No Place for Subsidiarity in the European Union. An Integrated Approach to Subsidiarity and Legal Order

The question whether the principle of subsidiarity can apply in a given legal or political order is not systematically addressed in subsidiarity research.1 An explanation is that the conditions under which subsidiarity can apply appear to be straightforward and undemanding. They are already met, it may seem, wherever there is a government hierarchy. Two levels suffice. Authority should then be allocated to, or exercised at, the lower level, according to the principle of subsidiarity. The premise of this article2 is that the applicability conditions of subsidiarity are not as straightforward and undemanding as may seem. One claim in this article is that the conditions vary with the specific conception of subsidiarity that is adopted. Not all conceptions presuppose a government hierarchy. Some conceptions presuppose an assistance relation between smaller and larger units of authority (Cahill 2017). Another claim is that the applicability conditions of these conceptions are not always met. And this is not necessarily a flaw of the legal order in question. In some legal orders, the principle of subsidiarity is simply out of place, inconsistent with the structure that these orders ought to have in light of principles of democracy and rule of law. It is therefore crucial, I propose, to study the conditions under which a conception of subsidiarity can apply and to examine whether those conditions are met, or could be met, by the legal order in which the principle is supposed to apply. Ideally, the literature should relate subsidiarity conceptions to types of legal orders. The conditions of applicability connect the two. Within the confines of this article, I cannot present a comprehensive theory of subsidiarity and the conditions of this principle's application, in which a typology of conceptions is related to a typology of legal orders. What I can do here, however, is illustrate a more integrated approach to subsidiarity in which conceptions and their conditions of application are confronted with kinds of legal order. The question that I shall address in this article is whether subsidiarity can apply in the case of the European Union. The answer to that question is surely important in itself (Section 3.2) but the aim here is also to develop, in the course of the case study, an integrated approach to subsidiarity and legal order. This approach can then be used and further developed in other cases. I shall argue that the applicability conditions of the hierarchical and the assistance conception of subsidiarity are not met in the case of the European Union (hereafter also: EU). I explain as well why the principle that is referred to as subsidiarity within EU law is not a principle of subsidiarity. It has the name but not the defining feature of the principle. I also ask whether the EU legal order should be transformed to make room for subsidiarity. I argue for a negative answer. In the final section, I collect the main ingredients of the integrated approach. The article is constructed as follows. In Section 2 I discuss two conceptions of subsidiarity and I infer conditions of application from them. I indicate that the literature so far lacks an integrated approach to subsidiarity. In Section 3 I introduce the case of the European Union. In Section 4 I argue that the applicability conditions of the two conceptions (outcome of Section 2) are not met in the case of the European Union (outcome of Section 3); I also argue that the EU legal order should not be rearranged to make room for subsidiarity. In Section 5 I argue that the principle that is codified in EU law is not a principle of subsidiarity. In Section 6 I return to the in the literature and The of subsidiarity has a 2017). are to political and to other What I to out in this is whether it is to claim that there is of subsidiarity can then be further in I also introduce two conceptions of subsidiarity that can be in the hierarchical and the assistance infer applicability conditions from I argue in this Section that the subsidiarity literature so far lacks of The subsidiarity literature to an answer to the question whether it is to claim that there is a of a defining feature by the of subsidiarity. In for in the of the of and it is that and political of the principle of subsidiarity but it is that which is of or of the of subsidiarity by EU with In subsidiarity. an by of subsidiarity in the European but these are as from the that subsidiarity is with the of authority between and according to with a for the lower (Cahill and In a and this there is that to in relation to it is that it in a for (Cahill these by and I here as that and political presuppose the of which a or a in the of authority to, the of authority at, units of government that are to the this is in of and lower levels of then have I a hierarchical conception of subsidiarity. to subsidiarity to by and the of lower The hierarchical of application to be This conception has applicability the conception can apply wherever there is a government hierarchy. subsidiarity to then surely a to be present for subsidiarity to be The hierarchical conception is by and political (Cahill 2017). the of and lower and levels is not by all subsidiarity In an to the has that subsidiarity that the and levels is This is also in according to The assistance or In subsidiarity therefore an assistance relation between a smaller of authority and a larger of the or assistance to the not that the has more authority or is a in a government hierarchy. the the is that the smaller is authority the has or is that authority is in the units of their and and units can in relation to units not of a claim to authority but of a to the (Cahill This to the or of units of authority has to to approach as further this assistance conception of subsidiarity in It is to the of authority to ask for The assistance the for The assistance given by the has to be for the of the The has to whether the assistance has for by the assistance by the the of the smaller They indicate as well that the conception within the of subsidiarity. What the assistance conception from the hierarchical conception is that the the not presuppose that the smaller and larger units levels of hierarchical government It a of assistance between and units of authority with this assistance conception two I which have to be met for the conception