The Treaty of Lisbon and the Future of European Law and Policy
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The Treaty of Lisbon and the Future of European Law and Policy

Edited by Martin Trybus and Luca Rubini

This comprehensive and insightful book discusses in detail the many innovations and shortcomings of the historic Lisbon version of the Treaty on European Union and what is now called the Treaty on the Functioning of the European Union.
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Chapter 9: The Substance of Subsidiarity: The Interpretation and Meaning of the Principle after Lisbon

Ton van den Brink


Ton van den Brink* 1. INTRODUCTION The Treaty of Lisbon has firmly strengthened the subsidiarity principle by empowering national parliaments to scrutinize legislative proposals on compliance with the principle. This has marked an important new step in its development. Up until now, this development has been characterized by a polarization between those who consider the principle necessary to protect the Member States from too much interference from the European Union (EU), and those who consider it ‘the wrong idea, in the wrong place, at the wrong time’.1 Their critique focuses on points such as the principle’s defensive nature; the absence of a clear and uncontested definition (which enables diverging interpretations),2 and the impossibility of judicial enforcement.3 A fundamental point of the critique was voiced by Davies who argued that the principle is not appropriate for providing a balance between Member States’ and EU interests as it regards the question of what level of government objectives of the EU should be achieved.4 Should Member States’ interests be considered as independent and legitimate * The author wishes to express his gratitude to the following students for their help: Willem van Ewijk, Sophie Hiensch, Maartje Möhring, and Arne Mombers. 1 To quote Davies: Davies, G. (2006), ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time’, Common Market Law Review, 43, 63. 2 De Búrca, G. (1999), ‘Reappraising Subsidiarity’s Significance after Amsterdam’, Harvard Jean Monnet Working Paper 7/99, p. 10. 3 De Búrca, supra, fn. 2...

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