Subsidiarity Principle - Essay Example

Subsidiarity Principle Introduction Subsidiarity as defined by Article 5 EC, which states: “The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and 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. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty” (Fisher, 2005). The popular public opinion that exists today is the perceived political crisis in the European States. The European Union included, within its gamut, a total of 10 new members, in May 2004 thereby expanding its scope. This fact calls for the presence of a concrete plan for reconsideration of the processes which involves political decision making in the European Union. This need, however, was sought to be resolved by the designing as well as implementation of a Constitution for the European Union. In mid – 2005, this proposed plan was faced with negative criticism in the form of rejection by the voters in France as well as the Netherlands, who displayed their disagreement on the issue and voted against the ratification of the existing constitution. The observers attributed this widespread rejection to several factors including the perception of the voters who believed the proposed changes to be “too far fetched”, while yet others who perceived it to be “full of limitations”. Such contradictory opinions towards the Europeanization were well received by the European Union who promptly postponed the application of the proposed changes in the constitution in some countries leaving scope for future resolution of the matter (Ederveen S, Pelkmans J, 2006). The process of globalization as well as Europeanization has accelerated in the past couple of decades which led the European Commission to reconsider the proposition of implementing certain changes in the draft constitution, whereby, the powers for controlling as well as decision making on several topics would be shifted to the European Union. Some skeptics are still divided on the opinions of further implementation of centralized decision making powers to the European Union, and to approach this topic of debate it is of utmost significance to equally weigh the pros and cons of the said subject matter, which is completely in accordance with the principle of subsidiarity, that states that the power of decision making should be shifted to the larger controlling authorities only in cases where the smaller associations are incompetent to do so. In spite of the fact that the principle of subsidiarity is often unanimously perceived as a step further in restring the shift of powers towards the European states, this could well be seen as a pure cost – benefit analysis of the concept of centralization. The application of the principle of subsidiarity is a mere tool of testing the proposed benefits of such co-ordination to the European Union and compares its costs, on the other hand. The wide spread difference in cultural and regional diversity existing among several of the European states, contributes a great deal in complicating the impact of central co-ordination whereby the interests of the politicians are divided on the issues over choosing to concentrate their energy and efforts on the individual territories or focusing on the common interest of the general public. This essay, on the principle of subsidiarity is an attempt to test the optimal degree of centralization, whereby the theoretic considerations of the applicability of the proposed plans are seen and compared with the resultant repercussions of the same. It also includes the discussion on the applicability of the principle of subsidiarity, its effectiveness of failure thereof, in relation to the countries such as USA, Africa as well as the member states of the European Union. A detailed discussion on the principle of federalism is also included further in the paper (The Economist, 1993). Effectiveness / Failure The concept of subsidiarity is based on the presumption that the power of decision making vested in the European Union, should be limited to the decisions that are incapable of being made by the state government. The decentralization of authority in the context of economic policy, refers to the exercise of authority being extended by the EU to the member states, whereby the decisions involving the levy of taxes, redistribution of income, stabilizing the economy as well as regulating monopolies. The decision regarding the role of EU as well as the member states on the policies involving economic decisions could be framed in accordance with the principle of subsidiarity. If the decision making power is delegated to the local government, it would be more beneficial in the larger interest of the public at large, as the local government is well versed and better informed about the likes and preferences of its electors and hence could act in a more accountable manner. However, a centralized authority on the other hand, too has certain advantages to offer including cost cutting by joining forces. On a more important note, the centralization has the power and adequate infrastructure to address the externalities such as the effect of environmental rules in one country on the pollution in another. Matters such as these could very well be ignored in a decentralized environment. Although, conflicting views do exist on the issue such as the risk of social dumping whereby the governments seeking to attract investment might resort to tax cutting measures on capital or deterioration in the health / safety standards, the claims, however are largely misguided, which is evident from the fact that capital is internationally mobile and any taxes levied on capital would lead to a meager contribution to the governmental revenues, leading to meager gains / losses arising out of them. In technical terms, the applicability of the principle of subsidiarity is largely difficult and involves political connotation rather than a social one. The Subsidiarity principle, could however, be applied by the Community institutions such as the judiciary systems (Courts), in case of the emergence of significant institutional innovations or the in cases where the role of national parliaments is enhanced. In order to ensure successful and efficient governance, various combinations at different levels of authority could be exercised for the betterment and ease in attainment of the common objectives of the citizens at