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In general, subsidiarity is the principle that governmental power should be exercised at the lowest possible level. For example, a national government should not legislate in areas more appropriate to a regional government. In EU law, subsidiarity arises in the context of Art. 5 of the ECTreaty, the second paragraph of which says:
``In areas which do not 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.''
This provision was inserted by the TreatyOfMaastricht in an attempt to allay the fears of national governments (mostly of a right-wing persuasion) which were concerned about the increasing powers of the EU (see CompetenceOfTheEU) and the apparent drift towards a federalization of Europe.
Because Art. 5 does not make it clear how the principle of subsidiarity is to be applied procedurally within the EU, the TreatyOfAmsterdam has an attached Protocol on the application of subsidiarity. This states, for example, that the Commission (see EuropeanCommission) must make clear, in all new legislative proposals, why it is nececssary to legislate at the Community level. In addition, it states that Directives should be used in preference to Regulations (see CommunityDecision-makingProcess), because this leaves the fine details of implementation to the member states.
The Treaties and the Protocol do not attempt to define subsidiarity; perhaps such a definition is impossible. However, for Art. 5 to have any teeth at all, it must at least be possible to challenge EU action on the grounds of subsidiarity. The ECJ has made it clear that it is willing to entertain such challenges but, although they have been issued, as far as I know none has ever succeeded. To be fair to the ECJ, to ask it to rule on matters of subsidiarity is to ask it to become involved in quite complex areas of policy. The risk is that, if the ECJ does decide that a particular provision is invalid on such grounds, it will be seen as making a political decision. The current PrimeMinister, Tony Blair, has made proposals for an independent review commission to consider all new UK legislation with regard to subsidiarity.
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