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Paweł Musiałek  14 września 2019

The Union has been pushing her elbows out for decades. A subsidiary antidote to Brussels’ centralism

Paweł Musiałek  14 września 2019
przeczytanie zajmie 11 min

The only tool that realistically reduces the democracy deficit in the European Union is strengthening national parliaments by applying the principle of subsidiarity. The systemic principle that has been entered into the European treaties is notoriously being violated by EU officials. Without it, the EU’s competence expansion, including excessive regulation and extending judicial interpretation in the EU, will never be stopped. A return to the roots and the balance between states and transnational institutions is not a brake on European integration, but a prerequisite for harmonious development.

To avoid the fiasco of the pre-war League of Nations, it was decided to establish transnational institutions equipped with a large range of authority, so that they would be able to effectively enforce the provisions determined by states. To „denationalise” the officials’ perspective, institutions were equipped with a considerable range of power and autonomy. The states did not want the new bodies to act as a notary confirming the findings or a robot operating according to a predetermined algorithm.

Thanks to their broad autonomy and defining only the framework goal, transnational institutions were to act like artificial intelligence – a self-developing mechanism, which, with its increasing subjectivity, was to allow „creative” approaches to problem-solving, though within a legally defined framework. Transnationality also included an innovative method of voting. In all international organizations, the accepted method of voting was unanimity, which was to guarantee that no state would be imposed solutions it did not agree to. A novelty of the European Communities involved adopting a method of making certain decisions through a qualified majority, which was to improve and accelerate the integration process, even at the expense of diminishing sovereign rights.

In search of political balance

The creation of transnational institutions did not mean that the Member States gave up control of the European integration process. Therefore, apart from transnational institutions, which were aimed at caring for the „European” perspective, classic intergovernmental institutions were appointed, to include representatives of states caring for the national interests and pursuing said interests through the conventional tender formula via negotiations.

The idea of the founding fathers of European integration was to maintain a hybrid model that would ensure a balance between transnational and intergovernmental institutions. At the same time, it would allow building trust and common standards, as well as maintain a sense of control by the Member States to make sure the expectations of voters in individual countries are respected and not to create a federalist construct.

It was rightly pointed out that the Union does not have a democratic mandate to go towards a superstate, as citizens do not elect EU officials, judges or, until 1979, even MPs. Therefore, the legitimacy of European integration is provided only indirectly by intergovernmental institutions supported by national parliaments.

Increasing recognition of transnational institutions

Changes in the treaties performed over several decades, extending the competences of transnational institutions, sanctioned the facts. These changes often were not spectacular revolutions in nature, but rather quiet, not to say very discreet evolution resulting from the expanding interpretation of treaties. Perhaps it was the breakdown of this process over several decades that was the source of their success, as the slow progression of this process may have „dampened” the vigilance of states.

This way, the Union’s technocratic structures cease to play the role of delegation institutions, whom states periodically and conditionally entrusted certain tasks and which are subordinate to the governments’ authority. However, they are becoming an increasingly independent political actor on the European scene, which becomes a „controller” of states in some situations, and thus, in fact, possesses an overarching political position.

Where the EU dealt with transnational issues, namely, policies whose consequences are felt by other countries, one could understand the legitimacy of taking action in these areas. The problem, however, became urgent when Brussels began to increasingly interfere in matters previously considered internal. Interference with the internal legal order was a significant change in the functioning of the EU, from the supporting to replacing the state here and there.

Two reasons for pushing the EU’s elbows out

The gradual expansion of EU institutions’ influence met with criticism from the member states, which has been growing over several decades. It turned out that, despite their wide competences, the institutions widened the scope of their authority, using all the gaps and opportunities available. Thus, this extension of power was often carried out by throwing elbows and led to a gradual expansion of competence. They did this for two main reasons.

The first explanation was pragmatic. It was assumed that the regulatory system created in Europe, focusing on adopting European regulations with superior status over national law, is the optimal and beneficial solution for all EU citizens. According to the Pareto optimality concept, due to economies of scale, transferring regulatory policy management to a higher level is more effective, while entailing no losses or costs to individual societies. Moreover, EU regulatory policies are not redistributive, so they do not transfer resources from one country to another, nor do they concern fiscal policy, which remains the competence of national governments.

The second reason is the natural phenomenon of institutional egoism known in political science. Just like every state administration institution seeks the greatest available resources, influence and scope of freedom, thus playing „for itself” and not in the common interest of the state, the EU institutions are not free from these temptations. One should also remember that strengthening the position of a given institution means strengthening the position of the decision-makers working there, who are not free from political ambitions, and these can be better achieved by shaking free of competence restrictions. Besides, the function of the heads of the European Commission was most often played by experienced politicians who treated the clerical and technocratic EU positions as a stage in their political career.

An antidote to the Brussels’ centralism

The response to the crawling competence expansion involved the Member States increasing emphasis of the need to make the subsidiarity principle real, which was based on the assumption that if a competency was not clearly attributed to EU institutions, there was a presumption of competence of the Member States, and a transfer to a higher decision-making level should therefore only be done when the lower level of power is unable to achieve the goals it defines.

