EU Subsidiarity: what’s that? Or: how to decide who does what in the EU

Bureaucracy unchained

​The EU has long had to combat the damaging image that it is a bureaucratic conveyor-belt of laws and regulations without an ‘off’ button. According to this image, Brussels red tape will eventually tie down anything that moves.

The main instrument that the EU Treaties offer to combat this image is through their provisions on ‘subsidiarity’.

‘Subsidiarity’ is an ugly word. For many people it is yet another unintelligible piece of Brussels jargon. However, it stands for a highly important principle. The provisions are intended to ensure that the EU does not act without justification. It is about sorting out who does what – the EU or the Member States and their regions.

Subsidiarity is not a concept to make the heart sing. But, when we look at Euroscepticism in the Union, or the rise of nationalist parties, it is important to address the conveyor-belt image. It reflects a world of confusion about who should do what – a world where the politicians in national capitals can blame Brussels for popular discontents and the institutions in Brussels can blame politicians in national capitals.

​So! Bear with me. This long blog will take you through the basics.

Subsidiarity and ‘conferral’

The EU Treaty provisions on subsidiarity have to be understood in the context of another eye-glazing piece of Brussels jargon - the principle of ‘conferral’.

Under this principle, the EU acts under powers ‘conferred’ on it by the Member States. It has to stay within these powers. Some powers are ‘exclusive’. This means that only the EU can act - For example, in respect of the customs union. Oher powers are to be ‘shared’ with the Member States, or to be used to ‘support, coordinate or supplement’ the actions of Member States.

‘Subsidiarity’ comes into play in justifying the taking of EU measures in areas of shared or supporting powers. In these areas they help determine who does what – the EU or the Member States. They are potentially the ‘stop’ button for the conveyor belt.

There is a separate question (for a future blog?) about why the EU Treaties contain so many areas of shared or supporting powers. The internal arrangements of many countries are much more precise about where the central or regional or local jurisdictions are to act. However, this blog takes subsidiarity as a given. It is important therefore that the provisions actually work.

Subsidiarity and qualitative decision making methods

In general, in the EU and in other areas of the world, decisions on public policy can be made in three main ways:

The first way is to rely just on what is called a ‘decision rule’. For example, a decision might be made simply on the basis that there is a majority in favour.

The second way is to look for quantified evidence in support of a decision. For example, governments undertake measures to mitigate the effects of climate change because they can point to quantified evidence showing that human activity is affecting climate, and that a particular policy will have a quantifiable mitigating impact.

The third way is to follow ’qualitative’ rules. These are rules about procedures for decision taking when quantitative evidence is not available, or is inadequate.

Broadly speaking, the EU’s subsidiarity provisions fall within this third class.

In the real world, including in the EU, decision procedures are hybrids. They involve a mixture of relying on decision rules, quantification and qualitative rules.

However, in order to get at the basic logic underlying the EU’s subsidiarity provisions, this blog looks at them simply as qualitative decision procedures.

Two kinds of qualitative procedure

Qualitative rules for making decisions typically distinguish between two main classes of procedure.
The first procedure aims to establish the importance of a policy – how and why it is important.
The second procedure involves what is called a ‘discard’ procedure. This involves putting aside policy options that have unwanted effects.

Both types of procedure are incorporated in the EU’s subsidiarity provisions.

EU criteria for measuring ‘importance’ and for discarding

First, the EU’s subsidiarity provisions set up criteria assessing why it is important for the EU to act. They refer to objectives that can ‘by reason of the scale or effects of the proposed action, be better achieved at Union level’.

Secondly, the provisions also contain a discard principle. ‘The Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States’. In other words, if investigation shows that the objectives can be sufficiently achieved by the Member States themselves, the idea of EU action can be put aside and discarded.

In addition, the provisions also contain a ‘proportionality’ statement. This states that ‘the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Union’.

This can be seen as a supplementary discard principle. Any EU proposal that is not ‘proportional’ should be discarded. Any EU proposal that takes an EU hammer to crack a nut should be set aside.

‘Search’ procedures and sequencing

These subsidiarity provisions can be seen as ‘search’ criteria. In making decisions about who shall act in the EU and why, they help to search for what is important, and to search for what is unwanted.

Qualitative search procedures typically involve sequencing an inquiry. The most familiar example of sequencing comes from the law. Through a sequence of court hearings and appeals, judicial procedures aim, by the end, to have established, defined and refined the key facts and issues that have to be decided.

Sequencing also applies to the formation of public policy. It applies particularly in situations, such as the EU, where there are many different actors and jurisdictions involved in making judgments about whether action is necessary and who should act and why.

There are two reasons in public policy making why sequencing is important.

The first is that different people, groups, and different jurisdictions can see the same thing in different ways. One group, or sub-jurisdiction, can see the testing of GM grains as helpful for alleviating future food scarcity. Another can see it as environmental contamination. Sequencing allows for different ways of seeing, or framing, the significance of a matter of public policy.