to be The is that the smaller units of authority have a or that that authority is allocated to them. The is that the larger of authority has the to the smaller of however, is principles that the political as a with larger and smaller but not and a important larger and smaller do not of of some a larger is the important and for a smaller that subsidiarity is in also other of is to apply in law or of subsidiarity are not or so the government that is with the case of a or In this it is to that some subsidiarity the as the of subsidiarity. the principle's are for within and this why the are for is not it of the hierarchical which is in the it is also to a in that are as the and according to as the are not of are also case of subsidiarity. What this is that the literature not systematically relate conceptions of subsidiarity to legal orders, a more integrated approach light the in the literature conception of subsidiarity can apply in which of legal order. in this article is to an approach that their applicability and the of legal orders. The of this is that there is a of subsidiarity which can be further in two conceptions of a hierarchical conception and an assistance these conceptions conditions of Another is that the subsidiarity literature not conditions of it not systematically relate conceptions of subsidiarity to types of legal order. whether the two conceptions can apply in the case of the European an of the main of the EU legal order is I do that in Section In Section I that there are two for the principle of subsidiarity in the case of the within that order and between this order and the legal order of of I explain why I the case of the EU is an of the main of this article (Section I have the case of the European Union for The is It is in the literature that the of subsidiarity in European law a of subsidiarity. for that has as a in legal and political not to in the European EU subsidiarity is also for the of subsidiarity. conception of subsidiarity in EU the EU to a in subsidiarity literature also as in Section that the case to which subsidiarity is the and and not some of or of which the EU is an The is that there to be with the EU principle of subsidiarity. It to be It has a in EU in 5 of the European but it is and it the is to be The explanation that is given is that the of the European of are to apply the for political is to more or in the of and (Cahill political are conceptions of their conditions of application, and the structure of the legal order are This to the final The with the of in this it is far from whether there is a for subsidiarity in the EU legal The EU case in of applicability The EU is as a of government which that the hierarchical conception of subsidiarity can apply. the is used and not the EU legal order as I shall explain in Section further is that the relation between the EU and is as as also by the This can be I (Section the between two for subsidiarity is (Section orders are by their is then or to this legal the law of European is it is orders can also be by the of under as This a in a legal by and law between under a law between and law between a and a not under that a In this the law of European is as it the between an EU and a from EU under a of law and in this EU law is and I propose, that EU law can be by some of as of and as of I this here with to the of EU law (Section the structure of the EU (Section and the relation between EU law and law (Section EU law the of the law of European and and case this of law can be by EU law the of European the of EU to the other EU to study, or and their to and EU to theory of these are of and to the the between an EU and a of EU The structure of the EU the of law. of law the and between and the two of EU and of the European Union law should be given by of And it The EU has two of the are in the of the European Union. of all are in the European The EU itself as a democracy and not the and their can be to the that apply to the relation between to their in these two the that EU the in all EU that to have an these have to apply in the to all and to all What EU law has in with of law is that the have not by to EU The of European law is a for the the EU do not the of some authority from the EU to the The are as of EU law to EU law. They simply the authority that already have according to their of law. and this is to the of EU law and the of the the cannot that authority in the The the of European that the of EU law do not vary from to of EU law is This is why that have to to be used to out European the authority that have by of their law not within the EU legal order to a other that of The of law are not to make Within EU law are of integrated of The of is also in the authority given to the European to examine whether EU law is which the the The can a the European of it to with as a in this the of the European Union I that for the confines of the EU legal order and out to the relation between the EU and the of the which with to that under are these two of these two related to of law are not to in a hierarchical relation to of law. And this is also the case with EU it is not as or lower law. European law is not to be the law of the in the integrated of to this there is a in the relation between law and in the case of the the relation between European law and according to of the that in case of law and it be for the to of law in with law. or of is given to the European of EU legal not the relation between EU law and law in of Some argue that that can which in that the are of here are two What then in in which a rule of EU law and a rule of law to The rule is then not as the European rule is given or of and The The the relation between European and law. it also the of European with main aim to a of law for the European Union of and it a of law whether law is and has within the of the EU and the that cannot be by of law. EU of application is the of the specific of European An simply cannot be of European law have The which a of that is and in a within the is simply could by This of the EU legal order to between two for subsidiarity in the EU In the EU subsidiarity the is not but I it should be to The is that the relation between EU and EU is in the two The is within the EU legal order. The principle of subsidiarity as an principle in this order there is for Within this the relation between EU and EU is that between and as in Section this of subsidiarity is referred to as the The is between the EU legal