Universität Dortmund
Faculty of Spatial Planning
Chair of Planning Law: Prof.Dr.jur.Carl-Heinz David
D 44221 Dortmund, August-Schmidt-Str.10
Tel.(0231)755 2295/3217/2219 Telefax(0231) 755 3424 Telex 822465 unido d
E-mail david@pop.uni-dortmund.de http://www.raumplanung.uni-dortmund.de/rgl/

Contribution to the IIAS /IISA Conference

Towards Quality Governance for Sustainable Growth and Development

New Delhi, 5 - 9-11-2002

Carl-Heinz David

Subsidiarity- a Legal Principle to Limit International/ Supra-National Supremacy over National Governance ?

Lessons from the EU-Debate on Subsidiarity

Subsidiarität- Ein Rechtsprinzip zur Begrenzung internationalen / supra-nationalen Vorranges

gegenüber nationaler Regierung ?

Lehren aus der EU- Debatte über Subsidiarität

1. Introduction

Subsidiarity has been considered as a political and legal principle against fascism and communism, at least in the west European sphere since the late twenties/ early 30ies of the last (20th) century. The principle of Subsidiarity had a revival after World War II in a modified way when in some European countries the gone fascistic regimes had to be replaced by new democratic constitutional orders, as in (Western-) Germany or Italy. A the same time subsidiarity was applied an antagonistic principle against formation of communistic governmental and social systems and the establishment of the Iron Wall.

Recently, since the early nineties ( of 20th Century), the principle of Subsidiarity experienced a considerable Renaissance in the European Union due to a widespread political malcontent with the EU-member states and their citizens cause by the continuos extension of EU-jurisdictions with prejudice to the powers and jurisdictions of EU- member states and their sub-entities ( e.g. federal states, local government authorities etc.), not ever explicitly transferred by the EU-Treaties to EU level.. As in connection with this, many citizens in the EU-member states felt subject to increasing bureaucratic pressures and burdens by the EU-administration, the issue of subsidiarity was further extended to the aspect of a better citizens involvement in EU affairs.

In various EU-documents subsidiarity appears in the text. As the meaning of subsidiarity is vague, it has been for long time disputed, whether it is just a political term or both political and a legal term. Since subsidiarity appears in the text of the amended basic treaty, it juridical relevance is beyond doubt, while the detailed content stays indefinite. Anyway subsidiarity represents a far reaching political concept, how to cope with a disputed distribution of powers between the supra-national body of the EU and its member states..

This conceptual and historical background of subsidiarity rises the question whether subsidiarity has a political and legal potential to be extended to a world wide situation in which sustainable growth and development require a rising co-operation between international / supranational organisations and the involved national governments with their organisational levels and sub-entities, which might be (semi)private or public . Relevant actors in so far might be federal states, regions, counties, cities, communities, social agencies , "quasi non-governmental organisations -so called "quangos".

This might be further be extended to the involvement of the single citizens , who join into the co-operation for instance by taking over certain responsibilities for proper self-help or through authorising their political representatives, so that can be considered as in a wider sense as a part of a global, or at least international or supranational network of powers, functions and jurisdictions, which might be sometimes indefinite its juridical dimension, but at least works within a certain framework of procedures, which might as well reflect the principle of subsidiarity.

Under this various aspects, subsidiarity might be applicable as a legally or constitutionally relevant principle to limit the virtual international or supra-national supremacy over national governance including its various sub-levels.

2. The philosophical and legal roots of Subsidiarity

The principle of subsidiarity is being applied in various political and juridical contexts. Anyway, subsidiarity has theological, philosophical and political backgrounds with strong roots going back to state philosophers of the 15th century and later. In 1931 the principle of subsidiarity re-gained actual relevance by the papal (social) Encyclica Quadragesimo Anno, which was determined to counteract totalitarian and extreme liberal tendencies applied at that time in fascistic and communistic countries.. Retrospecting, it is highly disputed whether this Encylica has been successful in this respect or not ( as many critics say), but, anyway this Encyclica permanently put subsidiarity on the political, social and theological agenda until today.

Coming from different liberal, anti-fascist root the issue of subsidiarity played for instance a major role , when the new German constitution (Grundgesetz-GG) became adopted in 1949. Though it was not explicitly mentioned in the text, it was undisputedly the implicit concept behind various constitutional regulations, which gave for instance constitutional protection for individuals and social entities, as the family is. Only when the relationship of the federal Government and the federal states Governments with respect to European Community had to be more precisely to be addressed by a later (1992)amendment of the constitution by introducing Art. 23a GG, the principle of subsidiarity became explicitly mentioned.1

The explicit reference to "subsidiarity" in the German Constitution goes back to intensive discussions on future of the European Community/Union, which since the beginning 90ies of the last ( 20th) Century continuously addressed the principle of subsidiarity as a major political and legal issue on the principal EU conferences dealing with the amendment of the EU-Treaties. These are in particular the conferences of Maastricht( 1992), Amsterdam(1997) and Nizza (2001) which passed major treaties amending the original basic treaties of Rome in an un-precedented way.

