Subsidiarity

Last updated

Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution. The Oxford English Dictionary defines subsidiarity as "the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level". [1] The concept is applicable in the fields of government, political science, neuropsychology, cybernetics, management and in military command (mission command). The OED adds that the term "subsidiarity" in English follows the early German usage of "Subsidiarität". [2] More distantly, it is derived from the Latin verb subsidio (to aid or help), and the related noun subsidium (aid or assistance).

Contents

The development of the concept of subsidiarity has roots in the natural law philosophy of Thomas Aquinas and was mediated by the social scientific theories of Luigi Taparelli, SJ, in his 1840–43 natural law treatise on the human person in society. [3] In that work, Taparelli established the criteria of just social order, which he referred to as "hypotactical right" and which came to be termed subsidiarity following German influences. [4]

Another origin of the concept is in the writings of Calvinist law-philosopher Johannes Althaus who used the word "subsidia" in 1603. [5] [6] As a principle of just social order, it became one of the pillars of modern Catholic social teaching. [3] [7] Subsidiarity is a general principle of European Union law. In the United States of America, Article VI, Paragraph 2 of the constitution of the United States is known as the Supremacy Clause. This establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. [8] The principle of States' Rights is sometimes interpreted as being established by the Tenth Amendment, which says that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Political theory

Alexis de Tocqueville's classic study, Democracy in America , may be viewed as an examination of the operation of the principle of subsidiarity in early 19th century America. Tocqueville noted that the French Revolution began with "a push towards decentralization… in the end, an extension of centralization". [9] He wrote that "Decentralization has, not only an administrative value, but also a civic dimension, since it increases the opportunities for citizens to take interest in public affairs; it makes them get accustomed to using freedom. And from the accumulation of these local, active, persnickety freedoms, is born the most efficient counterweight against the claims of the central government, even if it were supported by an impersonal, collective will." [10]

As Christian Democratic political parties were formed, they adopted the Catholic social teaching of subsidiarity, as well as the neo-Calvinist theological teaching of sphere sovereignty, with both Catholics and Protestants agreeing "that the principles of sphere sovereignty and subsidiarity boiled down to the same thing". [11]

The term "subsidiarity" is also used to refer to a tenet of some forms of conservative or libertarian thought in the United States. For example, conservative author Reid Buckley writes:

Will the American people never learn that, as a principle, to expect swift response and efficiency from government is fatuous? Will we never heed the principle of subsidiarity (in which our fathers were bred), namely that no public agency should do what a private agency can do better, and that no higher-level public agency should attempt to do what a lower-level agency can do better – that to the degree the principle of subsidiarity is violated, first local government, the state government, and then federal government wax in inefficiency? Moreover, the more powers that are invested in government, and the more powers that are wielded by government, the less well does government discharge its primary responsibilities, which are (1) defence of the commonwealth, (2) protection of the rights of citizens, and (3) support of just order. [12]

The United Nations Development Programme's 1999 report on decentralisation noted that subsidiarity was an important principle. It quoted one definition:

Decentralization, or decentralising governance, refers to the restructuring or reorganisation of authority so that there is a system of co-responsibility between institutions of governance at the central, regional and local levels according to the principle of subsidiarity, thus increasing the overall quality and effectiveness of the system of governance, while increasing the authority and capacities of sub-national levels. [13]

According to Richard Macrory, the positive effects of a political/economic system governed by the principle of subsidiarity include: [14]

He writes that the negative effects of a political/economic system governed by the principle of subsidiarity include:

General principle of European Union law

Subsidiarity is perhaps presently best known as a general principle of European Union law. According to this principle, the Union may only act (i.e. make laws) collectively where independent action of individual countries is insufficient without equal action by other members. The principle was established in the 1992 Treaty of Maastricht. [15] However, at the local level it was already a key element of the European Charter of Local Self-Government, an instrument of the Council of Europe promulgated in 1985 (see Article 4, Paragraph 3 of the Charter) (which states that the exercise of public responsibilities should be decentralised). Subsidiarity is related in essence to, but should not be confused with, the concept of a margin of appreciation.

Subsidiarity was established in EU law by the Treaty of Maastricht, which was signed on 7 February 1992 and entered into force on 1 November 1993. The present formulation is contained in Article 5(3) of the Treaty on European Union (consolidated version following the Treaty of Lisbon, which entered into force on 1 December 2009):

Under the principle of subsidiarity, 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.

