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NUMERO 7 - 28/03/2018

 Trilogues, Early Warning System and Legitimacy

European Union’s multilevel governance issues have been of great relevance in the recent worldwide legal scholarship. On the one side, the European Union (EU) has improved its regulatory approach, but on the other the actual implementation of those policies has been increasingly moved to levels of governments closer to the people, whether national or sub-national. What happened is very well known in the EU legal system: it is called subsidiarity and it goes under the principle derived from federalist theories which stipulate that policymaking should occur at the lowest effective level. The principle of subsidiarity is not focused on powers allocation, but rather on the regulation of the use of powers between the EU and the Member States. Looking at the Treaty and the European Court of Justice (ECJ) case-law, one may find a very few policy areas which do not, at least potentially, fall, directly or indirectly, within the competences of the Union. The third paragraph of Article 5 makes it clear that the subsidiarity principle governs all non-exclusive competences: “in areas which do not fall within its exclusive competence the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”. However, it does not help solving the issue whether the EU is the most appropriate decision-maker, and Member States are often unhappy about the definition of what goes under the EU control and what lies on their own authority. Each policy not exclusively given to the EU has to clear a double test in order to verify the best decision-making level allocation. First, the EU bodies must demonstrate that the objectives of the proposed action cannot be sufficiently achieved by the Member States “either at central level or at regional and local level”. Second, they should also demonstrate that the proposed action “by reason of the scale or effects, can be better achieved at Union level”.  The wording of Article 5 raised well-founded doubts on the legal nature of subsidiarity in the EU legal system. Whether the principle of subsidiarity could be used as the legal basis in front of ECJ or whether it would only produce limited political effects is still strongly discussed. Such doubts regard the criteria given in paragraph 2 for justifying the EU action: not sufficiently and better are indeed very ambiguous legal concepts. As regard to a lot of policy issues, what is “sufficiently achieved” is not immediately and definitely obvious: more effective, more democratic, more consistent with other EU goals, are all good options to pick for choosing, on a case-by-case basis, the best definition for “sufficiently achieved”. That provision only regards the relationship between the Community and the Member States and leaves the sub-national level – mainly the regions - out. Moreover, it refers to the relationship between the EU and the Member States as a whole, not an individual State; but in some policy areas of the EU legal system, powers are distributed differently. Finally, the principle of subsidiarity concurs with other principles in the Treaty and cannot claim priority in all cases... (segue)

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