So, more and more, subsidiarity has become ( more recently together with the principle of proportionality) a major issue in documents on governance in the EU 2 and in the discussion of a future EU- constitution.

3. Subsidiarity - general and specific meaning of the term

There exists no clear definition, what core concept of the principle of subsidiarity really is. In a way it is related to a range of major constitutional principle, in particular to federalism, to democracy and to basic human rights. In particular subsidiarity is less obligatory its political and juridical consequences respective to the loss of sovereignty which the member states had to face if the EU would dispose on a federal structure. So, subsidiarity might be considered in a way as a "soft" edition of a federalistic structural principle.

There is a general (trivial?)understanding that subsidiarity implies that the higher level of an organisation shall have or exercise only those jurisdictions and function , which the lower level is unable to cope with respective to the resolution of a specific issue or problem. The idea behind subsidiarity is to save the existence and the function of lower level, which is ultimately the individual person or at least the family involved.

This general concept appears to be unable to replace the existing legal and social structures of governance in states, which provide individual protection bases on a detailed constitutional or legal protective framework of fundamental rights, respective protecting procedures organisational structures, which appear to be more effective in so far. So the principle of subsidiarity in the legal should not be related to the protection of individual positions, though the papal encyclica "Quadragesimo Anno" of 1931 undoubtedly aimed at such a kind of protection for the individual against totalitarian state suppression. It might be misleading insofar, that the EU argues that subsidiarity could help to improve the understanding and the acceptance of EU by the citizen. This focuses more the positive political acceptance of the EU by the citizens in the interest of the EU and their representatives than producing an advantage favouring of the individual citizen..

So focussing the European discussion, the principle of subsidiarity appears to concentrate on the relationship between the supra-national level of the EU Authorities and the level of the member-states, which are in terms of politics not all monolithic, but may dispose on various more or less politically or in legal term independent sub-levels, so in particular the federal states in member states with a federal constitutional structure or the local government authorities, in so far as they dispose on proper jurisdictions and powers.. So, an still unresolved issue is, whether the subsidiarity, if applied for the relationship between EU and member states, has to be applied as well to the internal structure of the governance, organisation and administration of the member states themselves. This makes clear that recognition of a principle of subsidiarity might have reciprocal effects on both the relationship between EU and the member states on the one hand and the internal constitutional situation on the other.3

Looking more closely on the specific case of the application of the principle of subsidiarity within the EU it appears that the principle of subsidiarity is used to cope with the contradictorily disputed , politically still unresolved issue of the basic structure of the EU- government as federal or quasi-federal or rather a far less obligatory form of co-operative government.

The principle of Subsidiarity allows to avoid a clear political and constitutional decision towards a potential federal structure of the European Union. So central states, as Great Britain or France can keep internally their centralised government structure and at the same time federal states as Germany to can harmonise its internal federal constitutional structure with the member state orientated EU- decision making procedures. In a way the common specific political solution has been achieved based on a multi-purpose concept of subsidiarity, a sort of an multi purpose umbrella concept, under which many involved parties with various differing political interests can meet.

4. The Range of Application for the Principle of Subsidiarity

The provisions of the Treaty on the European Community (TEC)supplemented by the Treaty on the European Union -TEU, which have amended the original Treaty of Rome in major respect, do not at all draw a clear distinction between the functions, powers and jurisdictions within the realm of the EU authorities/bodies and the member states, so allowing the EU-authorities a progressive extension of their responsibilities in pursuing .their political goals. Major examples for the extension and the change a the EU- responsibility respective to specific fields of political activity ,initially not explicitly mentioned in the Treaties, are for instance the environmental policy and the launch of a European Spatial Development Policy (ESDP).The extension of the EU- responsibilities do not only apply to the political interests of the EU .Commission, which has a strong position in the EU law making process, but as well to other EU-bodies, as for instance the European Parliament, which is interested to keep (and of course to extend ) the reached constitutional position in the EU-decision procedure and so objects any re-transfers to jurisdictions and powers to the member states.

The general rule in the Treaty ,which says that the EU can only act within the framework of powers conferred upon the EU and of the objectives designed to it(Art. 5 para 1 ECT, the so called principle of conferred powers), appears to leave in principle all not explicitly transferred jurisdiction to the member states. But the wording of this principle is misleading, as actually it does not leave specific clear fields of political activity undisputedly within the realm of the member states. There exist various legal approaches to strengthen the EU- jurisdiction repective to those remaining with the member states, which to describe it beyond this article.Anyway , the basic realm of the principle of subsidiarity appears to rather restriced regarding the general distribution of powers.

