms, the origins of the principles and their meaning in European Community law. It then examines the actual arguments made in support of or to counteract Commission proposals in the field of environmental policy. Three considerations must be satisfied. What legal competence does the Commission have to propose legislation, and does it comply with the subsidiarity and proportionality principles? The authors conclude by suggesting that a series of decision rules can be developed to evaluate the legitimacy of Community action.