Subsidiarity and the EU Law - Essay Example

Article 11 of the UK Constitution establishes the principles of subsidiarity or the principle that the EU will interfere on the failure of a Member State to achieve the intended objective and the principle of proportionality of the principle that limits the content and form of the EU's action to what is essential to achieve the Commission's objectives. This article further clarifies that the limits imposed on the EU competencies are determined by the principle of conferral. These competencies during use are subject to the principles of subsidiarity and proportionality. Article 1-11(3) includes regional and local governments within the ambit of applicability of subsidiarity; this constitutes an important extension to Article 1-11(1). The role of the judiciary and the future of the ECJ were not given prominence in the workings of the European Convention. This is further borne out by the fact that in outlining the responses of the Constitutional Convention to the Laeken declaration, the preface to Parts I and II of the draft Constitution states that the Constitution "establishes the necessary measures to improve the structure and enhance the role of each of the Union's three institutions, taking account, in particular, of the consequences of enlargement". The reason for this omission of any reference to the ECJ is that the Laeken declaration identified themes and challenges which were mainly political in nature and, consequently the focus was on the political institutions of the EU. In addition, the workings of the ECJ and the future of its judicial architecture had been extensively considered in the Treaty of Nice. Hence, it was thought to be unnecessary to consider these issues once again. Jurisdictionally, the ECJ's role is limited to providing clarification to EU Law, referred to it by the National Courts. The competence and power to make factual determinations, application of the law to the facts of the case and finding remedies are vested with the National Courts. The ECJ's supremacy in respect of issues involving the EU Law is accepted by the National Courts; however, the ECJ depends on these very same National Courts to implement its recommendations and rulings. It is here that the National Courts covertly interpret the ECJ Rulings to their advantage. In this manner the ECJ is compelled to engage in a cajolatory and conciliatory relation with the National Courts to achieve compliance with its rulings. The European Union's basic principle of federalism is defined by the principle of subsidiarity. The European Court of Justice has to adopt this principle in its rulings. The Maastricht Treaty of 1992 has bestowed upon this principle of subsidiarity the status of a fundamental norm of the European Union. This principle requires the Community to act whenever; the Member States are not able to achieve the objectives of some proposed action, due to the enormity of the relevant factors involved and the like. This principle further has a normative quality in respect of politics and as expressed in the preamble to the Treaty of the European Union it requires decisions to be taken with as much proximity to the individual citizens as possible. The consequences of the principle of subsidiarity are not yet settled, although it has been confirmed that this principle can be implemented in law, the ECJ has to instil this principle with sufficient substantive content. Even though the ECJ is not legally bound by subsidiarity, all the same it has to take cognizance of the Constitutional values which this principle encompasses. The division of judicial roles under Article 234 embodies judicial subsidiarity in which responsibility for decision making is allocated between the National Courts and the ECJ, according to comparative institutional expertise. The ECJ has numerous reasons to defer action on any matter. The ECJ is at liberty to interpret the law in a manner, which is based on factual issues by generalizing (Marschall). However, such rulings rest on unsubstantiated assumptions, which are incompatible with the strict review professed by the ECJ. It is to be borne in mind that no single remedy can anticipate each and every contingency that may arise. In cases involving discrimination, stronger measures have to be adopted. This is illustrated in the case of Abrahamsson, where the ECJ rejected a preference scheme, which went beyond those of previous cases, without taking the contextual justifications offered by the scheme's defenders. On the other hand, preferential treatment may not be justified in fields where women have always dominated, for example in nursing. A different issue is raised by a judgement in Kalamke, where the ECJ has decided on the basis of principles irrespective of the factual context. This reveals that the ECJ has the power to exclude certain justifications as a matter of EU Law. This is analogous to the ECJ's indirect discrimination case law, which also deals with the structural factors that disadvantage women. The ECJ has deferred to the National Courts, in such investigations as they a great deal of factual investigations, to assess justification and apply the principle of proportionality. However, the ECJ has ruled out some justifications on principle, as non - transparent or generalized more than is warranted by the situation. Unlike its US counterpart, the ECJ has no jurisdiction over fact finding. Further, a strongly centralized ruling would be in violation of the institutional