So, in the 90ies there has been a discussion whether the principle of subsidiarity is at all a legal principle. But after various amendments of the EU Treaty, which be reported in more detail below, the legal relevance of the principle beyond doubt. But the question continues, what the core issue of subsidiarity is in legal terms and if there is a substantial range for the legal application.

In particular regional movements ( below EU- member state level), among them the federal states within the Federal Republic of Germany tried to use the launch of the principle of subsidiarity to extend their political influence on the EU decision and law making process, but had to face much (implicit) resistance from various actors on EU and on member states level.

5. EU-Efforts to Establish the Principle of Subsidiarity while Restricting it at same time

The last decade has brought change to the EU in an unprecedented way. The launch of the principle of subsidiarity in early 90th was certainly not a key issue of the change. It was related to various other issues, and in so far it is still today a part of more complex solutions and compromises achieved.

Subsidiarity was first mentioned in the Preamble , that means outside the explicit text,of the Treaty of the European Union (Maastricht, 1992) 4. This was followed by an explicit introduction of the principle in Art. 5 of the Treaty of the European Community by the Treaty of Amsterdam, 1997 5. This amendment was supplemented by a Protocol on the application of the principles of subsidiary and proportionality 6, which contained additional procedural and material aspects how to practise the principle. The Treaty of Nice (2000) resumed the topic of subsidiarity, stressing that future conferences should deal in more detail with this issue. Reflecting the principle of subsidiarity a more precise delimitation of powers between the European Union and the Member to be established States is and monitored 7.

The amendments of the ECT/EUT mentioned before have been subjected to various critical and sceptic considerations of politicians and lawyers. Today it is accepted that he principle of subsidiarity is a legal, not just a pure political principle, though its legal implications are uncertain and difficult to define. So it is disputed, whether the principle touches at all legal aspects of the distribution of powers and jurisdiction between the EU and its member states, that means whether the principle implies a modification of the system of jurisdiction and powers defined in the treaties at all.. That is an point at issue in particular, because the prerequisites for the application of the principle of subsidiarity as regulated in Art. 5 (ex 3b) ECT and in the mentioned Annex Protocol No.30 are defined in a way, which appear to leave existing distribution of powers in favour of the EU virtually untouched. The mentioned criteria , as for instance "exclusive competence (of the EU)" or "better achievement of objectives on Community level by reason of scale or effects of the proposed action" or "not calling in question powers conferred on the European Community by the Treaty" focus more a stabilisation of the existing present distribution of powers, than addressing a major change in respect to this.

That is, why lawyers recognise the principle of subsidiarity rather as procedural rule, which will be specified in the procedural co-operation of the various EU authorities and bodies, in particular the procedural involvement of the Commission, the European Parliament and the Committee of the Regions and the member or representatives of these bodies.

In addition to that the principle of subsidiarity implies a requirement to consider on the part of the EU what would probably the best or most efficient level of activity for a proposed action. This is only partly a legal aspect, but has moreover political and administrative dimensions. A rational assessment based on scientific methods would probably require a valuation based on a kind of cost benefit analysis in order to control whether a task or a power should be better undertaken on Community, on member state or on sub-member state level. This in legal terms had to be submitted to the control by the EU law court system in cases of dispute and would imply a new dimension of law court control, which might rather fit in the US judicial system than in the present European and EU judicial system.

Anyway, a clear result of the political application of the principle of subsidiarity in recent years was, as the EU-Commission emphasises in various reports, that under the rule of the principle of subsidiarity the number of regulations and directives issued by the EU considerably declined. This appears a distinct response to the raised political demands for less regulatory and administrative interference by the EU, though not directly compatible with the more specific purposes originally pursued ( e.g. by the German federal states) to introduce the principle into to political and legal system of the EU.

6. Lessons from EU Experiences for International/Global Governance

The experiences of the European Union with the introduction of the principle of subsidiarity are that strong legal and administrative structures based on agreed treatises and their application and practise will not easily transformed into substantial changes or modifications through such a new rather soft political and legal principle, as the principle of subsidiarity is. This experience the EU might have in common with the principle of subsidiarity contained in the papal Encyclica "Quadragesimo Anno", which according to the retrospective valuation by one of its primary co-authors appeared 8 to be rather a failure in the fight against totalitarian regimes in the pre-war, war and post-war time of World War II, but which kept considerable importance for the relationship between state and church respective to the provision of social and educational services until the present day, as for instance in the debate for state support of respective church run institutions or at least taht the state abstains from parallel competitive activities in these fields of church activities.

On the other hand the underlying philosophical, political and legal roots appear to provide a substantial base, which tend to be underestimated in its value and significance, if concentrating on a mere juridical interpretation. As many major principles the underlying concept might be to a certain degree indefinite, but nevertheless politically far-reaching. So the sceptic evaluation of the principle of subsidiarity might be not justified.

