The powers currently exercised by the EU are formally laid out in the treaties. Since the first treaty, successive treaties have enlarged these powers. A common complaint is that the allocation of powers to the EU is not clearly defined enough: the Lisbon treaty was supposed to clarify them, but it would do so only to a modest degree. And it might not even come into force at all.
The ostensible basis upon which powers have been attributed to the EU level has been the principle of subsidiarity, namely as much as decentralisation as possible, as much centralisation as necessary. The word “subsidiarity” first entered the treaties at Maastricht, but has been implicit in the idea of federalism from the beginning. For example, the objectives of Federal Union adopted on 4 October 1939 were “a common government elected by and responsible to the people for their common affairs, with national self-government for national affairs”.
principle of subsidiarity is not a legal one but a political one
However, principle of subsidiarity is not a legal one but a political one – it is not an unambiguous guide to how the allocations will be made. In that sense, it is a term of the same quality as “democracy” or “human rights”. There is widespread agreement on the merits and outlines of the term, but there is much argument over exactly how to interpret it in any given situation.
Why should Europe act?
Although this article is about occasions when the EU should not act, it is worth being clear about the reasons why on other occasions it should. Here are five reasons:
(1) Issues that require the same rules in each member state to ensure fair competition, e.g. creating the single market
(2) Where there are specific cross-border implications, e.g. mobile phone roaming charges
(3) Where there are substantial spillover effects from a policy otherwise carried out in a single member state, e.g. the excessive deficit procedure
(4) Where the costs of a policy are too great for a single member state to bear, e.g. Galileo
(5) Where national policies gain additional effectiveness through being shared, e.g. foreign policy
All of these, particularly reason (5), depend on there being a significant common interest between the member states. In principle, an individual EU member state could have agreed a set of treaties like those of the EU with any group of 26 others democracies: in practice, each has only chosen to do so within Europe because that is where the common interests lie. But, going back to the principle of subsidiarity, having a common interest is not sufficient: it must also be necessary to act in common.
Road traffic safety
A good example of where the principle of subsidiarity is tested is the European policy on road traffic safety. For example, there is a directive that requires children under the age of 12 and less than 135 cm in height to sit on booster seats when travelling in the back of a car. (There are some exceptions for unexpected and urgent journeys, and a few other reasons like that.) The reason behind the law is that seatbelts fitted in cars – itself a mandatory requirement – are designed for adults and not children. Children, being smaller and still growing, need a different kind of protection, which the new booster seats are intended to provide.
Now, the aim of reducing road accidents is not controversial, but why should it be a reason for Europe to act?
In the treaties, road safety is a shared competence: this makes sense in the light of a growing level of cross-border transport flows and infrastructure planning, and the need to make any new vehicle standards consistent with the single market. But should this extend into the back seat of your car?
Published documents setting out the rationale for this policy say that “In some countries there is a lack of political will to accord road safety a high priority” and that the EU should create “Pressure on national governments to put road safety on the political agenda”.
But is this the task of the European Commission? Targets themselves are controversial: a reduction in road accidents does not come “free” and there are costs that have to be borne somewhere. What is the reason why the decision about incurring these costs should be a European decision and not left to the member states to decide for themselves?
The five reasons outlined earlier are reasons why, in principle, member states cannot act alone, and need Europe to act on their behalf. They do not include the reason that member states have chosen, in practice, not to act.
By this analysis, it is not the job of the European Union to rescue member states from their own failings. It is to protect member states from each other’s failings, but that is all.
Based on a talk given at the Ventotene seminar, 30 August 2008. Richard Laming is Director of Federal Union and may be contacted at richard at richardlaming.com. The opinions expressed are those of the author and not necessarily those of Federal Union.
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