Yearbook of European Law - Vol. 14

By Francis Geoffrey Jacobs | Go to book overview
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A New Dimension of Subsidiarity: Subsidiarity as a Rule and a Principle

THEODOR SCHILLING


I. Introduction

The 1991 Maastricht Conference on the Political Union was saved, it is sometimes claimed, by one word: subsidiarity.1 Indeed, this word, or the concept expressed by it, introduced into the then EEC Treaty for the first time by the Single European Act (SEA), in the context of the environmental policy (Article 130r(4) EEC), 2 has been used widely throughout the Treaty on European Union. It is part of the European Treaties now in at least four places: the second penultimate recital in the preamble of the Treaty on European Union (expressly), Article A(2) TEU (impliedly), Article B(2) TEU (expressly) and, last but not least, Article 3b(2) EC.3 It is now the second most-often-mentioned principle in the European Treaties; only the prohibition of discrimination is mentioned in more places. Its specific importance is underscored by the decisive role it played in the success of the Maastricht Conference and in the ultimately-succesful efforts to dispel widespread popular concern about the Treaty on European Union.4

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1
Cf. e.g., D. Z. Cass, "The Word That Saved Maastricht? The Principle of Subsidiarity and the Division of Powers within the European Community", 29 CML Rev 1107 ( 1992).
2
Omitted from Art 130r EC as redrafted by the Treaty on European Union.
3
Special applications of the subsidiarity principle can be seen in the provisions of Arts K3(2)(b) of the Treaty on European Union, 118a, 126-129a, 130 and 130g EC and Art 2 of the Agreement on social policy; cf. S. Langer, "Subsidiarität und Anerkennungsprinzip", 8 Zeitschrift für Gesetzgebung 193, at 194 ( 1993). The Conclusions of the Presidency on Subsidiarity, adopted at the Edinburgh European Council of 11-12 Doc 1992, Annex I to Part A, EC Bull (12- 1992) 9, 13 (I.15, n 3) quote Arts 118a, 126-129b, and 130g EC and Art 2 of the Agreement on social policy as 'reflecting the idea of subsidiarity'. K. Lenaerts and P. van Ypersele, "Le principe de subsidiarité et son contexte: étude de l'article 3 B du Traité CE", 30 CDE 3, at 10 ( 1994), consider Art F(1) of the Treaty on European Union an expression of the subsidiarity principle.
4
Cf. the Conclusions of the Presidency (supra n 3) at 14 (I.4, 3rd indent) and Stefan Ulrich Pieper, Subsidiaritdt. Ein Beitrag zur Begrenzung der Gemeinschaftskompetenzen ( Carl Heymanns Verlag Köln et al 1994) 300; G. A. Bermann, "Taking Subsidiarity Seriously: Federalism in the European Community and the United States", 94 Columbia Law Review 331, at 368 et seq. ( 1994).
© Theodor Schilling, 1994. Court of Justice of the European Communities. Privatdozent, Humboldt-Universität at Berlin; Adjunct Associate Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University. This article was written during my time as EU Fellow at the Fletcher School in 1994-5. I am particularly grateful to the Court of Justice of the European Communities for having me offered this marvellous opportunity. I am indebted to helpful comments from Ingrid Persaud, Joel Trachtmann, and the Seminar-Workshop on Advanced Issues in Law and Policy of European Integration at Harvard University, in particular Joseph Weiler. Helen Keller gave me important advice on Swiss law. All errors of fact and weaknesses of opinion are my own.

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Yearbook of European Law - Vol. 14
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