How to make a reality of subsidiarity

Date: 18/04/02

The concept of subsidiarity - aimed at ensuring decision-making power rests with the authority closest to the people affected - has not been consistently applied since the Maastricht Treaty. Dick Leonard examines why.

THE word 'subsidiarity' first appeared in the Maastricht Treaty of 1992, when it was included largely as a figleaf to appease the then British government led by John Major. Its purpose was to disguise the fact that the competences of the European Union were being substantially enlarged in a 'federalist' direction.

It never really caught on. It was an ugly term, and was insufficiently clearly defined in the treaty to have much practical consequence. The intention was to convey that decisions should be taken, wherever possible, at the level of authority closest to the citizens directly affected by their consequences. The treaty specifically stated that the EU institutions should only be involved where the objective 'cannot be sufficiently achieved by the member states'.

Since Maastricht, lip-service has been paid to the concept of subsidiarity, but there has been no consistent attempt to apply it in practice. The EU heads of government, when they met in Laeken last December, seem to have had a bad conscience about this.

'How is the principle of subsidiarity to be applied?' was one of the 56 specific questions which they referred to the Convention on the Future of Europe. This topic is addressed in a thought-provoking paper, entitled Earning the Right to Act, to be published next month by the Foreign Policy Centre (FPC). It argues that a solution is unlikely to come - as some have argued - from a stricter division of competences between the EU, the member states and sub-national levels of government.

The problem is that no such clear-cut division is possible. The author quotes Jack McConnell, chief minister of the Scottish Parliament, as saying: 'The issue in most cases is how to manage shared competences. Some 80 of the powers of the Scottish Parliament are also covered by an EU competence to a greater or lesser extent.'

The FPC paper argues that the mistake has been to consider subsidiarity from the perspective of 'input legitimacy' rather than 'output legitimacy'. The citizen is less concerned with which authority has made a decision than with how it is carried it out. Implementation is at least as important as policy formation so far as popular acceptability is concerned.

The conclusion is drawn that it would be a mistake to frame a precise definition of which constitutional process should be applied to each policy proposal, but that the method adopted should be decided on the merits and circumstances of each case.

Horses for courses, in fact, and the words of Bernard Delbecque, of Eurocities, are warmly commended: 'The subsidiarity principle must be understood in a flexible way so as to make it possible to decide, on every occasion, what must be handled at which level. It cannot be governed by binding rules'.

The paper goes on to suggest that the open method of coordination, in which governments and Community institutions are jollied along by a mix of benchmarking, best practice and peer review, rather than by a series of directives and regulations, should be more widely applied.

It cites approvingly the Commission's own white paper on governance, which says: 'The Union must review the Community method by following a less top-down approach and complementing its policy tools more effectively with non-legislative instruments...The choice of the level at which action is taken (from EU to local) and the selection of the instruments used must be in proportion to the objectives pursued.'

On the Commission's own record, the paper's verdict is mixed. It 'has been highly impressive in the preparatory stages of Community legislation, where its sensitivity to likely outcomes and their consequences has been continually in evidence. This sensitivity has never been matched, though, in the post-legislative phase, because the Commission has not been able to react to outcomes, and to review its policies accordingly'.

What is needed, the paper concludes, is an independent body to monitor the effects of each EU decision, to decide whether the method adopted would be most appropriate for future proposals in the same field, and - where necessary - to recommend if the decision should be called back for possible amendment or annulation. Who should fulfil this function? No new body is needed, says the FPC. The Court of Auditors (CA), which has long held a high reputation for its independence and assiduity, should have its mandate enlarged to carry out this new monitoring role.

Clearly the staff and probably also the membership of the Court, whose formidable Swedish President Jan O. Karlsson has just handed over to his Spanish successor, Juan Manuel Fabra Vallés, would have to be considerably expanded. Yet there is no reason to believe that, if given adequate resources, it could not adequately fulfil its new duties.

In making this proposal, the FPC is drawing, in part, on American experience. The US' 1993 Government Performance Results Act has led to a systematic monitoring of federal agencies. There the results of the monitoring have been reported directly to Congress, which decides on possible action.

To whom should the Court of Auditors be responsible? The FPC suggests that a second chamber of the European Parliament, made up of national parliamentarians, should review the Court's reports and make political recommendations to the European Council.

These could, equally, run to repatriating powers from the EU to member states, as well as transfers in the opposite direction. In my view, this would be too unwieldy a procedure: the case for a full-blown second chamber, though periodically advanced, has never been adequately established.

Far better would be to have a joint standing committee of MEPs and members of national parliaments, whose sole purpose would be to consider the CA's reports. Subject to this, I would commend the FPC's proposals, though I should perhaps confess to EV readers that the author, Mark Leonard, happens to be a close relation.

Major feature. The concept of subsidiarity - aimed at ensuring decision-making power rests with the authority closest to the people affected - has not been consistently applied since the Maastricht Treaty.

http://www.fpc.org.uk http://www.fpc.org.uk

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