The national parliaments of EU member states have an "early warning mechanism" whereby if one third raise an objection – a "yellow card" – on the basis that the principle of subsidiarity has been violated, then the proposal must be reviewed. If a majority do so – an "orange card" – then the council or parliament can vote it down immediately. If the logistical problems of putting this into practice are overcome, then the power of the national parliaments could be deemed an extra legislature, without a common debate or physical location: dubbed by EUObserver a "virtual third chamber". [16]

A more descriptive analysis of the principle can be found in Protocol 2 to the European Treaties. [17]

Court of Justice

The Court of Justice of the European Union in Luxembourg is the authority that has to decide whether a regulation falls within the exclusive competence [lower-alpha 1] of the Union, as defined by the Treaty on European Union and its predecessors. As the concept of subsidiarity has a political as well as a legal dimension, the Court of Justice has a reserved attitude toward judging whether EU legislation is consistent with the concept. The Court will examine only marginally whether the principle is fulfilled. A detailed explanation of the legislation is not required; it is enough that the EU institutions explain why national legislation seems inadequate and that Union law has an added value.

An example is the judgment of the Court of Justice of the European Union in a legal action taken by the Federal Republic of Germany against the European Parliament and the Council of the European Union concerning a Directive on deposit guarantee schemes (13 May 1997). Germany argued that the Directive did not explain how it was compatible with the principle of subsidiarity. The Court answered:

In the present case, the Parliament and the Council stated in the second recital in the preamble to the Directive that "consideration should be given to the situation which might arise if deposits in a credit institution that has branches in other Member States became unavailable" and that it was "indispensable to ensure a harmonised minimum level of deposit protection wherever deposits are located in the Community". This shows that, in the Community legislature's view, the aim of its action could, because of the dimensions of the intended action, be best achieved at Community level....

Furthermore, in the fifth recital the Parliament and the Council stated that the action taken by the Member States in response to the Commission's Recommendation has not fully achieved the desired result. The Community legislature therefore found that the objective of its action could not be achieved sufficiently by the Member States.

Consequently, it is apparent that, on any view, the Parliament and the Council did explain why they considered that their action was in conformity with the principle of subsidiarity and, accordingly, that they complied with the obligation to give reasons as required under Article 190 of the Treaty. An express reference to that principle cannot be required.

On those grounds, the plea of infringement of the obligation to state reasons is unfounded in fact and must therefore be rejected. (Case C-233/94 [18] )

See also

Related Research Articles

<span class="mw-page-title-main">Maastricht Treaty</span> 1992 founding treaty of the European Union

The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve member states of the European Communities, it announced "a new stage in the process of European integration" chiefly in provisions for a shared European citizenship, for the eventual introduction of a single currency, and for common foreign and security policies, and a number of changes to the European institutions and their decision taking procedures, not least a strengthening of the powers of the European Parliament and more majority voting on the Council of Ministers. Although these were seen by many to presage a "federal Europe", key areas remained inter-governmental with national governments collectively taking key decisions. This constitutional debate continued through the negotiation of subsequent treaties, culminating in the 2007 Treaty of Lisbon.

<span class="mw-page-title-main">Region (Europe)</span>

The European Union created a Committee of the Regions to represent Regions of Europe as the layer of EU government administration directly below the nation-state level. The committee has its headquarters in Brussels.

<span class="mw-page-title-main">European Committee of the Regions</span> Institution of the European Union

The European Committee of the Regions (CoR) is the European Union's (EU) assembly of local and regional representatives that provides sub-national authorities with a direct voice within the EU's institutional framework.

<span class="mw-page-title-main">Treaty establishing a Constitution for Europe</span> 2004 failed attempt to formally establish a constitution of the European Union

The Treaty establishing a Constitution for Europe was an unratified international treaty intended to create a consolidated constitution for the European Union (EU). It would have replaced the existing European Union treaties with a single text, given legal force to the Charter of Fundamental Rights, and expanded qualified majority voting into policy areas which had previously been decided by unanimity among member states.

<span class="mw-page-title-main">Common Fisheries Policy</span> EU fisheries policy

The Common Fisheries Policy (CFP) is the fisheries policy of the European Union (EU). It sets quotas for which member states are allowed to catch each type of fish, as well as encouraging the fishing industry by various market interventions. In 2004 it had a budget of €931 million, approximately 0.75% of the EU budget.

The principle of conferral is a fundamental principle of European Union law. According to this principle, the EU is a union of its member states, and all its competences are voluntarily conferred on it by its member states. The Union has no competences by right, and thus any areas of policy not explicitly agreed in treaties by all member states remain the domain of the member states. This indicates that the member states have the right to deal with all matters that fall outside the agreements of the Treaties and the EU can only act within the conferred competences defined by the Member States in the treaties.

A supranational union is a type of international organization and political union that is empowered to directly exercise some of the powers and functions otherwise reserved to states. A supranational organization involves a greater transfer of or limitation of state sovereignty than other kinds of international organizations.