norms within which the ECJ operates as a judicial system, which is above the National Courts. To enforce proper review the ECJ can resort to the issuance of strict guidelines, which will guide the National Courts. The final decision should be taken by the National Courts in such cases. This permits the National Courts to uphold individuals' rights, in strict conformity with the social policy. In this manner the ECJ defers these issues to the discretion of the National Courts rather than to the National Governments. Similar to the case of Johnston, the positive action cases mark the initial stages of the constitutionalization of gender equality, whereby ECJ applied the strict interpretation that it applies to the economic expression of the equality right. In Johnston and Kalamke the ECJ refers to equality as an individual right contained in a directive and the fundamental rights aspect emerges only in the Advocate General's opinion, which states that "a derogation from a human right as fundamental as that of equal treatment must be appraised in a restrictive manner." Tesauro opined in Kalamke that equality is "a fundamental right the observance community law ensures" and highlights the ECJ's fundamental rights jurisprudence, describing equality as both "a fundamental value of every civil society" and "a principle which is safeguarded constitutionally in most of the member states' legal systems." Hitherto fore, the ECJ had enforced such strict interpretations only in respect of free movement cases, where the equal treatment norm was instantiated in the EC Treaty. By considering gender equality as fundamental, these opinions have equated it with the quasi - constitutional force of the fundamental liberties of free movement. Strict review of gender cases drastically reduces the amount of discretion traditionally granted to Member States implementing directives on social policy. In the case of Kalamke, the ECJ interpreted equal treatment as a community norm in order to overcome the result obtained under an almost identical provision of the German Constitution; this provision had been specifically amended in order to permit positive action following a decision by the German Constitutional Court Endorsee, to ensure gender equality. This decision forced the necessity to recognize fundamental rights in the light of the principle of subsidiarity. In Marschall, the ECJ utilized the savings clause in order to introduce Member States' discretion. However, the adherence of the ECJ to a formal structure, which treats Article 2(4) of the Equal Treatment Directive as a deviation requiring strict review, has only served to ensure that future conflicts will arise. The unavoidable conflicts that will be generated will continue to highlight the issue of the relevance of subsidiarity in the field of fundamental rights. Some commentators have recommended the adoption of a margin of appreciation approach as is found in the European Court of Human Rights, in order to accommodate differing concepts of equality among the member states. The distinctive roles which the two levels of the EU Judiciaries play, under Article 234, procedure lend themselves naturally to the application of the subsidiarity principle. In contrast to the usual portrayal of fundamental rights as an arena in which the ECJ and the National Courts are competitors, this provides a model of judicial subsidiarity in which the two levels can be viewed as allies and not as antagonists in their common role as protectors of individual rights. Subsequent to the cases of Kalamke and Marschall several amendments to the EC Treaty have been effected in order to amend the gender equality law. In particular The Amsterdam Treaty included a specific provision, Article 14(4), in order to reverse the result of Kalamke. After the Volte Face by the ECJ in the case of Marschall, this provision has been rendered superfluous. In Abrahamsson, the Court refused to give Article 14(4), any independent substantive meaning, although it kept the option of doing so in the future open. The Treaty of Amsterdam has led to a greater Community involvement, with social equality. Article 13 of the Treaty provides EC, with broad enabling powers to enact anti - discrimination measures, protecting specified status groups. Two new directives passed under this Article have added race, ethnicity, religion, belief, disability, age and sexual orientation to the list of categories protected from discrimination by EC Employment Law. The new charter of fundamental rights of the EU has non - discrimination and positive clauses in it. The continuous process of constitutionalizing equality of community law will only serve to increase pressure on the ECJ to bring about a balance between the need to protect fundamental rights and the ensure respect for the sovereignty of Member States. This requires a still greater effort on the part of the ECJ to enhance its cooperative partnership with the state judiciaries. The enactment of legislation contrary to Community Law has lead to a claim for damages in Sweden. The liability of Sweden for judiciary acts has recently materialized in a case where the Supreme Court did not apply for a preliminary ruling. In the D.S. Larne v Volvo case, Volvo sued a company D.S. Larne for offering "Volvo Service" although it was not authorized by Volvo to repair its cars. The question was whether this behaviour was permitted or not. Under the Council Directive to approximate the laws of the Member States, relating to trade