In a way the principle of subsidiarity implies a denouncement of hierarchical governmental structures, which are similarly pursued by other constitutional principles as those of democracy, the rule of law, citizens participation etc., which primarily apply to the internal constitutional and administrative state structures, but are incompletely developed and do not appear directly applicable in systems of international or even global governance or co-governance. Subsidiarity appears to be a considerable "soft" instrument or principle to launch steps toward a political share of responsibilities and powers between the various levels of governance and de-bureaucratisation even in international/supra-national dimension, launching new concepts of co-operation between the various involved levels, including sub-state levels and , public, quasi-public or even private involvement without having explicit democratic organisational and procedural structures.

It would interesting to learn whether there exist also principles similar to the more western orientated principle of subsidiarity even in other cultures, e.g. in the Far East or the Islamic world, which could perhaps be used a common base to effectuate a better reciprocal understanding of the various cultural approaches otherwise clashing on the theatre of international and global governance.


1 Article 23a para 1 of the German Federal Constitution ( Grundgesetz) :
(1) To realise a unified Europe, Germany participates in the development of theEuropean Union which is bound to democratic, rule of law, social and federal principles and to the principle of subsidiarity and provides a protection of fundamental rights essentially equivalent to that of this Constitution.

2 European Commission,White Paper on Governance in Europe, 2001,Com (2001) 428 final)

3 The uncertainty was overruled by putting respective regulations in an Annex of the Treaty and not explicitly in the text itself, see below FN. 6

4 Preamble (of the Treaty of Maastricht) and Art.2 para 2 (ex Art.B para 2)

5 Art.5 b ECT (Treaty establishing the European Community) (according to the renumbering by the Treaty of Amsterdam, was Art.3 b):

(1)The Community shall act within the limits of the powers conferred upon it by this treaty and of the objectives assigned to it therin.

(2) In areas which do fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

(3) Any action by the Community shall not go beyond what is necessary to the achieve the objectives of this Treaty

6Annex 30 of the ECT( amendment by the Treaty of Amsterdam)

7 Treaty of Nice, Anex, 23rd Declaration on the Future of the Union , No. 5. Subsidiarity is mentioned besides the Charter of Fundamental Rights and the better simplification of the Treaties through better standing without changing their meaning as major political issues for the future.

8 Father Nell-Breuning, SJ, see: Gabriel, Karl (2000)


(references without further details concern texts available in the world wide web)

Backhaus, Jürgen C, Subsidiarity as a Constitutional Principle in Environmental Policy, about 1998

Brucks, Wernher, Subsidiarität- Definition und Konkretisierung eines gesellschaflichen Strukturprinzipes, Zürich, 1997

Burca (de Burca), Grainne, Re appaising Subsidiarity ´s Significance after Amsterdam, Harvard Jean Monnet Chair, Working Paper 7/99, 1999

Ettwig, Sylvie, Subsidiarität und Demokratisierung der Europäischen Union, Verlag Deutscher Verein für öffentliche und private Fürsorge, Kassel ,1999

European Policy Center ( no explicit author), Beyond the Delimitation of Competences implementing Subsidiarity, The "Europe we need" working paper, 2001

EU-Vertrag (incl, Treaties of Amsterdam and Nice), 5.Auflage, Beck DTV Texte, 2001

Evangelisches Staatslexikon, 2.Aufl.,1975, Stichwort "Subsidiaritätsprinzip", Bearbeiter: Roman Herzog.

Follesdal, Andreas, Subsidiarity and Democratic Deliberation, Arena Working Papers WP 99/21

Gabriel, Karl Das Subsidiaritätsprinzip in Quadragesimo Anno- Zur ideenpolitischen Grenze eines Grundbegriffs der katholischen Soziallehre, in: (Ed.) Rauscher, Anton, Subsidiarität-Strukturprinzip in Staat und Gesellschaft, Bachem Verlag, Köln, 2000, pag. 13 ff.

Hense, Ansgar, Subsidiarität- rechtliche Zaubeformel und Rettungsanker?, in Deutsches Verwaltungsblatt 2001, s. 875 ff.

Pagh, Peter,(Prof. Univ.of Copenhagen, Fac.of Law) Does the principle of subsidiarity affect the efficiency of EU Environmental Law, about 1999

Schilling, Theodor, Subsidiarity as a Rule and a Principle or: Taking Subsidiarity seriously, 1995

Sinnott, Richard, Integration Theorie, Subsidiarity and the Internationalisation of Issues, The Implication of Legitimacy, European University Institute, Florence, Paper No. 94/13, 1994

Trachtmann, Joel. P., Trade and .. Problems, Cost-Benefit Analysis and Subsidiarity, 1997