Subsidiarity as a Method of Policy Centralisation

Abstract

Subsidiarity, at least as defined within the EU, provides that the centre will only act where the goals of the proposed action cannot, or cannot adequately, be met by decentralised action. It therefore assumes an agreed goal, unsurprising given its Catholic roots, and is a principle concerning who should take measures to achieve this. This exposes two limits to the value of subsidiarity in the EU or other international organisations:

1. Many conflicts between levels do not concern who is best placed to pursue an agreed goal, but are conflicts over the relationship between the goals of the lower and higher levels; which should prevail, or to what extent. To this situation, subsidiarity has no relevance.

2. As a rhetorical device subsidiarity is intellectually centralising. It places the central policy goal beyond dispute, while denying any voice to the policy goals of the states. It translates the complex relationship between levels into the single question of who can best implement the policies of the centre.

By embracing subsidiarity as a central idea in choice-of-level decisions states therefore emasculate themselves. Instead of defending their right to act as the delegates of the higher level - as subsidiarity allows them to do - they should be calling for a balancing process between the autonomous and conflicting goals of different levels, and attacking the presumption implicit in subsidiarity and Community law generally that all lower policies, however important, must always give way before all higher policies, however marginal.

The mistake of the states is to read subsidiarity as no more than a cipher for 'which level should do what'. It is suggested here that it is a more precise and technocratic concept than this. Ignoring its internal structure in favour of broad policy arguments results in miscommunication with the Commission, failed lawsuits, and an inability to deal with competence disputes in a legal way.

Keywords: Subsidiarity, European Union, European law, International Organizations, International Law, Division of Powers, Multilevel governance, Proportionality