The document discusses the principle of subsidiarity in European Union law. It provides background on subsidiarity and analyzes a key court case (Case 84/94) that helped establish the principle. It then summarizes a recent proposed protocol to enhance the role of national parliaments in monitoring compliance with subsidiarity. The document concludes by noting ongoing debates around subsidiarity and whether increasing national parliamentary powers achieves meaningful reform or is mainly symbolic.

1. The principle of
subsidiarity
European Union Law
ANDI BELEGU

2. Introduction
The functioning of the European Union is very complex and complicated. The branch of law
which regulates the function of European Union is called Law of the European Union and as
main sources have the treaties, directives, regulations and other similar documents issued by the
institutions of the EU.
In spite of the fact that the European Union does not have a formally systematized constitution,
comparative for instance to the Republic of Kosovo, it has a set of principles which
fundamentally constitute the techniques for making law. The essential sources are the Treaties
establishing the European Union, which stipulate the working of the European Union, and show
its abilities and focus the relations between the EU and its member states. These additionally
contain the standards for producing new laws, especially Orders and Regulations, through the
European Commission, the Council of Ministers and the European Parliament. The European
Commission is responsible for a progression of offices, and eventually manages the EU's
different agencies. At last the European Parliament, made out of the Leaders or official
Presidents of the member states, as it chooses the Chiefs and the leaders of the European
National Bank. The European Court of Justice is the preeminent legal body which deciphers EU
law, and has added to the movement the EU through its solved cases. It has the capacity survey
the legitimateness of the European Union's activities, in consistence with the Treaties, and the
activities of member states in their agreeability with EU law.
On its work the EU has certain principles which it follows to keep the stance of a very strong

3. unique body. One of the most important principles of it is the principle of subsidiarity for which
this essay will tend to give more information. As per this principle, the EU might just act (i.e.
make laws) where activity of individual member nations is deficient. The rule was made in the
1992 through the Treaty of Maastricht. Then this was promulgated by the European Charter of
Local Self-Government.
“This paragraph articulates the general principle that the exercise of public responsibilities
should be decentralized. This principle has been stated on a number of occasions within the
context of the Council of Europe and in particular in the Conclusions of the Lisbon Conference
of European Ministers responsible for Local Government in 1977. This implies that, unless the
size or nature of a task is such that it requires to be treated within a larger territorial area or
there are overriding considerations of efficiency or economy, it should generally be entrusted to
the most local level of government. This clause does not imply, however, a requirement
systematically to decentralize functions to such local authorities which, because of their nature
and size, can only accomplish limited tasks.” 1
One of the main sources of EU law is exactly the case law and that’s why this essay will
concentrate on the changes different cases brought to the principle of subsidiarity. Furthermore
the essay will put a stress in the proposed protocol for subsidiarity and will not be concerned
with the role of national parliament towards subsidiarity.
Case – 84/94
This case was brought in front of the European Court of Justice in November 1996. The dispute
was between European Council and the United Kingdom. A European Council directive, adopted
1 Article4, paragraph 3,of the European Charter of Local Self-Government

4. as a measure aimed at contributing to the protection of the "health and safety of workers" under
article 118a (2) of the EC Treaty, could validly provide that the average working week be
restricted to a maximum of 48 hours. But a provision for Sundays to be treated as part of the
minimum weekly rest period was annulled as lacking a proper legal basis under the Treaty. This
was strongly not supported by the United Kingdom which brought the case in front of the court.
Anyways the request of British Government to cancel this directive was annulled by the judges
of the European Court. This was because the United Kingdom was urging lower rights of
workers and the ECJ defended the idea that the principal aim of a measure was the protection of
the health and safety of workers, that article must be the legal base, albeit such a measure might
have ancillary effects on the establishment and functioning of the internal market. Contrary to
the UK's contention, this could not be given a restrictive interpretation.
Subject to that finding, the court considered that the directive's principal objective was the
protection of the health and safety of workers by the imposition of minimum requirements for
gradual implementation. It therefore held that the directive, apart from the second sentence of
article 5, was properly adopted on the basis of article 118a.
As to the argument that the principle of proportionality was infringed, the court found that in the
sphere of the protection of the health and safety of workers, the minimum requirements laid
down by the Council might go beyond the lowest level of protection established by the various
member states. Moreover the Council had a wide discretion in an area which, as here, involved
social policy choices and required it to conduct complex assessments.

