Push to fortify the principle of subsidiarity

Date: 13/02/1997

By Rory Watson

GERMANY and the UK are claiming widespread support for their campaign to strengthen member states' defences against 'unnecessary' EU legislation.

Both governments want the Intergovernmental Conference to give full legal weight to the political principles agreed by Union leaders four years ago which laid down a clear demarcation line between Union and national responsibilities.

At a meeting of IGC negotiators early next month, they will examine plans to attach a protocol to the revised Maastricht Treaty establishing unambiguous principles of competence, subsidiarity and proportionality which would have to be fully complied with before any new EU legislation was proposed.

“It is really a belt-and-braces exercise which will give some legal teeth to the principle of subsidiarity,” explained one EU diplomat.

Both Bonn and London see the initiative as a way of curbing any potentially excessive use of the catch-all Article 235 of the Union's founding Treaty of Rome, although each is approaching the issue from a different perspective.

The UK is trying to prevent what it considers to be unjustified incursions into areas better dealt with by national legislation, while Germany is more concerned with protecting the prerogatives of its Länder.

Article 235 allows the European Commission to propose measures in areas not specifically covered by the treaty, but later judged necessary to meet the Union's objectives. Such proposals can, however, only become law with the unanimous agreement of all 15 member states.

During the original Maastricht Treaty negotiations in 1991, Article 235 came under attack from two very different angles. One camp wanted to relax the unanimity rule to make it easier to approve proposals; the other criticised the article for giving the Commission a handy legal justification for launching new policies, however mundane or grandiose, it could not anchor anywhere else in the treaty.

The result was stalemate. The article remained unchanged and no attempt has so far been made in the present IGC to reopen the issue. But many of those involved in the negotiations believe that the debate has now moved on.

“Some people in the Commission believe that the article could even be scrapped since EU activities are now sufficiently broad that a suitable base could easily be found for almost all initiatives and most of these would involve majority voting, not unanimity,” explained one EU official.

The increasing acceptance of the concept of flexibility - which would allow some member states to integrate further and faster than others - might also make the article, with its unanimity hurdle, redundant.

But supporters of a rigorous application of the subsidiarity principle are confident that strengthening the legal requirement for the Commission to weigh up each proposal before seeking EU-wide measures will ensure that some of its more contentious and less palatable ideas will never leave the drawing board.

As a further safeguard, a subsidiarity protocol setting out specific procedures and requiring Union institutions to give clear explanations for their actions would make it easier for the legality of any decision to be challenged before the European Court of Justice.

“The basic principle is now generally accepted, as the outline draft treaty submitted by the former Irish EU presidency shows,” explained one official. “The question now is whether to use all or part of the Edinburgh text or to go even further.”