This post looks at these two terms as they are applied in practice by the EU. In various posts we have said a lot about both ideas and we have concluded that not much ‘competence’ is left with the member states because the EU’s principle of ‘subsidiarity’ is barely honoured by them.
(In what follows most highlighting is ours.)
In its Treaty on European Union (TEU) the term ‘competence’ is not defined directly but we may get some insight into their use of the term from Articles 1 and 2, under Part One, Title I:
“By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the Member States confer competences to attain objectives they have in common.”
“1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.”
“2. … The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”
In case anyone still believes that the EU leaves much to the competence of its member states, the following should disabuse them:
“3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.”
“5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.”
Article 5 of the TEU (Preamble, Title I) has the following principles:
“1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
“2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
“3. 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 “principle of conferral” is another EU invention. It appears three times in the Treaty on European Union; twice in Article 5 under Title I (Common Provisions) as follows:
“The limits of Union competences are governed by the principle of conferral. … Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”
And once in Article 7 Under Title II (Provisions having General Application):
“The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.”
In practice consistency is found only in the degree to which the EU ignores this principle; it is just another ratchet device towards Ever Closer Union since they dictate where competences should reside.
And the “principle of proportionality” is a misuse of a term that is defined as the idea that an action should not be more severe than is necessary. The EU, of course, defines it differently: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.” And they simply ignore this principle when it suits them, which is most of the time. In practice few – and fewer – competences are left with the Member States, as the Treaties clearly mandate they should be when, as is so often the case, true competence lies below.
Here is ‘subsidiarity’ as described in the EU’s fact sheet “The Principles of Subsidiarity“: http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_1.2.2.html
“In areas in which the European Union does not have exclusive competence, the principle of subsidiarity seeks to safeguard the ability of the Member States to take decisions and action and authorises intervention by the Union when the objectives of an action cannot be sufficiently achieved by the Member States, but can be better achieved at Union level, ‘by reason of the scale and effects of the proposed action’. The purpose of including a reference to the principle in the EU Treaties is also to ensure that powers are exercised as close to the citizen as possible, in accordance with the proximity principle referred to in Article 10(3) of the TEU.”
The two ideas are closely linked, in principle if not in practice. In the rest of this post we pick out some comments that we have made and some further quotations to support our comments.
The Oxford English Dictionary offers a less clunky and ignorable definition of 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.” This is subsidiarity upwards, which makes more sense.
Subsidiarity is a founding principle of the EU, spelt out in the Maastricht Treaty, which declares that the Union will act only in areas where required action cannot be sufficiently well achieved by the member states (except for areas taken as being its own “exclusive competence”).
“…the essence of subsidiarity is that it protects the democratic self-determination of nation states (as well as lower levels of government) within the transnational framework of the EU. As such, it is a crucial component of any functioning European democracy.”
The Centre for European Reform argues that the European Commission has instituted a system of top-down control that discourages debate, innovation and reform. “This leaves the Commission sometimes behaving more like an intergovernmental institution.” Subsidiarity is not consistently applied. (from Discontented Democrats)
Subsidiarity is a sound but neglected principle in the EU Treaties, with decisions to be taken as close as possible to the people who are affected by them. This principle conflicts with the underlying ideology of the EU, which requires authority to be centralised and not subject to the whims of the people. The mandarins know best. (from Sovereignty)
(From the EU’s negotiating guidelines): “… any bilateral arrangement between one or several remaining Member States and the United Kingdom, in the areas of European Union competence, that has not been agreed by the EU-27, relating to issues included in the scope of the withdrawal agreement and/or impinging on the future relationship of the European Union with the United Kingdom, would also be in contradiction with the Treaties…” (from Parliament Pontificates)
The ‘mandate’ insists that the UK abide by the EU Treaties, but they have no intention of doing so themselves, when it suits them to behave otherwise. We wonder why this sort of divergence is not noticed by those keen to remain in the EU.
The EU is exercising its powers to force any withdrawal agreement to fit its mandate. It will, of course, do this in its own interests. (from Negotiations) [see also our later comments on the Draft EU/UK Agreement.]