large. The principle of subsidiarity is and remains a useful device, in directing and focusing the attention towards the vertical dimension of the EU’s legitimacy deficit, as well as the significant impact of diversity, and its impact causing a setback to the European project (Syrpis P, 2004). Thus on the basis of the above discussion it could be concluded that although the principle of subsidiarity holds immense potential, they cannot be realized unless the minor “flaws” are tackled with, in a more efficient manner. This however, acts as a setback and challenges the very premise on which the subsidiarity principle is based. In conclusion, in order that the principle is labeled a “success”, it does have a long way to go. Federalism: The policies that a decentralized political arrangement has to offer, is found to be quite attractive among especially among the multi – ethnic nations including the likes of South Africa, Nigeria, Rwanda to name a few. The reason being, such political arrangements allow the people belonging to culturally diverse nations, the liberty to live a good public life as well as the freedom develop and maintain their own distinct communities within the context of a larger and more powerful political economy. With the emerging trends of globalization and industrialization whereby the nations such as United States of America as well as Australia have seen a large number of Asian as well as Hispanic immigrants settling in their countries, these two nations too, have come to acknowledge the decentralized modes of administration as well as policy formation, to be very convenient. The policy of decentralization has found large scale acceptance and recognition in countries with vast geographic distances, diverse economies, as well as wide spread regional disparities in preferences (Vause, 1995). This policy of decentralization, more popularly referred to as Federalism, is the division of sovereign authority among different levels of government. It is the most efficient tool, available at the disposal of the nations practicing federalism, to stabilize or create decentralized governmental structures. Given the various positive dimensions of the theory of federalism, what remains to be seen however, is the extent and magnitude to which the actual implementation of the federal arrangements could lead to the creation of a stable and credible decentralized political structure (Bermann, 1994). The federal arrangements hold immense potentialities in the form of securing the manifold advantages of decentralization by the systematic division of sovereign authority between a supreme national government and that of a semi – autonomous provincial government. The apparent success of the American federalism is a case in point. Several critics as well as soico – political scholars and observers are unanimous in their observations on the concept of federalism and the benefits that it has to offer, which leads us to ultimately believe that a decentralized policy shall usually end up with fewer dissatisfied citizens as opposed to those in a centralized political environment. For example, the decentralized form of governance has made it possible for the citizens of countries like Germany, France, Italy and Switzerland to enjoy the benefits a nationally provided service combined with a common market as well as the convenience of living in a relatively homogenous community. Such a decentralized community offers several benefits to the citizens such as the facility to make locational decisions which are highly influenced by the ethnic or linguistic considerations as well as the far reaching economic prospects. Such sorting on the basis of individual’s ethnicity as well as cultural diversity helps in supporting the provisions of the cultural goods and services associated with them. This further documents the fact that the decentralized institutions play a vital role in providing a valuable multi ethnic society wherein the citizens enjoy cultural freedom at the same time enjoying their multi ethnic diversity. The preferences of people of their ethnic or linguistic diversity, gives way to a relatively stable institutional structure. Although the ethnic communities alone may not be solely responsible / efficient enough for providing certain services, they, however, may play a substantial role in facilitating sufficient improvements over national arrangements, in order to have a better control over their part in the governmental decisions. In conclusion, the multi – ethnic or culturally diverse societies / communities hold a greater influence over resolving issues concerning the generic incentive problems associated with the process of decentralization in a distinctly productive manner (Bednar, Eskridge, Ferejohn, 1999). Comparative Analysis (Comparison between at least 3 countries) 1. Germany The German Federal Constitutional Court decided its first case under the revised version of article 72(2), in the month of October 2002, which read as follows: The Federation has in this field [concurrent legislative powers] the power to enact legislation if, and to the extent that, federal legislation is necessary— [a] in order to bring about living standards of equivalent standard within the Federation, or [b] for the maintenance of legal or economic unity in the interests of the whole state. An expression of the principle of subsidiarity could be clearly noticed in the said article, which, as a principle of domestic constitutional law, aims at being justified for those interested in federalism, meaning thereby, in order that the federal legislation be held of utmost competence, it has to be held valid in accordance to the principle of subsidiarity as mentioned in article 72(2) of the act, as well as fulfill the requirement of the subject matter competency. In the year 2002, a federal law, the Geriatric Care Act was challenged by the state government of Bavaria on the grounds of its incapacity in satisfying the requirements of the amended article in section 72(2), which incidentally turned out to be the first test of the amended provisions. A part of the Geriatric Care Act, was already held invalid previously, on the basis of the fact that it fell outside the range of the federal legislature. The above reasoning however, was distinct from the subsidiarity principle as mentioned in article 72(2) and hence could be applied