‘Subsidiarity And Proportionality As They Apply To EU Action Are Failed Doctrines. Neither Does Anything To Prevent The Pernicious, Creeping Competence Of The EU.’ To What Extent Does This Statement Represent An Accurate Portrayal Of The Limits On EU Law Making?

Subsidiarity And Proportionality As They Apply To EU Action Are Failed Doctrines

EU Actions

The aim of EU is to promote peace and values that ensure well-being of is responsible of maximizing freedom of its citizens, justice that is void of internal frontiers and security. It ensures free movement of its people maintain respect of external borders, immigration, asylum and preventing as well as combating crime (Treaty on European union,2016).The EU is responsible of establishing internal market to sustain development in Europe. It must maintain a balance in economic growth and ensure stability of prices. The union should establish competition of social market economy to achieve full employment and progress socially. It must protect its people and improve their environment quality. It is its responsibility to promote technology and science. The union promotes territorial cohesion, socially and economically to ensure solidarity of member states (Treaty of Lisbon, 2007). It has a responsibility to protect its diversity in language and culture and safeguard cultural heritage in Europe. It must combat discrimination, social exclusion and promote equality of women and men. It stresses on solidarity. It must pursue set objectives appropriately in line with competencies conferred to it by the treaty.

Proportionality Principle

Proportionality principle in the European Union regulates its powers. It aims at limiting actions defined by EU institutions. The proportionality principle limits EU actions towards achieving treaty objectives. In addition, the form and content of actions must align with the pursued aim (Treaty on the European Union, 2007).

The article 5 of the European Union treaty lays down proportionality principle and sets criteria to apply it in protocol 2. Proportionality and subsidiary principle outlines all things done by EU and quotes areas that it does not have exclusive competence right. The principles thus limits involvement of EU in state matters not concerned to it. The Union acts within competency limits conferred to it by member states in treaty to achieve set objectives. Competencies not outlined by the union of treaties remain with member states. The proportionality principle of EU states that if EU is required to achieve certain treaty objectives, the European institutions to determine the need for legislative action must first examine them (European law monitor, 2016).

The European institutions determine other means needed to attain sufficiency such as encouragement, cooperation of member states through recommendation, financial support, and inducements to assume action through having a resolution. The union has various steps to follow to comply with proportionality principle. It should be very simple and display consistency to achieve objectives satisfactorily. It must legislate to the required lengths adhering to directions instead of regulations. It must create frameworks of directions instead of having details in their measures. It must provide many details to nation decisions (HM Government, 2014). It must respect national arrangements and honor the working of legal systems of member states. EU must ensure that it avoids imposing on regional, local authorities and nations.

Subsidiarity principle

The principle of subsidiarity states that the union acts on conditions that set objectives of proposed action are not achievable sufficiently, by member states at local, regional, and national level, and achieved best at union level. The principle explains that EU must exercise cooperation in multi-level governance in various levels of power. Actions done by the union must not exceed what the set objectives by the treaty can achieve. Article 352 of the treaty comments on the functioning of the EU enabling the council to act unanimously on proposals from commission after it has attained the European parliament consent. The EU enables the council to adopt necessary measures required to achieve common objectives without power. It must exclude objectives from security policy and foreign policy (HM Government, 2014).

The limits on EU law making

The limits on EU law making on article five of European law, indicate that competencies of EU are governed by conferral principle governs EU competencies, proportionality and subsidiarity principle governs union competencies. The conferral principal states limitations of union actions originate from competencies assigned to it by its member states. The treaties indicate member states that achieve set objectives (Treaty of Lisbon, 2008). The competencies not conferred in the Union and treaties stay with member states. The subsidiarty principle limits the EU actions to act only when member states cannot achieve set objectives efficiently and best achieved at the Union level. The proportionality principle limits the EU to function only when it is necessary to achieve treaty objectives. The union institutions shall use proportionality principle as outlined in the protocol when applying proportionality and subsidiary principle.

Competencies of the union

Competencies of the union in article three and four of European Union indicate that the EU is supposed to be exclusively competent in custom union, establishment of competition rules to ensure functioning of internal markets (Keystone, 2011). It shall be competent in monetary policy and when concluding internal agreement. Such cases include when conclusion is availed in legislative union acts necessary to enable exercising of the union. Article 4 continues with shared competency in member states in internal markets, social policy, social, economic, and territorial cohesion, fisheries and agriculture as well as conservation of marine resources (The treaty on the functioning of the European Union, 2008). It shall be competent in the environment, energy, transport, and trans-European networks.

Application of the subsidiarity principle

Subsidiarity principle applies to EU institutions and is important when carrying out legislative procedures. The principal monitors compliance and strengthens roles assigned to committees in the region (Fact Sheets on the European Union, 2016). The principle is useful while issuing early warnings. According to ex-ante early warnings, the national parliament and its chambers have eight weeks from forwarding of draft legislative acts to sending it to presidents in European parliaments. However, the council and the commission may give opinions for reporting that the draft does not comply with subsidiary principle. If one-third votes represent reasoned opinions, the draft is up for review. The institution producing the draft have the option of deciding whether to withdraw it, amend, or maintain it (European Union law, 2015).

Draft acts associated with freedom, justice and security have lower threshold, if it coincides with original content of ordinary legislative procedures, voters form the majority, challenge the compliance of the proposal when taking a legislative act. In cases when legislator detects incompatibility of the proposal to the subsidiary principle, he has a right to reject it subject to the majority (55%) of council members contributing majority of the votes in European parliament (orange card). The first yellow card to commission proposal dealt with exercise of taking collective action within freedom context and its establishment to service providers. Among 40 national parliament members, 12 rendered the content of the proposal not consistent with the subsidiarity principle. As a result, the commission withdrew the proposal.

Application of proportionality principle

The proportionality principle exercised in the international handelsgesellschaft case occurred in 1970. It was in the context of common agricultural policy (CAP) the fundamental rights in EU principles. The Cassis de Dijon Case (1979) the court commented that contents in alcohol and spirits were disproportionate and imposed by German law. The EU law demanded informing consumers through labels the proportionality principle dealt with invocation of state member of exception to EU law. The Cassis de Dijon case links to mutual recognition principle introduction, which inspired the drive in internal market. It relates to overriding reasons of public interest (Zorgautoriteit, 2013).


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