We think the EU will continue to refuse to budge because it sees its responsibility as being to protect its bureaucracy and ‘competences’ rather that the needs of member states and companies, let alone citizens. (from The Famous Four)
Our interest in this discussion is to uncover the extent to which the growing aggregation to itself by the EU of “competences” has deprived the UK of the ability, and even the right, to set standards and embed these standards in legislation that the British government may see as relevant to circumstances in the UK. (from Regime Standards)
Once the EU has regulated a standard its member states are obliged to implement that standard and not introduce anything that contradicts it, even if it is a higher standard. We … doubt the capability of the EU to make regulations and set standards in the way that it should. Its inflexible ideology of ever closer union (uniformity) … disables the EU as much as it disables its member states. [For an example see Shorties-10: Distributed Culpability)]
The EU commends itself as the only way to achieve the necessary clout across Europe to impose standards but then acts – or fails to act – in ways that prevent it from using its scale to be effective. Ideology, incompetence and an obsession with self-preservation block potential achievements.
Achieving high and common standards for economic growth and the protection and security of citizens is best left to individual nations, which could collaborate under a community organisation free of both ideology and over-weight bureaucracy; preservation would be assured by effectiveness. The EU is clearly not that organisation. (from Standard Confusion)
The EU is constructed deliberately so that powers (“competences”) extracted from member states, or passed upwards by them, are irreversible (what goes up is not allowed to come down). There is no possibility of reversing course, which is why we argue that the EU will fail in the end. (from Carry on Macron)
From the Draft guidelines following the United Kingdom’s notification under Article 50 TEU European Council (Art. 50) (April 2017) “The European Council remains committed to drive forward with ambition the priorities the Union has set itself.” The priorities include getting all member states into EMU and the single currency, as well as continuing the upward suction of ‘competences’ to the Commission until the supra-national state is fully formed (“Political Union”). (from Ideology)
“Article 50 of the Treaty on European Union confers on the Union an exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal.”
Game, set and match. This may be the most important area in which the EU ignores its own rules – and demonstrates its obsession with federalism. They have ensured that few areas remain in which the EU “does not have exclusive competence”. Powers to act, once passed up from the member states, are never returned.
Vertical separation is in fact built into the EU’s treaties but is consistently ignored as it clearly conflicts with the drive towards a complete and dominant Union. (from Union, Unity and Uniformity)
“The European Public Prosecutor’s Office will act in the interest of the EU and will not seek nor take instructions from EU institutions or national authorities.”
“If the Office takes up an investigation, national authorities will not exercise their competences for the same criminal activity.” (from Can EU Trust Them?)
This is as clear as could be: when the EU decides, national authorities need not trouble their little heads. We already have a supra-national government, except they are careful to avoid pointing that out explicitly.
“All existing EU regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply, including the competence of the Court of Justice of the European Union.”
“According to the EU position, during the transition period the whole of the EU acquis will continue to apply to the UK as if it were a member state. Changes to the acquis adopted by EU institutions, bodies, offices and agencies during that period would also apply in the UK.” (emphasis in the original)
The UK will be obliged to follow the rules but will retain few, if any, rights. This can be characterised by no other term than ‘punishment’; it is also ‘taxation without representation’ since we still have to pay during the transition. A true negotiation could start here but would be moderated through discussion. We should not expect moderation.
The negotiations so far and the Draft Withdrawal Agreement make it clear, to anyone who is paying attention, that moderation is not on offer.
The UK will not be an independent nation until after the transition, and then only if the withdrawal agreement permits a degree of independence. (from Transition: Negotiating Directives (1))
“They [transitional arrangements] must also be subject to effective enforcement mechanisms.” That’s more like it! The CJEU will continue to rule:
The “Withdrawal Agreement should therefore, during the transition period, preserve the full competences of the Union institutions (in particular the full jurisdiction of the Court of Justice of the European Union)…”
“During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the fields of competence of Union law, unless authorised to do so by the Union.” (our emphasis) (from Transition: Negotiating Directives (2))