Subsidiarity as a Limit to the Exercise of EU Competences

Summary:

The purpose of this article is to examine whether the subsidiarity principle could act as a check on the EU legislator. The first main section of the article tries to respond to the conceptual challenges of subsidiarity by finding a meaningful definition to the principle. It argues that substantive subsidiarity entails a demand on the EU legislator to demonstrate the risk or the existence of a transnational ‘market failure’ in order to exercise its harmonization powers. In the subsequent section of the article, the challenge of judicial enforcement is tackled. This section argues for stringent procedural review of subsidiarity as a solution for the problems of judicial review. It suggests a standard of legality of ‘adequate reasoning’ and ‘relevant evidence’ to check whether the EU legislator has demonstrated conformity with the substantive subsidiarity criterion. The final section then summarizes the argument and draws some broader reflections on the basis of the enquiry.