<span class="mw-page-title-main">Politics of the European Union</span>

The political structure of the European Union (EU) is similar to a confederation, where many policy areas are federalised into common institutions capable of making law; the competences to control foreign policy, defence policy, or the majority of direct taxation policies are mostly reserved for the twenty-seven state governments. These areas are primarily under the control of the EU's member states although a certain amount of structured co-operation and coordination takes place in these areas. For the EU to take substantial actions in these areas, all Member States must give their consent. Union laws that override State laws are more numerous than in historical confederations; however, the EU is legally restricted from making law outside its remit or where it is no more appropriate to do so at a state or local level (subsidiarity) when acting outside its exclusive competences. The principle of subsidiarity does not apply to areas of exclusive competence.

The open method of coordination (OMC) is a relatively new intergovernmental means of governance in the European Union, based on the voluntary cooperation of its member states. The open method rests on soft law mechanisms such as guidelines and indicators, benchmarking and sharing of best practice. This means that there are no official sanctions for laggards. Rather, the method's effectiveness relies on a form of peer pressure and naming and shaming, as no member state wants to be seen as the worst in a given policy area.

<span class="mw-page-title-main">Europeans United for Democracy</span> Political party in the European Union

Europeans United for Democracy – Alliance for a Europe of Democracies, formerly known as EUDemocrats, was a Eurosceptic and self-described Eurorealist alliance of parties and movements from 15 European countries. It operated as a transnational party at the European level, according to Regulation (EC) No 2004/2003. It sought a radical decentralization or a complete abolition of the EU. It incorporated members from both the right and the left political spectrum; however, it was dominated by left-wing parties and represented ideologically left-wing faction of Euroscepticism. It functioned between 2005 and 2017.

Multi-level governance is a term used to describe the way power is spread vertically between levels of government and horizontally across multiple quasi-government and non-governmental organizations and actors. This situation develops because countries have multiple levels of government including local, regional, state, national or federal, and many other organisations with interests in policy decisions and outcomes. International governance operates based on multi-level governance principles. Multi-level governance can be distinguished from multi-level government which is when different levels of government share or transfer responsibility amongst each other. Whereas multi-level governance analyses the relationship of different state levels and interaction with different types of actors.'

<span class="mw-page-title-main">Luigi Taparelli</span> Italian Jesuit (1793–1862)

Luigi Taparelli was an Italian scholar of the Society of Jesus and counter-revolutionary who coined the term social justice and elaborated the principles of subsidiarity as part of his natural law theory of just social order. He was the brother of the Italian statesman Massimo d'Azeglio.

In neo-Calvinism, sphere sovereignty, also known as differentiated responsibility, is the concept that each sphere of life has its own distinct responsibilities and authority or competence, and stands equal to other spheres of life. Sphere sovereignty involves the idea of an all encompassing created order, designed and governed by God. This created order includes societal communities, their historical development, and their abiding norms. The principle of sphere sovereignty seeks to affirm and respect creational boundaries, and historical differentiation.

European Union (EU) concepts, acronyms, and jargon are a terminology set that has developed as a form of shorthand, to quickly express a (formal) EU process, an (informal) institutional working practice, or an EU body, function or decision, and which is commonly understood among EU officials or external people who regularly deal with EU institutions.

Paradiplomacy is the involvement of non-central governments in international relations. The phenomenon includes a variety of practices, from town twinning to transnational networking, decentralized cooperation, and advocacy in international summits. Following the movement of globalisation, non-central governments have been playing increasingly influential roles on the global scene, connecting across national borders and developing their own foreign policies. Regions, states, provinces and cities seek their way to promote cooperation, cultural exchanges, trade and partnership, in a large diversity of ways and objectives depending on their decentralization, cultural, and socio-economical contexts. This trend raises new questions concerning public international law and opened a debate on the global governance regime, and the evolution of the nation-led system that has provided the grounds for the international political order in the last centuries.

<span class="mw-page-title-main">National parliaments of the European Union</span> Legislatures of member states of the European Union

The national parliaments of the European Union are those legislatures responsible for each member state of the European Union (EU). They have a certain degree of institutionalised influence which was expanded under the Treaty of Lisbon to include greater ability to scrutinise proposed European Union law.

Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level.

Staatenverbund is a neologism for a system of multi-level governance in which states work more closely together than in a confederation but, unlike a federal state, retain their own sovereignty. The concept is used in Germany to describe the European Union but has no direct equivalent in other languages. In German jurisprudence, a Staatenverbund is a supranational institution that may exercise sovereign acts but may not independently fix areas where it may exercise this power.

<span class="mw-page-title-main">Subsidiarity (European Union)</span> Principle of governance of the European Union

In the European Union, the principle of subsidiarity is the principle that decisions are retained by Member States if the intervention of the European Union is not necessary. The European Union should take action collectively only when Member States' individual power is insufficient. The principle of subsidiarity applied to the European Union can be summarised as "Europe where necessary, national where possible". Subsidiarity is balanced by the primacy of European Union law.