It is worth adding that the principle of subsidiarity is one of the main political principles not only in the EU. In individual countries, it is to reward the decentralization of power. This principle is even more relevant when considering the transfer of competences from the state to an international organization level, as there is an additional argument for the presumption of competence at the state level. While the transfer of competences from the county level to the provincial level is not problematic, democratically speaking, since the authorities at both levels are appointed in elections, such a mechanism does not work in the case of the EU.

Even though the principle of subsidiarity was introduced into the European treaties, not all expectations could be met to stop the EU’s competence expansion, including excessive regulation and extending judicial interpretation in the EU, while at the same time limiting the growing democracy deficit. On the contrary, this principle served to… justify the expansion of the power of transnational institutions!

Why did that happen? This question is perfectly answered in the latest report of the Center for Analysis of the Jagiellonian Club by prof. Tomasz Grzegorz Grosse. According to lawyers, including the principle of subsidiarity, even in a limited form, to the Lisbon Treaty should obligate the EU institutions to prove that there is a need for EU intervention concerning two tests. The first one concerns demonstrating the ineffectiveness of actions at the national level. The second is to show that the goals can be better achieved by EU instruments.

Based on the example of specific CJEU rulings, as well as EC decisions, Prof. Grosse shows that the problem is that the main criterion for assessing subsidiarity for transnational institutions was the effectiveness of assessment of proposed measures in the context of objectives that were generally the EU’s objectives in the treaties. It should be added that, almost, as a rule, the „European goals” that provide the context for assessing the legitimacy of EU institutions had to be implemented „better” by EU regulations and institutions. For instance: caring for the functioning of the internal market in accordance with the Treaty’s four freedoms justifies Community intervention in nearly every case. It is difficult to imagine that e.g. actions harmonizing or introducing minimum standards in the internal market could be implemented better by nation-states.

In theory, the Commission is obligated to justify its legislative initiatives about the principles of subsidiarity and proportionality. In practice, it did this very unreliably and automatically admitted that the EU’s goals were best implemented by EU law.

Therefore, the restrictive approach to the principle of subsidiarity promoted the development of EU regulations, EU competence expansion, as well as reducing the role of electoral decisions in individual EU states. This leads to the obvious conclusion that the Commission is considering the subsidiarity principle to justify the exercise and extension of EU institutions’ authority, and not to limit it. Such a turn of events is not surprising. Professor Grosse points out that both the European Commission and the CJEU are somehow „judges in their case”, i.e. they determine the interpretation of the principle of subsidiarity, although they are reluctant to it systemically, since in practice it could weaken the competence expansion, and thus the power of both institutions in integration processes.

The fiction of national parliamentary checks

It should be highlighted that equipping national parliaments with a tool for controlling the subsidiarity principle in the form of the „early warning” mechanism, as mentioned above, turned out to be fictitious. Parliaments do not have the right to veto, not to mention the inability to affect the change in the content of regulation and their intervention depends on the interpretation by EU institutions, especially the EC. One should also emphasize the short time to intervene.

The parliaments’ weak position in this procedure results from a systemic problem. The Treaty of Lisbon only lists two grounds for the functioning of representative democracy in the EU. The first one are the Member States representations in intergovernmental institutions. The second are the EU citizens representatives in the European Parliament.

The treaty does not provide for national parliaments to be a representation of citizens in European politics. Therefore, the political position of these legislatures in the EU is weak, and the competences introduced by the Treaty of Lisbon are not very effective, since the Commission can downplay the reported problems cost-free.

It treats the discussed mechanisms more like a „loose” formula for political consultations with national parliaments rather than an element of systemic change in European politics. This, in turn, discourages parliaments from making an effort to activate the early warning mechanism, as showcased by the very low number of yellow cards. Professor Grosse rightly points out that it could not have been otherwise because, for EC officials, the assumption that Member States’ actions may be preferable to intervention by EU institutions and law is contrary to the basic assumptions of their concept of developing European integration.

The adoption of the Treaty of Lisbon, together with the new Protocol on the application of the principles of subsidiarity and proportionality, made the application of subsidiarity in the EU not only stop the expansion of transnational institutions but also simplified these processes while intensifying the erosion of national sovereignty, at least for the weaker and smaller EU countries, whose impact on the functioning of the Union is not relevant. Therefore, some researchers define this principle as „masking”, as it facilitates manipulating the debate around competence expansion, and even legitimizes it through the procedure of verifying subsidiarity.

The only tool that realistically reduces the democracy deficit is strengthening national parliaments. All advocates of European integration who are afraid of ever stronger anti-EU movements should support completing the EU Treaty with the principle that national parliaments are one of the foundations of the functioning of representative democracy in the EU, and also seriously discuss the mechanisms of national parliaments’ control over transnational institutions. These proposals will be an important signal for the increasingly stronger pan-European movements contesting the status quo. A return to the roots and the balance between states and transnational institutions is not a brake on European integration, but a prerequisite for harmonious development.

Polish version is available here.

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The publication co-financed by the Ministry of Foreign Affairs of the Republic of Poland as part of the public project "Public Diplomacy 2019" („Dyplomacja Publiczna 2019”). This publication reflects the views of the author and is not an official stance of the Ministry of Foreign Affairs of the Republic of Poland.