The Role of National Parliaments
Chapter 5: Subsidiarity as a regulatory principle in EU law
In the context of EU integration the principle of subsidiarity has, since its inception, been caught in a dilemma. On the one hand it has been held up as a crucial regulatory principle of multi-level governance which is used to determine the appropriate level at which legislative action should be taken.1 On the other hand, the evidence indicates that the application of the principle at EU level has been generally inconsistent and political institutions within the EU which pursue deeper integration have usually been able to ensure that regulatory action is taken at the EU level.2 This problem has proved difficult to resolve because of its relevance to the exercise of the competences allocated to the EU, and specifically when the EU shares competence with the Member States. In such circum- stances, the Commission has, in the overwhelming majority of circum- stances, been able to demonstrate an Internal Market imperative which justifies EU action. Part of the difficulty with subsidiarity operating as a regulatory principle is that it does not have a normative definition and, depending upon the context, the principle of subsidiarity may be seen as a purely political maxim or as a binding rule of law.3 Either way, subsidiarity as expressed in Article 5 TEU is a vague formulation which is open to various interpretations across the Member States. For example, the application of the subsidiarity principle in Germany has caused internal constitutional difficulties which have not been witnessed in other Member States, where by contrast the discussion has tended to focus on the more direct questions of whether the EU should act.
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