marks. The Swedish Supreme Court had to decide whether the name of Volvo, in this case, fell within an exemption provided for in Article 6 of the trademarks directive. The plaintiff requested the Court to seek a preliminary ruling regarding this interpretation. It interpreted the Article without seeking a preliminary ruling and concluded that D.S. Larne had infringed the Volvo Trade Mark. A few months later the ECJ gave a preliminary ruling in which it referred to the Austrian Case involving BMW. In this case the exemption under Article 6 was however, interpreted differently. The ECJ found that the use of Trade Marks such as in the Volvo Service Case is permitted under the directive unless the proprietor of the trade mark had suffered serious damage. In the Volvo Service Case, Volvo never contended that the damage was of a serious nature. Thus the outcome for the D.S. Larne would have been completely different if the Supreme Court had requested the ECJ to furnish a preliminary ruling or at least had waited and decided this case after the preliminary rule concerning the same issued had been decided. The ECJ was designed as an international tribunal with a strictly limited sphere of activity but it exceeded its brief and assumed a role of far greater consequence compared to this restricted mandate. It soon moved to establish the supremacy of the law which it administered and had declared itself as the sole competent authority to administer the law. The ECJ abrogated to itself with all the paraphernalia, in the form of powerful remedies, in order to bind the legal orders of the Member States. A model of law emerged more formalist and more coercive than the national legal orders of any Member State and this was perhaps ill-adapted to the constitutional context in which it was to operate. The supremacy principle represents the installation of a Kelsenist conception of legal sovereignty. Pooled sovereignty must imply the acknowledgement of "co-ordinately valid legal systems" 1 and must establish the EC legal system as one among equals. All the same, this is not only proving difficult to move far from the concept of sovereignty in the political arena but it is harder still to eliminate it inside the legal order. The theory of law as an instrument of command and coercion has qualities of endurance. The impetus to constitutionalize human rights and to extend this to the general constitutional principles has endorsed the ECJ to make forays into the classic hierarchy of legal norms. As Dworkin's had observed rights are "trumps" through which courts gain power and legitimatize their own claim to sovereignty, this sovereignty is at the very heart of the business of courts. A legal framework encompassing plurality, not only implies respect for national legal orders but also a non-hierarchical method of mediating conflict. Writing in the federal context, Fritz Scharpf clearly stated the consequences of a plural adjudicative regime in the following words: [T]he recognition of a bipolar constitutional order prevents the one-sided orientation of judicial review towards the enumerated powers of the central government, which is otherwise characteristic of federal states. It requires the court to balance competing jurisdictional claims with a view not only to their substantive justification, but also to the manner in which the powers are exercised. The criterion is mutual compatibility, and the characteristic outcome is not the displacement of one jurisdiction by the other, but the obligation of both to choose mutually acceptable means when performing the proper functions of government at each level2. The initial role formulated for the EC was one of a non-confrontational, non-hierarchical, co-operative judicial machinery and under Article 177 now 234 of the EC, the ECJ was vested with a consultative function, whereby it would provide advise in cases of doubt regarding the meaning and interpretation of EC law. however, with the passage of time, "as the Court's integrationist culture and mindset hardened", a distorted vision surfaced of a "quasi-federal instrument for reviewing the compatibility of national laws with Community law" 3. The erstwhile adviser had transformed into the indefensible position of a partisan umpire - the so called Scharpf's asymmetrical monster - and had also acquired inter alia enforcement powers. There was also a tendency to excessively resort to a reference procedure, which had shown itself to be insensitive to the balancing exercises for which it had been made4. This has made it glaringly obvious that there is need for a true judicial dialogue, with an opening for national courts to indicate potential impact of decisions on the national legal system. Such a measure would serve to force them to articulate their reasoning in the language of that system, reinforcing domestic accountability by submitting judgements to scrutiny in the national arena where their impact has to be assessed. The principle of the national procedural autonomy has to be compulsorily reinstated and any departures from this rule have to be justified by reference to the twin principles of proportionality and subsidiarity. It has to be borne in mind that there is room for a median position between the extreme poles of integration and unregenerate pluralism. The silver lining on the cloud is that there are indications that the ECJ has given cognizance to this vital aspect. This is brought out clearly in the recent case law, which has become more tentative, thoughtful