5. Within the confines of its limited power of judicial review, the court held that the Council did not
commit any manifest error, was not guilty of a misuse of powers and did not manifestly exceed
the bounds of its discretion.
This was one of the cases which established this principle within the EU because it is very
important that the workers right be regulated in national level; furthermore it was more important
to have a regulative which arranges the minimum and free hands of countries to protect more the
rights of the workers.
Recent proposedprotocol over subsidiarity
Havingregard to the existingsituationof unsatisfactorypolitical monitoring,anddifficultjudicial
scrutiny,the WorkingGroupproposeda new systemwherebynational Parliamentswouldacquire a
formal role inmonitoringcompliance withthe principleof subsidiarity.Thus,the powersof scrutinyof
national Parliamentswouldbe significantlyenhancedboththrougharedefinitionof the Commission’s
obligationsandthroughthe establishmentof aformal monitoringprocedure.
The proposedmodel inthiswayplainlytriestostrike aharmonybetweenthe political expectationto
guarantee a more powerful investigationof the wayUnion “fitness”ispracticedandthe pragmatic
“won't” to furthertrouble anddeferral officiallyperplexinglaw makingprocedure.Nonetheless,the
protocol raisesa numberof inquiriesof diverse nature (political,functional additionallylegitimate).
Judicial Review
The idea of a preliminary scrutiny by the European Court over compliance with the principle of
subsidiarity has been rejected, probably because of concerns over excessively delaying the
lawmaking procedure; and because of the fact that political scrutiny is to be preferred to judicial
scrutiny. This said, the Protocol also refers to possibility of judicial review. In this respect it had
been originally proposed to accord locus standi to national Parliaments in front of the ECJ: after
all if Community competence has been wrongly exercised it affects their prerogatives. The

6. proposed Protocol, however, simply states that “Member States, where appropriate at the request
of the national Parliaments,” might bring proceedings. This is, however, already the case since
under Article 230 Member States are privileged applicants, and whether the Government must
act should the national Parliament so requests, is, and remains, a matter for national law.
The motivation behind why locus standi has not been specifically vested upon national
Parliaments is out of the dread that to do so would undermine the solidarity of national
frameworks. Then again, it is vague why the apprehension of undermining the solidarity of the
framework comes into thought just in connection to locus standi, and not in connection to the
likelihood to lodge contemplated conclusions. Truth be told, the arrangement of contemplated
“feelings” appear intended to defeat a disappointment of responsibility of priests in Board. Here
fore if practicality has won in the first part of the protocol, by recognizing that Parliaments and
Governments may have varying perspectives which may not be adequately voiced in the present
framework (it is impossible that a Legislature would detached the certainty of its Parliament
more than a subsidiarity issue), then why is that not the situation in connection to audit of
enactment? The unwillingness to give any substantial forces to national Parliaments hence
demonstrates the primary weakness of the Convention, which appears intended to just give a
nonessential part to national Parliaments.
Further, the proposed protocol gives that the Council of the Locales procure remaining to bring
Article 230 to transactions, though just concerning follows up on which it was counseled. Under
the present game plans Commission and Parliament have an obligation to counsel the Committee
of the Regions in the accompanying areas: economic and social cohesion, trans-European

7. infrastructure networks, health, education and culture, employment policy, social policy, the
environment, vocational training and transport.
Conclusions
It's a well-knownfactthatoccasionallyEuropeanlaw hasbeenutilizedtosidesteppolitical impassesat
national level,andit’sawell-knownfactthatoccasionallyEuropeanlaw ispointless,if notsenseless.
Thissaid,it isto be ponderedwhetherthe proposedconventionwouldhave anyimpacthoweverto
furtherpostpone the law-productionstrategy.Itisnotevidentthatsucha frameworkwouldeventually
bringbetterlawmaking:foundationstendtoappreciate expressingtheirforcesagainstotherpolitical
establishments.
The civil argumentoversubsidiarityisatlasta political one whichdeceivesnotjustadoubtoverthe way
Group enactmentisinstituted,additionallyadoubtoverthe conventional workingof national
governments.Itisfascinatingthat,asitfrequentlyhappensinthe Europeanpolitical methodologythe
level headeddiscussion focusesonthe previousinsteadof onthe recent.The waythat absence of
pastoral responsibilityinconnectiontoEuropeanmattersisbettermanagedatEuropeanlevel instead
of at national levelisunexpected:itappearstoclashwiththe veryrule of subsidiaritythatthe
Conventionisgoingforreaffirming.
Further,entrustingnationalParliamentswithaformal part at Europeanlevel maystrengthenthe
nationals'discernmentthattheiradvantage isspokentobytheirnational,insteadof bythe European
Parliament.
The presentationof ageneral rule of subsidiarityin1992 and 1997 hasneglectedtocreate unmistakable
results:where there isapolitical will toact there isa way.It staysto be seenwhetherthe new

8. technique will convey.The suspicion remainsnotwithstanding,thatthismaywindupbeingonlya
"tabloid"cordial methodforapproachingagenuine issue(seee.gthe utilizationof hyperbolicdialectfor
example,the foundationsoughttotake the "fullest"account,the insignificantprocurementonlegal
audit,andat lastthe way that National Parliamentshave beengivenyeta"corrective"power),as
opposedtoa successful andthoroughlyconsideredapproachtohandle complex issues,forexample,the
straightforwardnesswhat'smore authenticityof the Europeanlaw-productionprocess.