The European Pillar of Social Rights(EPSR) is a set of documents containing 20 key principles and rights intended to build a fairer Europe in the fields of labour markets and welfare systems. Initiated by the European Commission and solemnly proclaimed by the European Parliament, the European Commission and the Council in November 2017 in Gothenburg, the EPSR is built around three main sections: equal opportunities and access to the labour market, fair working conditions, and social protection and inclusion. The EPSR is not a binding document but a tool reaffirming and completing pre-existing rights contained in the Treaties.

References

  1. ↑ "subsidiarity". Oxford English Dictionary. Archived from the original on 10 April 2019. [mass noun] (in politics) the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level
  2. ↑ Early German usage: Subsidiarität(1809 or earlier in legal use; 1931 in the context of Catholic social doctrine, in §80 of Rundschreiben über die gesellschaftliche Ordnung ("Encyclical concerning the societal order"), the German version of Pope Pius XI's encyclical Quadragesimo anno (1931))".
  3. 1 2 Behr, Thomas. Social Justice and Subsidiarity: Luigi Taparelli and the Origins of Modern Catholic Social Thought (Washington DC: Catholic University of American Press, December 2019).
  4. ↑ Behr, Thomas. Social Justice and Subsidiarity: Luigi Taparelli and the Origins of Modern Catholic Social Thought (Washington DC: Catholic University of American Press, December 2019). See in particular the Appendix, Taparelli's "Treatise on Subsidiarity" translated in this work.
  5. ↑ Endo, Ken (31 May 1994). "The Principle of Subsidiarity: From Johannes Althusius to Jacques Delors". 北大法学論集. 44 (6): 652-553. It is reasonable however to also identify Althusius as the first proponent of subsidiarity and federalism (he uses, in fact, the word "subsidia" in the text). He was a Calvinist theoretician of the laical State at the beginning of the 17th century.
  6. ↑ Frederik H. Kistenkas (1 January 2000). "European and domestic subsidiarity. An Althusian conceptionalist view". Tilburg Law Review. 8 (3): 247–254. doi:10.1163/221125900X00044. Archived from the original on 9 December 2019. Retrieved 9 December 2019.
  7. ↑ "Das Subsidiaritätsprinzip als wirtschaftliches Ordnungsprinzip", Wirtschaftliche Entwicklung und soziale Ordnung. Degenfeld-Festschrift, Vienna: von Lagler and J. Messner, 1952, pp. 81–92, cited in Helmut Zenz, DE, archived from the original on 31 October 2007, retrieved 9 November 2009.
  8. ↑ "Supremacy Clause". LII / Legal Information Institute. Archived from the original on 1 February 2018. Retrieved 10 September 2021.
  9. ↑ Schmidt, Vivien A (23 March 2007), Democratizing France: The Political and Administrative History of Decentralization, Cambridge University Press, p. 10, ISBN   978-0-52103605-4 .
  10. ↑ A History of Decentralization Archived 11 May 2013 at the Wayback Machine , Earth Institute of Columbia University, retrieved 4 February 2013
  11. ↑ Segell, Glen (2000). Is There a Third Way?. Glen Segell Publishers. p. 80. ISBN   978-1-90141418-9. When the Dutch Protestant and Catholic parties combined, to form the Christian Democrats, the two parties agreed that the principles of sphere sovereignty and subsidiarity boiled down to the same thing.
  12. ↑ Reid Buckley, An American Family – The Buckleys, Simon & Schuster, 2008, p. 177.
  13. ↑ Decentralization: A Sampling of Definitions Archived 12 May 2013 at the Wayback Machine , Joint UNDP (United Nations Development Programme)-Government of Germany evaluation of the UNDP role in decentralization and local governance, the United Nations Development Programme, October 1999, pp. 2, 16, 26.
  14. 1 2 Macrory, Richard, 2008, Regulation, Enforcement and Governance in Environmental Law, Cameron May, London, p. 657.
  15. ↑ Shelton, Dinah (2003). "The Boundaries of Human Rights Jurisdiction in Europe". Duke Journal of Comparative and International Law. 13 (1). Duke University School of Law: 95–154. Archived from the original on 20 June 2017. Retrieved 17 April 2017.
  16. ↑ Cooper, Ian (16 October 2009) Comment: Will national parliaments use their new powers? Archived 25 October 2009 at the Wayback Machine , EUObserver
  17. ↑ Protocol 2 to the European Treaties Archived 6 August 2010 at the Wayback Machine .
  18. ↑ "Judgment Of The Court in Case C-233/94". Archived from the original on 11 May 2013. Retrieved 27 December 2011.

Notes

  1. ↑ Exclusive competencies are those matters that the member states have agreed with each other by treaty are those that they should achieve jointly (typically through the European Commission). All other matters remain as "national competences" (each member decides its own policy independently). International trade agreements are an example of the former, taxation is an example of the latter.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.