and sensitive to national requirements and situations. The European Court of Justice had recently suggested that the National Courts should "apply Community law themselves, and not... resort too hastily to the solution afforded by a reference to the Court of Justice"5. These developments can be interpreted as welcome signs of the change in the perception of the ECJ, which would therefore welcome legal diversity manifested in a valid legal system, which is coordinated in its approach. This welcome development in no way undermines or reduces the potency of the arguments discussed. Essentially the case for a harmonised judicial protection is based on theories of the market. It requires more than a uniform substantive law in order to permit the markets to flourish, since the disputes arising out of business conducted in the market have to be resolved in a manner which is consistent with the Member States involved. There is bound to be distortion if the mode of litigation, with all that this term connotes, by way of procedural techniques and their implications for costs, delays, appeals, enforcement of judgements and so on, varies substantially from one place to another. The idea of a single 'internal market' requires for its complete realisation a single system for the judicial resolution of disputes6. Uniformity is essential for this to take place. The ECJ has sound reasons for deferring to the National Courts the assessment for positive action. The European Union (E.U.) may aspire to become "an ever closer union," but the current status of Community law is far from the integrated federal system over which the U.S. Supreme Court presides. A U.S. model of centralized adjudication may be therefore inappropriate for positive action cases in Europe7. The Supreme Court has direct appellate jurisdiction and this makes its judgements final in respect of decisions involving federal law, from fact-finding to remedies, even for cases arising in state courts8. American affirmative action cases bear the imprints of this centralized authority. The Supreme Court's decision in Croson, which rules out societal discrimination as a justification for preferential treatment based on second order prudential concerns, provides a strong example of the top-down control that the Supreme Court exercises over constitutional law9. In marked contrast to this, the ECJ stands in a very different relationship with the national judiciaries10. "The constitutional discourse in Europe must be conceived as a conversation of many actors... rather than a hierarchical structure with the ECJ at the top." Under Article 234, the ECJ is restricted to answering questions on E.U. law certified to it by national courts. Jurisdiction to make factual determinations, to apply the law to the facts, and to determine remedies is vested with the referring court. These jurisdictional constraints limit the ECJ's ability to impose its fiat unilaterally. Although the ECJ's supremacy on issues of E.U. law is no longer challenged overtly, the ECJ depends on national courts both to refer cases and to implement its rulings afterward, which gives national courts subtle powers of resistance. Lacking appellate enforcement power, the ECJ must therefore engage in a discourse of comity and mutual respect in its rulings, if only to encourage national court compliance. At some stage in the proceedings, the ECJ has to take into account the subsidiarity principle, the E.U.'s basic principle of federalism. Elevated to the status of a fundamental norm of E.U. law at Maastricht in 1992, the subsidiarity principle requires that the Community act only "in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community." Viewed primarily as a rule of comparative efficiency, the rule has a normative political element as well. As expressed in the preamble to the Treaty on European Union, it calls for "decisions [to be] taken as closely as possible to the citizen."11 The ramifications of subsidiarity on Community law remain unsettled. Although it has confirmed that the principle is justiciable, the ECJ has yet to imbue subsidiarity with much substantive content. Even if it is not legally bound by subsidiarity, the Court, all the same has to take account of the constitutional values which the principle embodies12. As such the subsidiarity principle was incorporated into E.C. law in order to accommodate activist rulings from Luxembourg13. This division of judicial roles under Article 234 embodies judicial subsidiarity, whereby responsibility for decision-making is allocated between national courts and the ECJ according to comparative institutional expertise. One example of this logic may be the level at which the proportionality test is applied. Commentators suggest that the ECJ is prone to deferring to the national courts to assess proportionality in cases of political sensitivity, cases which are highly complex or where localized fact-patterns are present. Delegation of decision making authority to national courts permits decisions to be taken as closely as possible to the citizen. The unclear nature of preferences, which aim to establish equality through means that prima facie violate equal treatment, requires particular attention to context to ensure that they rest on genuine needs and are not stereotypical. Further, this proportionality in respect of such remedies is dependent upon highly contingent factors, like historical patterns of inequality, lingering effects, availability of alternative forms of relief, etc. National