order and the legal order. The principle of subsidiarity as an principle in this it out to be Within this have two legal orders, with a that is with to the relation between the EU and the is that between and (Section this of subsidiarity is referred to as the EU and political the applicability of the hierarchical conception of subsidiarity in the case of the EU may to be a it is not all to and the EU as a of government The of levels that EU the of a with the further these or In the case of the the applicability of the hierarchical conception met. the is used and do not between the two of subsidiarity in Section in for the article of in The the that the EU is a of government and then the principle of subsidiarity this also the hierarchical and EU law and law as and are not the of subsidiarity. in a article the EU law relation as The can be I propose, the between the two of subsidiarity is of the relation between European and law is in with the in Section it is to the The of the EU however, an of the I have to in Section the EU legal order not have levels of The are within that order. They are not EU and also lower EU This that the hierarchical applicability is not met in the the hierarchical conception cannot as an principle within this is of government and it is to apply the hierarchical conception of subsidiarity. Within the authority can be exercised by the EU The hierarchical applicability is also not met in the of the the is that there are two of law that are related to as in Section the hierarchical conception cannot as an principle there are levels of authority in the there is hierarchical relation between in the in Section the assistance conception as by has two conditions of The smaller units of authority have to have a and that that authority is allocated exercised by the larger of authority has to have the to the smaller of to the the that the are the units and that EU the that a as the of authority of and (Cahill to it can the whether a as a or of In the of the that the is the and the EU the In light of Section however, this is in the The is that within that the EU are not units of authority all but Within the EU have a claim to The EU in which of the and their are have for the of EU law to the of that that the and their In of the EU as the of authority of with to to all and all An has claim to in that and the of and their in the two of the a claim to to to the of application, the supposed assistance relation between smaller and larger units is in the The is that the EU have to the assistance by the to EU law. One could whether this of assistance can be as The that the are not units of authority here but could be with that units not have a claim to but are to assistance have the to It has to be however, that the are not in the to it is their under EU law to EU law. The European the and is to the to EU law. this feature the between and units as by The is that the assistance conception cannot apply in the Not the smaller units but the EU has to be as the given and The EU the smaller units to EU law. They as subsidiarity They have the to do the EU do not have this the as it is the of The of the assistance conception of subsidiarity in the has for the applicability of the conception in the that the EU are the units in the it is to the as the units in the within the EU legal order the EU are the units and in the legal order the of units is by then is in the is the of of European then have to be by European should be allocated according to of law. In of within this do not have as units and EU as for or The is that the assistance conception is not in this as an that the applicability conditions of the hierarchical and the assistance conception are not met, the question whether the EU legal order should be so that it the conditions and subsidiarity can apply. In Section I that the EU itself as a of and these two of to the that apply to their the in which are make the hierarchical conception in the the of the have to be from of EU law to that of lower EU I argue that a is The main of European has to the relation between and under law (Section the of EU the of democracy that the EU are as with in which those to EU law this law to (Section And according to the rule of the of these should be by a which is in the EU case the European (Section lower EU the of the which is to the of of law with the of democracy and the rule of law. to the to the units of to make assistance conception in the it to return to the already used in the (Section should not be units can have claim to law that and the of and can have a to make room for subsidiarity within the EU legal order are in light of the then the is also that should in the relation between the of that order and the of the legal orders of room should be for subsidiarity between the EU legal order and the legal orders as The of this is that the applicability conditions of the hierarchical and the assistance conception are not met in the case of the EU legal order. conceptions cannot apply as principles within the and cannot be used as principles in the The structure of the EU legal order should also not be to make room for subsidiarity the to of democracy and rule of law to the specific of the EU legal which from the law that to the relation between the and these the The is therefore that there is for subsidiarity in the EU legal order. this a of is in order. do these In the case of the EU legal have two for subsidiarity. there is within these for a principle of subsidiarity. In the there is of The here are the EU The are with their and these two of to EU This of the EU legal which to the of democracy and rule of that principle of subsidiarity is out of in this In the have the EU and the the with to that the the with to of an The relation between the two is not so the hierarchical conception cannot apply. The two are also not related as and units of to are some a larger is the important and for a smaller is the in the EU case as it is for principle of subsidiarity to a principle has to a for (Cahill or a of but a or is for some the larger is and for the smaller In the there cannot be a for the smaller The the The is therefore that subsidiarity is out of in the EU legal order. This is I have to the that the EU has codified a principle subsidiarity. to the to the there is for subsidiarity in the EU legal order. there is a principle subsidiarity in the EU this codified principle is a principle of and also as then that that I have