[1] terms of whether the member states would

1 Article 3(1) (TFEU)

2
Article 4(2) (TFEU)

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3
Article 6 (TFEU)

4 P.
Green, ‘Subsidiarity and the European
Union: Beyond the Ideological Impasse’, Policy and Politics Vol 22 (1994),
pp287-300.

5

6
Treaty of Maastricht available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:xy0026

7 Treaty
of Lisbon available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:ai0033

8
Cyban, “The Parliamentarisation of EU
Decision-Making? The impact of the Treaty of Lisbon on National Parliaments”
2011 364 EL Rev 480-499 at 484

9 Review of the Balance of Competences between
the United Kingdom and the European Union available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388852/BoCSubAndPro_acc.pdf

10 Common European Sales Law Available at:
http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2014/130721/LDM_BRI(2014)130721_REV1_EN.pdf

11

12 Judge
Lars Bay Larsen: 6th subsidiarity conference 18th
December 2013 The Judicial Review of the
Principle of Subsidiarity at the Court of Justice of the European Union

13 Case C-376/98 Germany v Parliament and Council Tobacco Advertising
2000 Available at: https://webstroke.co.uk/law/cases/case-c-37698-tobacco-advertising-i-2000

14 https://portal.cor.europa.eu/subsidiarity/news/Documents/Subsi_Conf_2013/Berlin%20-%20Judicial%20Review%20of%20the%20Principle%20of%20Subsidiarity%20(Dec%202013)%20Draft%20before%20delivery%20REV%20doc.pdf

In conclusion the legislative framework of the EU has made
It clear that the three principals have little effect when applied alone. The
principle of subsidiarity will often interlink with the principle of
proportionality because proportionality has a greater application. Despite this
there is no denying that the principle of subsidiarity plays an important role
in legislative process and this role is expected to expand in the future. The
issue with the principles as separate entities is that they provide two different
functions. The principle of subsidiarity looks at necessity in terms of whether
the member states would be better positioned legislate whereas the principle of
proportionality forces member states to review the pros and cons and thus a
much broader and detailed application is apparent, moreover the principle of
proportionality applies to EU institutions as well as member states. However, the
EU institutions must consider respect for proportionality. However, it is
accepted that the courts must respect the principles throughout the legislative
process.

In the famous case of Tobacco Advertising13
the German Government had requested for the termination of a Directive on the
grounds of both subsidiarity and proportionality. The court annulled the directive.
However, once the court had done this there was no need to review the principle
of subsidiarity as judges are very reluctant to make unnecessary work.14
From this case we can see that the application of the principle of subsidiarity
alone is difficult. This is mainly because it often ties in with the principle
of proportionality. Therefore, the examination of the principles is inclined to
overlap.

Ex post control refers to the idea that the principle of
subsidiarity is subject to judicial control. As we know the principle of
subsidiarity only applies in areas in which the union does not exercise
exclusive competence. Consequently, meaning that the principle of
proportionality can have a much broader application, and this is something that
has been illustrated within the judicial application of proportionality.

The principles of subsidiarity and proportionality together
form a vital function underlining and regulating everything the EU does in areas
that do not fall within exclusive competences. The control of subsidiarity is
said to be “two-fold” – an ex ante control carried out by national parliaments
and an ex post judicial control by the Union Courts.12
An ex ante control system involves procedures such as the yellow card system
under the Subsidiarity protocol to the Lisbon Treaty (Protocol 2). This allows
national parliaments to give opinions as to why they believe the doctrine of
subsidiarity to be violated. However, it is worth mentioning that systems such
as the yellow card system has only been used twice suggesting that it is merely
a last resort rather than a means of enforcement.

Within the UK there is a concern that the delegation of
powers could potentially lead to a loss of oversight from the European
Parliament and the European Council. Use of these acts could potentially lead
to European Commission to abuse its powers by taking powers away from national
authorities. However, it is generally held that the principles attempt to
create better quality legislation as a more knowledgeable body would be better
place to deal with more local issues as outlined in Article 4 and 5 of the
TFEU.