in any federation which used a traditional subject – matter catalogue for dividing the governmental authority between the centre as well as the regions. Since fifty five years of the formation of German Basic Law, no law ever had been held invalid owing to non compliance with the subsidiarity principle. Thus it leads us to the question as to whether the principle of subsidiarity is practically amenable in accordance with the judicial enforcement. In order to make the principle of subsidiarity worthy of justice, a proposal which was considered (and later on rejected), was to delegate the power of enforcing article 72(2) on the Bunderstat – the upper house of the German federal legislature, whose members include the delegations of the state governments, rather than the court. But owing to the fact that the state governments are elected along party lines to the Bunderstat, conferring of such power on one house of the legislature would have resulted in a highly party centric decision on the issue of subsidiarity. In the case of the University Professors, which was held invalid on the grounds of the act being invalid as it was outside the range of the subject – matter catalogue. A similar judgment on identical grounds was passed in the later years, by the Federal Constitutional Court, whereby a law relating to the shop trading hours was held invalid on the grounds of it, falling outside the purview of the federal competence. In another incident, a case relating to dangerous dogs, was held invalid on the principal ground that they were not supported by article 72(2), thereby not falling into the jurisdiction of a uniform law for the whole country. It is thus a question of utmost significance to deal with such laws that fall outside the jurisdiction of the traditional subject – matter catalogue and attempt to add substantive elements of subsidiarity to them. The German experience in the laws studied in the above stated cases, leads us to acknowledge the potential effects of such an approach as well as the need to exercise adequate caution, whereby the laws related to the subject – matter catalogue have been held invalid merely on the grounds of the subsidiarity principle (Taylor, 2006). 2. USA The case of United States of America, discussed hereunder provides a good example of the successful application of the principle of subsidiarity. The country being a federalist republic, the entire authority over decision making on issues involving national security as well as other matters of strategic relevance is vested in the federal government. The matters involving the resolving of national issues or decision making at the national level is done by the federal government, while the state governments on the other hand exercise complete authority over the decision making involving “state level” issues and other matters that, the federal law, assigns or delegates to the state government, in accordance with the powers vested in them. Thus each state within the United States of America, exercises the decision making power, only on matters restricted to their particular states, whereby each state in the county governments addresses the issues and solves them in accordance with the local needs. The cities, in the country, however have their own “local government”, police etc, which in turn, are vested with the decision making authority restricted to their jurisdiction. The entire process and functioning of the “delegation of authority” functions in accordance with the checks and balances method, whereby there exists vertical checks and balances between the county as well as city governments, state governments and the federal government and horizontal checks and balances between the executive, legislative as well judiciary branches of the government. However the system did exhibit several flaws as was evident during the recent, infamous incident of the Katrina disaster – a lamentable failure in the exercise of application of the principle of subsidiarity, whereby, the respective authorities at the local, state as well as federal levels of authority were clueless regarding the exercise of powers vested in them, in the wake of the extent of such huge national calamity. The lower levels of authority as well as those in several other key decision making positions were perplexed over the issue of what to expect from the others at similar or higher / lower levels of authority. In the light of this situation, the proper application of the principle of subsidiarity by the constitution of the emerging European Union, through implementation of the checks and balances system between the European nations and the national governments, on the lines of the American system, is yet to be properly defined and finalized, to ensure its effective utilization and smooth functioning. This situation further helps in clarifying the stand of the government of the European Union, in refraining from its probable involvement in the internal affairs of the nations of the European Union thereby granting complete freedom of authority to facilitate easier and smoother decision making within the respective EU nations at the lowest possible levels, in matters concerning its internal affairs. The effective application of the principle of subsidiarity in the environmental policy, the first ever area of upward delegation of authority, is however, a matter of great significance. One of the major environmental problems faced by the world today is that of widespread pollution. Considering the severity of its negative impact on the planet, anticipating a common body, such as a “World Union”, to help fight it’s negative effects, whereby all the nations of the world would join hands to combat the such proposed threat to the planet, by sharing collective responsibility, wouldn’t seem like a far fetched idea. In the wake of the above stated arguments, the effects of implementation of the subsidiarity principle, for the attainment of sustainability in accordance with the current trends of human behavior (or national behavior for that matter), could be anticipated with sufficient clarity. Although the impact of application of the principle of subsidiarity alone, to eliminate the current socio – ecological mess, couldn’t be denied, but the widespread acceptance of the principle and its recognition among several levels of governance in all human institutions, is proof enough of its positive effects and ability to bring about significant change in the way we exercise and delegate decision making authority across all levels (Gutierrez, 2005). 