Europe of Regions: what do we mean when we speak of subsidiarity?

, by Juuso Järviniemi

Europe of Regions: what do we mean when we speak of subsidiarity?

The concept of subsidiarity seems deceptively simple: decisions should be made as close to those affected by them as reasonably practicable. If there is no added value in dealing with a problem on an EU level, Member States should be left to do so. The Lisbon Treaty (or more precisely, its Protocol 2) sets out in detail how the European Commission must justify that its legal proposals comply with the principle. However, nearly thirty years after the Treaty of Maastricht, we are still unsure whether subsidiarity is a legal or a political principle.

At the 31th edition of JEF Strasbourg and JEF Freiburg’s annual joint seminar last weekend, the topic was ‘Europe of Regions’. The opening session featured Peter Jósika, an Austrian-born author and proponent of such a decentralised model of organising Europe. In the presentation, one of his ideas for what a Europe of Regions would look like in practice was to extend the EU principle of subsidiarity to the member state level. However, because of the ambiguities in the concept of subsidiarity, proponents of a Europe of Regions should be more precise about what they actually want. Moreover, they should remember to adapt their ideas depending on the local context.

What is subsidiarity?

Understanding the nature of subsidiarity is difficult, mainly because debates about the appropriate level of decision-making may take on both quasi-legal and political dimensions. The Lisbon Treaty protocol says that the Commission should use “qualitative and, where possible, quantitative indicators” to demonstrate that an objective can better be met through EU action than through member states acting alone. As such, on the one hand the Treaty text tries its best to remove political, value judgements from the business of assessing subsidiarity, choosing instead to turn the problem into a legal or technocratic one.

At the same time, Ian Cooper (2017) notes that under the EU’s subsidiarity control mechanism, it is political bodies – namely, national parliaments – which study whether the Commission’s proposals infringe on subsidiarity. The European Court of Justice could in theory declare that an existing EU law goes against subsidiarity, but in practice the threshold for doing so is high: the ECJ would have to walk over the heads of the European Parliament and the Council after they democratically agreed a law.

To cut a long story short, it is politicians who hold the power when deciding what goes against subsidiarity and what doesn’t. In this situation, political factors easily enter the process: a national parliament might flag its concerns about subsidiarity even when the real problem is mainly ideological disagreement with the Commission’s proposal. However, Cooper adds that some parliaments, like the Finnish one, have interpreted the subsidiarity principle more strictly, almost as if they were acting as lawyers rather than politicians. As a result, there is no common understanding of whether the EU’s subsidiarity control mechanism (or more broadly, subsidiarity) is a legal or a political question - although the fact that parliaments are being asked perhaps suggests the EU tends towards the ‘political’ conception.

Instead of saying ‘subsidiarity’, be more explicit

If we are to extend the idea of subsidiarity to the Member States, we should first ask how subsidiarity is to be understood. If subsidiarity is implemented as a political principle, it has better chances of helping to fulfil the promise of more powerful regions.

Already in 2006, Gareth Davies pointed out that member states have lost cases in the European Court of Justice as their objections to Commission proposals were deemed to fall outside the remit of subsidiarity. He argued that under the subsidiarity principle – the idea of solving problems at the level where action is most effective – the question is at which level the EU’s objectives can best be advanced. If the EU and Member States have conflicting objectives, he argued, the subsidiarity principle couldn’t be of much use to the latter.

Davies’s conception of subsidiarity is a strict one, which leaves no room for political considerations. Cooper points out that such strict legal reasoning will only rarely give rise to objections to the Commission’s proposals, because blatant breaches of subsidiarity are rare. Davies agrees: he argues that if the EU and Member States have the same interests, it simply doesn’t make sense for the EU to try to take on a job Member States can do just as well. As such, a strict ‘legalistic’ conception of subsidiarity might raise false hopes of stronger regions.

Let us now return relations between regions and national capitals. If we accept that the best way to protect regions’ powers is allowing regions to voice not only their legal, but also their political disagreement with proposals made by their national capitals, we should ask how helpful it is to lock ourselves into the ‘subsidiarity’ mindset. Talk about ‘extending subsidiarity’ into the member states is ambiguous because there’s no set understanding of what subsidiarity means. Instead, proponents of a ‘Europe of Regions’ could be clearer, and say they want regional assemblies to have stronger consulting or even veto powers on national legislation.

No single ‘Europe of Regions’, but a case-by-case approach

Indeed, the idea to strengthen regional assemblies within the member states chimes with another proposal heard in the discussions at the JEF Strasbourg–JEF Freiburg seminar. Namely, participants discussed whether, on an EU level, the Committee of the Regions should be given legislative powers alongside the European Parliament and the Council.

Both at the EU and the national level, the best way to make regions more influential is to give them the political power to slow down or block proposals they dislike. Within Member States which are currently organised as unitary states, granting full-blown veto powers to the regions would intuitively mean promoting a federal model. At this point, we enter a debate on the benefits and drawbacks of federalism. On the one hand, federalism strengthens citizens’ democratic representation by giving local communities a stronger voice. It also creates checks and balances, which helps prevent the government from encroaching on citizens’ rights. On the other hand, precisely because of the strengthening of checks and balances in the system, federalism tends to be accompanied with slower decision-making and a higher risk of political paralysis.

Read also: ‘Eurosceptics and federalists are both in a way right’

Because federalism has both benefits and drawbacks, it would be problematic to indiscriminately impose federalism on all Member States. As Peter Jósika said in his presentation at the Strasbourg seminar, an argument against a Europe of Regions is that not all parts of Europe espouse a strong regional identity. If popular demand for stronger regional representation is not high, we should not try to fix a problem where there is none. Therefore, the promotion of stronger regions within the member states is better done on a case-by-case basis: rather than promoting a monolithic “Europe of Regions”, perhaps one can promote a ‘France of Regions’ when needed, a ‘Greece of Regions’ when needed, and so forth.

As for the European dimension: the idea of turning the Committee of the Regions into a legislative chamber would be a burden, rather than a boon. EU decision-making is already needlessly complex, and should indeed be simplified by means like removing unanimity voting in the Council. Whatever popular legitimacy the EU gains by sending another chamberful of full-time legislators to Brussels, it will lose when the EU becomes even more unable to legislate rapidly.

The ‘Europe of Regions’ agenda is fundamentally about strengthening the role of regions within the EU, and perhaps also within Member States. While the first word that comes to mind is ‘subsidiarity’, simply speaking of further extending subsidiarity is hardly helpful, most notably because the word has a slightly unclear meaning. Instead, proponents of a Europe of Regions should be explicit about what powers they want regions to have vis-à-vis the national capitals. At that point, people who are sensitive to local communities’ needs should be the first to understand that there is no one-size-fits-all solution that works across Europe. Paradoxically, a proponent of a Europe where regions’ voices are heard might find the phrase “Europe of Regions” somewhat disingenuous.

Sources

Cooper, I. (2017) ‘Is the Early Warning Mechanism a Legal or a Political Procedure? Three Questions and a Typology’, in A. Jonsson Cornell & M. Goldoni (eds.) National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon: The Impact of the Early Warning Mechanism.

Davies, G. (2006) Subsidiarity as a Method of Policy Centralisation. Hebrew University of Jerusalem International Law Research Paper No. 11-06.

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