contexts vary14, and the relevant context will often be sub-national15. It is obvious that the National courts can handle such cases in a better manner than the ECJ and this is also as per the provisions of Article 234. Though, the ECJ can always interpret the law in a manner that resolves factual issues all the same, by their very nature, such rulings often rest on unsubstantiated assumptions which are incompatible with the strict review the ECJ had professed16. Further, it is important to recognise the fact that no one remedy can anticipate every contingency. Stronger measures may be required to be applied in contexts where discrimination remains entrenched and when previous attempts at redressal have failed. Such was the case in Abrahamsson, where the ECJ rejected a preference scheme that went beyond those of previous cases without considering the contextual justifications offered by the scheme's defenders. Conversely, preferential treatment may be unwarranted in fields where women have historically predominated, such as nursing17. A different issue is raised by a judgment such as Kalamke, where the ECJ appears to have acted more from reasons of principle than on the basis of facts. Evidently, the ECJ has the discretionary power to exclude certain justifications as a matter of E.U. law. However, in recognition of the mainly factual nature of such investigations, the ECJ has been consistently deferring to the national courts in these cases to assess justifications and apply proportionality. However, the ECJ has ruled out some justifications on principle as non-transparent or overly generalized. All the same, to generalize from those rulings a decision as far-reaching as Croson would not be in order. The ECJ excluded the justifications in such cases because they masked other, more objective criteria that could have been examined instead. The U.S. Supreme Court did not reject societal discrimination in Croson because of a lack of objective criteria supporting it, but, it worried that an overabundance of evidence would make it impossible to control the objectivity of the lower courts' fact-finding used to justify preferential remedies. However unlike its U.S. counterpart, the ECJ has no general jurisdiction over fact-finding18. Moreover, such a strongly centralized ruling would violate the institutional norms within which the ECJ operates as the central organ of a supranational judiciary. Both the prudential understandings implicit in Article 234 and judicial subsidiarity principles outlined above weigh heavily against it. This does not imply that the ECJ should have no role in selecting positive action plans For example, in rejecting outcome-based justifications for preferences; the ECJ has acted within its prerogative to interpret an E.C. directive. The ECJ should frame the analysis in legal terms and, if possible, identify the factors to balance and by supplying extremely detailed guidelines, the ECJ can emphasize that strict review is required. It can be safely assumed that the final decision in this regard has to rest with the national courts. The devolution of more of such decisions to national courts would go a long way to reconcile the strict interpretation demanded by a derogation against an individual right, with the flexibility that Community law has traditionally allowed Member States implementing a directive on social policy19. The draft Constitution enhances the position of the ECJ as the supreme court of the Union. The Constitution provides for a clearer hierarchy of norms and grants to the ECJ jurisdiction to review the constitutionality of legislation. It formally incorporates the principle of primacy and contains a number of provisions which govern the division of competence between the Union and the Member States and the allocation of powers. In conclusion it can be stated that the early case law shows that the ECJ denied that fundamental rights were part of the Community legal order. The ECJ then changed its stance and gave cognizance to fundamental rights and general principles within the scope of Community Law. Art 253 facilitates judicial review proceedings as it requires the legal base to be specified and a basis for legislation to be set out. Subsidiarity means that decisions should be taken as close to the individual as possible. Decisions at the Community level should be taken only when reasons of efficiency or where the scale of the proposed action means that the decision cannot be taken at the national level are involved. Regulations, on the other hand leave absolutely no discretion to the Member States. Fundamental rights protected in the Community legal system have been established by the case law of the ECJ and the ECJ has been guided in this respect by the constitutional law of the Member States and international treaties on human rights to which these States are signatories. The subsidiarity principle, after its inception, has virtually no effect on the interpretation or judicial review by the ECJ. This is so because; to meet the challenges to the Member States the ECJ has to take decisions, which will fall under the purview of the Community Law. Since, the fundamental requirement of the principle of subsidiarity is the administration of justice to the individual and as the ECJ has to depend on the cooperation of the National Courts for implementation of the law, it becomes impossible for the ECJ to play any meaningful role in respect of the cases involving the principle of subsidiarity. Read More