3. Rwanda (Africa) The Subsidiarity Principle in Action: The Case of Rwanda Rwanda - a small country located at the heart of the Great Lakes Region of East Africa, shares its borders with Burundi to the south, the Democratic Republic of the Congo to the west, Uganda to the north and Tanzania to the east. With a population of 8.3 million growing at a steady rate of 2.9% per year, it is one of the highest in the world. The case study presented below bears a direct reference to the principle of Subsidiarity with a strong human significance as formulated on the basis of a Catholic Moral Doctrine. According to the philosophy “ every community establishes a pact with the superior one in order to safeguard its autonomy and consequently realize by itself the functions to which it has been appointed”(D’Orso, 2008) A clear and concise formulation of the said principle could be found in the encyclical written by the Pope Pius XI in the year 1931, that states the many things that were initially done by small associations cannot be done now but by the large associations. Thus, according to this principle the supreme authority of the State requires to delegate equal freedom to the subordinate groups to handling certain matters / concerns that are of relatively lesser importance. This shall ensure adequate time at the disposal of the higher authority to handle and manage cases of relative crucial significance, in observance of the subsidiary principle. Contrary to their European counterparts, the African states are still far away from implementing the principle of Subsidiarity in their governmental actions, with a majority of the African states still restricted to following an authoritarian style of politics that acts as a major setback in the path towards development and growth. As a result, such absolute autonomy deprives its citizens from sharing even the basic responsibilities concerning their future and they are left alone as mute spectators to the politics of autonomy. The African states need to realize the significance of sharing the responsibilities with the lower associations in order to facilitate better control and decision making that would ensure an overall growth of the country as a whole. Although the fact that Political development in African countries is a pre condition to achieve its developmental goals, the introduction and existence of democratic elections doesn’t warrant substantial growth unless the state willingly forgoes its hold on the complete authority over the decision making process. An equal participation on the part of the lower associations, in sync with the principle of Subsidiarity, shall ensure a better and brighter future for the African subcontinent. In conclusion, contrary to popular claims there does not exist any African destine of poverty. According to D’arso, “The current dramatic situation of the largest part of the African continent is, in fact, the consequence of mistakes committed in the past by local and foreign political classes”. Conclusion The functional approach to the principle of subsidiarity in the framework of the European representative democracy is a conscious attempt to devise an optimal solution of assigning regulatory and / or policy competences at various levels of the government. It is a framework to facilitate the highest possible level of welfare activities in the Union, in a fundamental sense whereby the preferences and needs of the citizens is sought to be fulfilled in the best possible manner. An efficient analysis of the cost – benefit model / framework, shall provide significant breakthrough in assessing the merits / demerits of the centralization / decentralization in the European Union. Although several issues sought to be addressed through the implementation of the principle of subsidiarity, overwhelmingly revolve around the attainment of economic objectives and means of the individual nations involved, the preferences relating to other issues of non – economic nature might or might not be partial towards the degree of centralization. The true test of subsidiarity, involves the influence of such preferences over the functionality of the principle. The paper has attempted to discuss various aspects of the principle of subsidiarity, its implications, applicability and impact on several nations including the European Union, United States of America as well as on African nations (Rwanda). The discussions presented in the paper, is an attempt to discuss the subsidiarity principle at length with a focus on its functional aspect, which according to the observations presented in various cases in the paper, is highly dependent on the diversity, difference in objectives of the government and public, as well as the interrelationship of the Commission as well as the member states (Ederveen, Pelkmans, 2006). The various cases cited in the paper, mainly discusses the impact of developments in the European integration on the preferences and / or desirability of further centralization. The principle of subsidiarity as discussed at length in the paper has immense potential of addressing the various issues involving the topics of common public interest. The paper is a sincere attempt to provide a logical framework and assist in addressing several issues involving the common interest of the states belonging to the European Union as well as its impact and functionality in applying the same for the facilitating smooth and better decision making process at various levels of governmental hierarchy. REFERENCES Barber N.W., (2005). Subsidiarity in the Draft Constitution, European Public Law, Volume 11, Issue 2. Syrpis P. (2004), In Defence of Subsidiarity, Oxford Journal of Legal Studies, Volume 24, No. 2, pp. 323 – 334. Taylor G. (2006). Germany: The Subsidiarity Principle, Oxford University Press and New York Univesity School of Law, Volume 4, pp. 115 – 130. Gutierrez L T. (2005). The Subsidiarity Principle, A Newsletter on the Socio – Ecological Impacts of Religious Patriarchy, Volume 1. Aroney N. (2007). Subsidiarity, Federalism and the Best Constitution, Law and Philosophy, 26: 161 – 228. Ederveen S, Pelkmans J. (2006), Principles of Subsidiarity, June 20, 2008. Available at: Read More