Subsidiarity in the Courtroom

Andrea Biondi

in EU Law after Lisbon

Published in print January 2012 | ISBN: 9780199644322
Published online May 2012 | e-ISBN: 9780191738173 | DOI:
Subsidiarity in the Courtroom

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Since its introduction in the Treaty of Maastricht it has been gradually accepted that the principle of subsidiarity is to be considered a new concept of governance whereby competences are not attributed exclusively to a single Central Sovereign but they can be allocated to different and most appropriate regulatory levels. However, apart from a sort of conscious awareness about the presence of such a principle, its practical application has been, at best, minimal. Certainly we have not seen any ‘judicial’ application. Generally, the reluctance of the European Court of Justice could be justified in terms of separation of powers as the Court was cautious in substituting its own judgment for that of the institutions, in assessing a choice which was ultimately perceived as political. This chapter argues that it is instead time for the Court to take subsidiarity seriously as judicial application is the only way of making subsidiarity a true operational principle of governance in the EU. After all, Article 8 of the Protocol on the Application of the Principles of Subsidiarity and Proportionality attached to the Treaty of Lisbon introduces a new form of action for a breach of subsidiarity. The questions addressed in the chapter are thus: can we expect a new and developing case law on subsidiarity monitoring? Is the Court equipped for this new task? What kind of justiciability test would need to be employed? In short, is this a good or bad idea?

Keywords: subsidiarity; separation of powers; union courts; national courts

Chapter.  8545 words. 

Subjects: EU Law

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