The second is that sequencing helps establish whether the time is ripe for public policy action. It helps establish whether there is an adverse trend, and whether that trend has created some kind of ‘tipping point’ or momentum that might become irreversible. It enables policy makers to see if the critical moment has arrived for intervention.

The neutrality of search

Search procedures have to guard against bias. If the criteria for the search are biased in favour of looking in one direction rather than another then the result will be predetermined.

In this context there is an important issue about the starting point of the search for who does what in the EU.

One possible starting point involves a presumption in favour of the benefits that the EU derives from its multiple jurisdictions. They, and the EU as a whole, benefit from trying out different approaches, mutual lesson learning and a desire to emulate what works best.

This implies that the burden of proof to justify EU action should be set high.

A different starting point is to look for reasons for the EU to act. This approach helps to build up the EU on the basis of an ever growing reach into different policy areas. It reflects the Union’s so-called ‘functional’ approach to integration. This is the perspective incorporated in the Commission’s 2017 White Paper on the Future of Europe.

It sets the burden of proof low.

The subsidiarity provisions in the EU Treaties contain a defence against a low burden of proof for the EU to act. They allow for national parliaments to have a say.

If enough national parliaments have reservations about what is proposed by EU institutions they can insist on a review. The review may lead the proposal to be withdrawn by the EU, or it can be amended or maintained. National parliaments cannot block.

Commission review

The operation of the EU’s subsidiarity provisions has recently been reviewed. In March 2017 the Commission published a discussion paper on the Future of Europe. In order to investigate one possible future scenario where the EU does less more efficiently, the Commission set up a Task Force to examine the workings of subsidiarity.

The Task Force reported in July 2018 recommending what it called ‘Active Subsidiarity’ and ’a new way of working’.

The recommendations essentially focus on sequencing. They are primarily about making sure that all member state parliaments, local and regional bodies are better able to give their assessment of a proposal coming out of Brussels based on a common ‘model grid’.

The ‘model grid’ is put forward because, according to the Task Force, ’a precise definition of subsidiarity no longer exists in the Treaties’. The grid provides a check list of about 20 questions to be asked around the Treaty criteria of what is important, (something that can be better achieved by the Union) and what can be discarded (what can be sufficiently attained by the Member States).

The report rejects the idea of a ‘red card’ procedure under which national parliaments would be able to block a proposal rather than simply be able to call for a review.

Does the EU shape up?

The Task Force is correct to look for a new way of making subsidiarity actually work. However, the report is defective in three main ways.

First, it lacks an analytic backbone. It does not carry out any analytic discussion of the two key classes of qualitative procedure - procedures for judging ‘importance’ and procedures for what should be discarded. The model grid confuses the two. Nor does the report identify the importance of judgments on critical timing.

Secondly, it fails to consider the issue of neutrality, or bias, in the EU’s search procedures for who should do what. The Task Force’s own recommendations are not neutral. Its model grid is intended to ‘highlight the concept of European added value’.

For example, the discard test that the proposed action can be ‘sufficiently achieved’ by the member states is viewed as a search for reasons why something cannot be sufficiently achieved by member states. Thus, the ‘model grid’ proposed by the Task Force puts forward the test that Member States might be overstretched.

Thirdly, the Task Force does not consider how the EU’s subsidiarity provisions might be rewritten. They can be reshaped to better define the importance of why the EU should act. They can also be reshaped in order to sharpen the discard criterion of why the EU should not act.

Rewriting the subsidiarity provisions

Analysis of qualitative procedures shows that, if a key aim of the subsidiarity provisions is to offer effective protection against the Brussels conveyor-belt, then the Treaty provisions themselves must be rewritten or radically re-interpreted.

First, there needs to be a higher burden of proof in order to demonstrate the importance of EU action. It is when policies of member states result in damage to a sufficient number of others, or undermine a core objective of the Union, or risk establishing adverse and irreversible trends, that it is important that the EU steps in.

Secondly, the discard criterion also needs to be much sharper. It needs to focus on the different ways in which national parliaments, regional and local governments might see unwanted aspects in a proposal for EU action. For example, they need to take into account the unpredictable effects of an EU proposal. If a sufficient number of Member States see unwanted aspects, then the EU proposal should be discarded.

Thirdly, the Task Force was mistaken in rejecting the idea of a red card system. If enough national parliaments do not consider that the critical moment has arrived for the EU to take action, then, it should not.

*****

Subsidiarity is a word to which EU institutions have long paid a ritual genuflection. Both politicians and bureaucrats in Brussels bend the knee and move along their way regardless.

​The recent Task Force report advocating procedures that highlight ‘European added value’ will reinforce the damaging perception of Brussels as a conveyor-belt without an ’off’ button. It is time to rewrite the Treaty provisions for both subsidiarity and conferral.