a in the to the in this I discuss the codified principle (Section and main (Section I shall that the have used the subsidiarity which also I that the codified principle is not a principle of subsidiarity. It has the name but not the defining feature of subsidiarity (Section European Union. the principle of in which do not under the Union shall and in so far as the of the cannot be by the or and level, but can by of the or of the be Union The of the Union shall apply the principle of subsidiarity as in the the application of the principles of subsidiarity and with the principle of subsidiarity in with the out in that The codified principle has the the codified principle is to apply in I have here the This can be from the of the which to and by EU and by in relation to the of of EU and the this is the of the principle is also in the literature the codified principle is to the of already allocated and not to the of can in theory be of the principle of subsidiarity This can be from the to and also from the of 5 in which subsidiarity is a principle of the codified principle to the of The are in 2 under the and of Union between 3 4 and in which the EU has the to or the of the 6 The codified principle of subsidiarity not apply the EU or the have The of application of the principle is to the the EU and the it is that with these the rule their to the that the Union has not exercised may is the Union that whether it and whether the are to the It is this by the EU to that has to be in with the principle of subsidiarity. This to the and final the codified principle to the the of the EU the in the application of the codified and it is for EU to apply the principle. by EU have to be by a that the with the principle of and these have to be to the can then why the do not with the principle. these a of the then the of has to be The to it is the EU the codified principle is also and here as well it is an EU that in the the the European of have not subsidiarity cases. And in the for the is whether the of has a or to the of for the that EU a in order in to to the of the is already to that this be EU in In the that the has it to the conditions in this of that necessarily in to there have a of subsidiarity and the approach by the European of has as and and these and a the of the codified principle. the codified principle is to apply to I have here the the principle not the of but the of already allocated by the principle the of Within the in which the EU and the the are to a within this EU have not to with to that the EU are the with to the application of the principle. The principle is by EU in the and the The is that the codified principle and the of law in which it is cannot be to a for the of by the the principle a it is a for the of by the In the (Section I that there can be for the smaller units of authority in the in the EU to the EU should have and with to the authority has to with the government by of law. that have a the codified that this principle not a for the smaller units of the principle a it a for the larger The of the of the codified principle is therefore that the principle is not a principle of subsidiarity. It is not a principle it not have the of defining The principle not a for (Cahill or a of The that the codified principle is a principle of subsidiarity in name from the in the subsidiarity literature that there is between the EU conception of subsidiarity and other subsidiarity This for be from the in the literature between the of the principle in European law and the of as in Section is the claim that conceptions of subsidiarity in EU law is a and should be in light of the out in the It within the of to be so and to be or it is This with the the in the that there is for subsidiarity in the In this I the that in the European Union a principle subsidiarity is in under The of this is that this is a principle of subsidiarity in name The principle not have defining the this the that subsidiarity not apply in the case of the EU legal order. In this article I have the question of whether there is a for subsidiarity in the EU legal order. The answer to that question I of to EU and political (Section EU have so far political for (Section The I is that there is for subsidiarity in the EU legal order. This is which from the of applicability conditions with the structure of the EU legal order. In this final I from the of the case study a has already given in and it is in order to collect some of the approach and also to indicate the approach can to subsidiarity I in Section that subsidiarity appear to have theory the principle of in legal orders or the principle's conditions of have the principle's and but these have not or And their do not the some that the for subsidiarity is the address this of I have developed in the of the case study the European Union an approach a between conceptions of subsidiarity and conditions of application from The of a specific legal order are from the of that which is given by the of relation that this order under to of legal orders (Section I to this approach as integrated the from two and the are confronted with other in the The applicability conditions from the the of the legal order from the relation that is under with of democracy and the rule of law. The approach is integrated these have to be This approach may be of as or This is not to the that the of a legal order as it is whether the applicability conditions of a conception of subsidiarity are met. it has to be that the legal order in question always has to be and that this of the structure in light of of democracy and rule of law that the order is to The approach a more as as the question is whether a legal order should be to the applicability conditions of a principle of subsidiarity. The case of the EU has that is then the of the legal given by the of the relation that is under and as by of democracy and rule of law. The that there is for subsidiarity in the EU the applicability of subsidiarity in legal orders or that with the the that the EU for as the or the of this case study to that subsidiarity is to and to that subsidiarity is the of the EU is in is to address this the of the of the EU legal order as in Section I to that the of an integrated approach to subsidiarity and legal order not the specific that I have I to make their the approach that is here to the case of the EU all that is in a question that may straightforward can to The is that this case study can the for The of