Ever closer union is the goal; the advantage for citizens is the pretext; subsidiarity one of the principles promoted to achieve the advantage. The preamble to the TEU sums up neatly what we are expected to believe. Articles on the principle of subsidiarity are diluted with weasel words, for example, “as closely as possible to the citizens of the Union”.
CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION (TEU)
RESOLVED to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity
This is the first but not the only acknowledgement of the main ambition, “ever closer union”. The determination to achieve this end may appear to be softened a little by the addition of “among the peoples of Europe”, although in its practices the EU does not adhere to this, in fact the peoples of Europe have never been asked whether they desire ever closer union; the EU dare not ask the question because they fear they would receive the ‘wrong’ answer. We have commented on “the principle of subsidiarity” in several previous posts (see, for example, More is Less: Subsidiarity-2).
Unification has continued to progress. Apparently EU citizens “want a common approach on…all transnational issues which they instinctively sense can only be tackled by working together.” The EU wants us to believe that we have such wishes and instincts, while they get on, undisturbed, with the ‘real’ job of taking unification forward. EU mandarins know best what we want, or at least what we should want.
Without unification the EU has no rationale, but unification implies uniformity, perhaps because that would make ‘Europe’ easier to govern. The EU’s attempt to unify and pacify a fractious Europe can only succeed through suffocating uniformity, and that denies its claim to respect diversity.
European citizens are not consulted on moving forward with unification; we don’t desire more union, so it’s safer not to ask our opinion. The EU needs to continue to demand unity—and to declare that it exists. EU actions, as opposed to their words, show that uniformity across the whole continent is exactly what they want; it is so much more manageable than divergence.
Article 3: 6. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.
The treaties confer almost all competences on the Commission, though a few are claimed to be shared (see Treaties-4, Article 4).
Article 4: 1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.
Except where they are subsequently absorbed by the Commission.
Article 5: 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.
We have commented on this in some detail in Treaties-4. This is the theory—or at least the propaganda; the practice is not consistent with this.
Article 5: 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.
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), 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.”
A principle more often breached than observed; except that the EU confers upon itself anything that it believes will take forward its ambition for ever closer union and, to be safe, anything that might obstruct this.
Article 5: 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.
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.
“Every central government worships uniformity: uniformity relieves it from inquiry into an infinity of details.”
“It is easier for the world to accept a simple lie than a complex truth.”
Alexis de Tocqueville
Article 12: National Parliaments contribute actively to the good functioning of the Union:
(b) by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and proportionality;
Article 13 2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.
This sounds so reasonable that it diverts attention from the practice, which is not consistent with these principles.
Article 10 of the TEU states that the EU “is founded in representative democracy and that decisions must be taken as closely as possible to citizens.” This is known as the ‘principle of subsidiarity’.
The ‘principle of subsidiarity’ is frequently mentioned but it is a pretence. It can be shown that the EU does not believe in subsidiarity in any sense that citizens and voters would recognise as returning any control to their nations. The principle conflicts with the underlying ideology of the EU, which requires authority to be centralised and not subject to the whims of the people. Obviously the Union knows best.
Article 15: 1. In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible.
Article 15: 3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.
The “principle of proportionality” (Article 12 above) 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 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.” It may be agreed that openness is a condition for good governance but the addition of “as openly as possible” dilutes the outcome to that which the EU determines to be possible; there is no external moderation, as there would be in any proper democracy. Citizens shall know their place.
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 than the dishonest and self-serving EU version.
3. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.
3. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents…
The “right of access to documents” is severely limited in EU practice as we have noted (see, for example, Freedom from Information). Even the EU Ombudsman—who has few powers—has called EU action to deny access to documents “maladministration”.
CONSOLIDATED VERSION OF
THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU)
Article 69: National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
Much legislation, both old and new, could be delegated to or left with the member states, but very little is because the Commission and other EU institutions believe the member states are not capable of managing themselves but have to be governed from above, through ‘ever-closer-union’.
The principle of subsidiarity is largely ignored, since the goal of Ever Closer Union is to be achieved by sucking upwards ever more powers. This goal, the main ideology of the EU, requires authority to be centralised; it is steady and subtle in its implementation and takes precedence over other declared principles, which are used to disguise this ideological foundation.
PROTOCOL (No 2) ON THE APPLICATION OF THE
PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY
THE HIGH CONTRACTING PARTIES,
WISHING to ensure that decisions are taken as closely as possible to the citizens of the Union,
RESOLVED to establish the conditions for the application of the principles of subsidiarity and proportionality, as laid down in Article 5 of the Treaty on European Union, and to establish a system for monitoring the application of those principles
After studying the application of these principles we have come to the conclusion that the Preamble puff to this Protocol would be more honest if it started with WISHING to ensure that citizens and others believe “that decisions are taken as closely as possible to the citizens of the Union”.
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1: Each institution shall ensure constant respect for the principles of subsidiarity and proportionality, as laid down in Article 5 of the Treaty on European Union.
Article 2: Before proposing legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.
Article 5: Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality.
This, and much of what follows it, can be treated as marketing puff which, like marketing elsewhere, is designed to persuade rather than to give a legal obligation committing the EU. The Commission will decide which are “cases of exceptional urgency” and deal accordingly with its sole right to propose legislation.
“It is indeed difficult to imagine how men who have entirely renounced the habit of managing their own affairs could be successful in choosing those who ought to lead them. It is impossible to believe that a liberal, energetic, and wise government can ever emerge from the ballots of a nation of servants.”
Alexis de Tocqueville
Article 7: 1. The European Parliament, the Council and the Commission, and, where appropriate, the group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, shall take account of the reasoned opinions issued by national Parliaments or by a chamber of a national Parliament.
Article 7: 2. …After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.
The familiar expression “take account of” has little practical meaning and such as it has will be adjudicated by the CJEU as the EU’s final legal authority. Similarly with “reasoned opinions” (see More is Less: Subsidiarity-1, where the Commissions’ Task Force on the subject concluded that all was well and that nothing in the acquis need or should be returned to the member states).
The Member States have expressly limited the areas in which the Union can act by conferring specific competences on the Union in the Treaties. Competences not conferred on the Union remain with the Member States. This represents a clear demarcation of the responsibilities of the Union and the Member States, except for the less clear “shared competences”.
The report of the Commission’s Task Force on the subject concluded that, “There is EU value added in all existing areas of activity and the Task Force did not, therefore, identify any Treaty competences or policy areas that should be re-delegated definitively, in whole or in part, to the Member States.”
Article 8: The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act…
We know of no case where the CJEU has taken action or produced a judgement in favour of returning a ‘competence’ to the member states and against the interests of the EU and its institutions; but then the purpose of the CJEU is to prevent such things from happening.
Representative democracy is a sound ideal, though not one respected or implemented by the EU, which is designed to keep its citizens’ representatives (members of the European Parliament) in their place, which is not to interfere in the governance of the project.