The principle of proportionality is often applied
differently as this is something that is evaluated at proposal stage of the
overall legislative process. It has been suggested that the references to
proportionality are somewhat limited or at least secondary to the principle of
subsidiarity. This implies that the principles do not always work in harmony as
they should, as in this instance one could be perceived as more important
within the legislative process that the other.

The overall valuation of the principle of subsidiarity can
differ. For example, the need for the Common European Sales law 201410 has
been persistently questioned mainly on the grounds of subsidiarity. The Law
Society believes it ‘to be a disproportionate policy response to an unclear
problem and to infringe the subsidiarity principle.”11 The
issue is that is that there is little evidence that a problem exists, thus it
may be best for the EU to avoid legislating on this matter. Alternatively,
however the Law Society of Scotland sees matters differently in that a single
legislative system may be better suited to this issue. It could be said
therefore that the rules of subsidiarity and how they interlink with the powers
conferred don’t amount to much but serve a more “regulatory” role rather than
having a more legitimate binding effect.

The principles of subsidiarity and proportionality have
become deep rooted within the setup of the EU and the legislative process. This
has been reinforced by the EUs engagement with an agenda for “Smart Regulation”9 However
it has also been suggested that the European Union may choose to ignore these
issues, leaning towards harmonisation. Either way the regulation of legislative
decisions is vital to a well-functioning governmental body regardless of the
potential inconveniences to the European Union.

The rapid growth on the powers conferred to the European
Union can be seen to have a positive effect on the how the principle of subsidiarity
is applied. Successful treaties such as the Treaty of Maastricht6
and the Treaty of Lisbon7
have granted the EU greater competences and thus pathing the way for more
choices to be made between EU, national or regional powers respectively. This
highlights the importance of the principle of subsidiarity within the EUs
competences. Cygan suggested that it suggests a presumption against any EU
action, however since the Treaty of Maastricht the meaning of the principle of
subsidiarity has been up for debate.8

One of the EUs many unique functions are that competences
are not entirely based to a sovereign focus point. But rather that competences
can be allocated to more suitable levels of government, whether that be the
member state or an alternative government body. For example, the Environmental
and Climate Change Report5
highlighted the lengthy debate relating to whether the EU has acted in
accordance to the requirements set out by the principle of subsidiarity. In
this situation it was related to the issue of localism. Additionally, within
this report issues regarding proportionality emerged. Overall the report
stressed the importance of subsidiarity and proportionality as concepts. There
is a need for these principles, otherwise there would be no checks on EU
competences in place. This seems even more vital today as competences have been
growing relentlessly since the creation of the European Union in 1972 (then
named EEC) However, as I will go on to explain it isn’t always applied
straightforwardly.

The EU must follow the rights set out in the principles of
subsidiarity and proportionality. Within the principle of subsidiarity if the
EU does not hold exclusive competence it can only act if it is seen to be
better placed than the member state. This principle essentially underlines the
balance of competences as when the EU is said to hold competences there must be
a discussion as to whether that competence should be carried out by the EU, the
member state or whether it be better suited at sub-national level. The logic
behind this is that for reasons of democracy and justice, actions should be
performed at the level of government closest to the people that they will
affect, only being passed up to a higher level where necessary in the interests
of efficiency.4 Under
the principle of proportionality, EU action must not exceed what is necessary
to accomplish the goals set out by the treaties of the EU.  

The competences of the EU are set out in the EU treaties.
The EU is only permitted to act according to the limits conferred upon it by
the treaties thus the EU is forbidden from acting in areas in which have not
been conferred upon them. There are 3 different types of competences –
exclusive1,
shared2
and supportive.3
Only the EU can act in areas of exclusive competence, such as monetary policy
for the Eurozone. Within areas of shared competences, such as Transport, either
the EU or member states can act, however the member state may well be prevented
from acting if the EU has already done so. In areas of shared competence, such
as culture, both can act, however action from the EU does not prevent action
from the member state in this instance.

In this is essay I will
critically discuss how the principles of conferral, subsidiarity and
proportionality work together and how they have shaped the legislative
competence of the EU. I will begin my essay with a brief explanation of the
principles and then follow on to discuss how successfully they have shaped the
Union. My essay will conclude that the principles are reliant on each other.