European Court of Justice

European Court of Justice

European Court of Justice

Subsidiarity and the Court of Justice

It is generally accepted that concerns over excessive centralisation of decision-making and over the expanding competence of the Community at the expense of Member States and sub-national levels of government, resulting in the desire to impose some kind of formal discipline or legal restraint on its policy-making functions, formed a significant part of the motivation for introducing the subsidiarity principle into European law. (Craig, Paul; de Búrca, Gráinne 2003, 62-78)

The legal formulation of subsidiarity in Article 5 (ex 3b) EC and in the Amsterdam Treaty protocol, however, is essentially directed at the legislative institutions of the Community. The notable omission is the Court of Justice, which is treated as being beyond the scope of application of the subsidiarity principle insofar as its interpretative function is concerned. Although Article 5 (3b) EC seems inclusive, in that it does not specify which of the Community institutions is or is not subject to the subsidiarity principle, and although the Amsterdam Protocol also initially requires that "each institution" shall, in the exercise of its powers, ensure compliance with the principles of subsidiarity and proportionality, the subsequent provisions of the Protocol seem to exempt the Court of Justice, at least in its role of interpreting the scope of the Treaty, from the application of subsidiarity. The protocol goes on to state that "the principle of subsidiarity does not call into question the powers conferred on the European Community by the Treaty, as interpreted by the Court of Justice" but provides a guide as to how those powers are to be exercised at Community level. (Craig, Paul; de Búrca, Gráinne 2003, 62-78)

This statement distinguishes the Court's interpretation of the scope of Community powers under the Treaty, from their actual exercise by the institutions and states that the principle of subsidiarity does not apply to the Court's interpretation of those powers which are conferred on the Community by the Treaty. This suggests that subsidiarity should operate as a general principle to guide the legislative institutions in their exercise of power, and not - although notably the protocol does not state this in the case of the proportionality principle - as a principle which would influence the Court in deciding whether or not a particular provision of the Treaty should be read as conferring legislative power on the institutions. Thus it is clearly supportive of the Court's ultimate interpretative authority to determine what powers the Community has been given under the Treaty.

What the protocol and the other Agreements and guidelines before it do not seem to contemplate, however, is that the Court plays a role not only in determining the existence of the legislative powers which have been conferred by the Treaty on the political institutions, but also in interpreting the scope of Treaty provisions which, although they may be negatively worded rather than expressly power-conferring, are open to a number of interpretations capable of expanding the scope of Community law and correspondingly restricting ...