Subsidiarity: Can the word that saved Maastricht save May?

As anti-establishment and anti-European parties gain prominence in many countries around Europe, the division of competences between the EU and Member States is again at the centre of the debate. “Subsidiarity” is bound to be invoked as a healing medicine. This was arguably the case already back in 1992, when the principle of subsidiarity was introduced in the European Treaties in Maastricht after a long period of intense Community intervention towards completing the Single Market, that had Member States concerned. As we know, the Maastricht Treaty laid down the foundations of the Euro and introduced the concept of a European Union that would go far beyond economic integration, towards European citizenship, a Common Foreign and Security Policy and closer cooperation on Justice and Home Affairs. An agenda so ambitious that it has indeed been said that “subsidiarity” might have been the word that saved that Treaty. Again today, the principle of subsidiarity is being invoked in response to the fears of those that see national sovereignties being threatened by European integration. Subsidiarity as a building principle of Europe was discussed on 15-16 November in Bregenz, at a high-level conference organized by the Austrian Presidency, where the Austrian Chancellor called on the EU to focus on the important things, like migration and security, and leave the “small questions for Member States” (hardly new and somewhat ironic). The Conference comes on the heels of a new Commission Communication on the matter (“The principles of subsidiarity and proportionality: Strengthening their role in the EU’s policymaking”, 23 October). This in turn follows up on the recommendations published over the summer by the Subsidiarity and Proportionality Task Force, which Junker set up in 2017 to take forward his reflection on the Future of Europe. The leading candidates of the mainstream parties are using the subsidiarity rhetoric as well. Manfred Weber, the EPP candidate for Commission President, stresses that he comes from a small town in lower Bavaria and that “here and everywhere else people are asking us to bring Europe back home”. On the other side of the conventional camp, the Socialists and Democrats are being led by, well, the chair of the Subsidiarity and Proportionality Task Force and champion of Better Regulation, Frans Timmermans. Not to be outdone, the Liberals and Democrats commit in their November European Election Manifesto to “support initiatives to re-evaluate and re-negotiate the division of competencies between the EU and its Member States, strongly keeping in mind the principles of simplification and subsidiarity.” But will subsidiarity really help in the debate during the political campaign ahead? Under the principle of subsidiarity as established in the Treaties, in areas of shared competence between the EU and Member States, “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 […] but can rather […] be better achieved at Union level”. This, however, is of little help in solving competence conflicts where these arise, because it assumes that we all agree on the goal to be achieved, the only matter in doubt being who is best placed to take it forward. And of course, where the goal is to harmonize, the subsidiarity check is a mere formality. Case in point: when the Subsidiarity and Proportionality Task Force was asked to identify where EU action is redundant, the answer was: nowhere. According to the report published in July “there is EU value added in all existing areas of activity and the task force did not, therefore, identify any Treaty competences or policy areas that should be re-delegated definitively, in whole or in part, to the member states“. This has left the Commission with little to come forward with in terms of the “doing less at Union level” rhetoric. The Commission tries to illustrate its efforts to hand responsibility back to national governments by mentioning competition law enforcement and its proposal to reform the Common Agricultural Policy. But EU competition policy is an exclusive EU competence, not subject to the subsidiarity principle under the Treaties, and policy making in this area remains very much in the EU’s hands. Regarding CAP reform, this is far from a done deal and the proposed approach, whereby member states would have more flexibility in implementing the common policy, has already come under heavy criticism, the delegation of powers again being perceived as purely administrative. The Commission Communication on subsidiarity (mirroring the Task Force report) ended up being a technical listing of innumerable and largely irrelevant ameliorations to the way the principle should be applied in practice. This was bound to happen. The principle of subsidiarity, however, should be seen first and foremost as a political question, not a legal one. It can be conceived in much broader terms, beyond the mere attribution of competences between different levels of power: it can refer broadly to the limits of the right and duty of the public authority to intervene in social and economic affairs. This is of course an eminently political question, relevant to all policy-making, at whatever level and regardless of who is implementing the measures. Sensible European politicians would be wise to stimulate this debate in the run-up to the 2019 elections. Not addressing the issue of subsidiarity in its broadest and most political sense, or limiting discussions to its most technocratic aspects, will leave us hostage to populist parties’ simplistic agenda and Manichean view of “the eurocrats vs. the people”.