The Constitution of the United States of America (1787) is a wonder of brevity, made apparent when we read the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).
The European Treaties have tried to define the respective powers of the EU / EC and the Member States in minute detail, which has led to unwieldy texts for the poor reader. Still, it is impossible to fix the boundaries exactly, if both the EU and the Member States are going to have powers.
In the United States, the Tenth Amendment states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
More or less, the same principles apply within the European Community, TEC Article 5, although the people has been conveniently omitted. The Community shall act within the limits of the Treaty and its objectives. In areas, where the Community has been given exclusive powers, the situation is clear, in principle.
In areas of shared power, the objectives of the proposed action have to be weighed against the ability of the Member States to achieve the desired results on their own. If the results can be better achieved by the Community, by reason of the scale of the action or its effects, there may be grounds for Community action. This is the principle of subsidiarity, more or less letting the states including their sub-entities act if they are able to.
In addition, Community action shall be restricted to what is necessary to achieve the objectives of the Treaty. This is the principle of proportionality: to intrude no more than the objectives warrant.
The principles of subsidiarity and proportionality are elaborated further in a Protocol, added to the Treaty of Amsterdam, although it is debatable whether the Protocal clarifies matters substantially.
The Treaty of Lisbon merges the European Community into the European Union and consequently the treaty structure is clarified to some degree. The main principles and institutional clauses are found in the amended Treaty on European Union, and the “earthlier” questions of various policy areas are dealt with in the Treaty on the functioning of the European Union (the re-named TEC).
The principles of conferred competences (attributed powers), subsidiarity and proportionality remain essentially the same, but are moved to the amended TEU, where a new Article 3b has been dedicated to them.
Those who fear encroachment on states’ powers, may find pleasure in the fact that the IGC 2007 added the word “only” to the text of paragraph 2, compared to the Constitutional Treaty Article I-11, which offered the wording.
Additional guidelines are found in the Protocol on the application of the principles of subsidiarity and proportionality (CIG 14/07). The new protocol is clearer than the present one, since it is more focused on the procedural aspects of the application of TEU Article 3b.
Nine articles deal with wide consultation before legislative acts are proposed, sending proposals and amendments to national parliaments, appraisal of compliance with the principles of subsidiarity and proportionality in draft legislative acts, reasoned opinions of national parliaments within eight weeks, taking reasoned opinions into account, possible review of a proposed act, jurisdiction for the EU Court of Justice and annual Commission reports on the application of Article 3b.
In the Treaty of Lisbon (CIG 14/07) version of the Treaty on European Union (TEU), the following Article 3b has been inserted, replacing Article 5 of the Treaty establishing the European Community (TEC):
The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at a regional and local level, but can rather, by the reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.
The institutions shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
My next article on the Treaty of Lisbon is going to look at questions concerning the citizens of the European Union more directly, namely the provisions on fundamental rights.