What happened to EU subsidiarity?

This article is published in collaboration with Project Syndicate.

As the end of 2015 approaches, many people may be thinking of their New Year’s resolutions for the coming year: to eat healthier, drink less, and go to the gym more often. More likely than not, however, a few weeks later, they will still be overeating, drinking too much, and wondering when they last saw their gym card.

These self-control issues, it turns out, are not unique to people. Organizations and governments can suffer from similar lapses in self-discipline. Consider, for example, the European Union’s approach to subsidiarity, the principle that decisions should be left to the most local form of government able to handle them. For more than 20 years, the EU has promised to adhere to it. But no sooner have such pledges been made than they have been broken.

The principle of subsidiarity – derived from the Latin word meaning “to aid” – was enshrined in 1992 in the EU’s founding treaties. The principle holds that assistance should be given only when and as required. Those closest to the issues know them best and are best-placed to address them. Higher levels of government, including the EU, should intervene only when it is truly necessary.

In the abstract, subsidiarity has been remarkably popular. In 1989, Jacques Delors, the eighth president of the European Commission, described it as a way to reconcile the need for “a European power capable of tackling the problems of our age” with “the absolute necessity to preserve our roots in the shape of our nations and regions.” Simply put, he said, the principle means that “we [should] never entrust to a bigger unit anything that is best done by a smaller one.”

Delors’ successors were similarly enthusiastic about the principle – at least in their speeches. Jacques Santer warned against “harmonizing every last nut or bolt.” Romano Prodi cautioned that “the Union should not try to involve itself in everything.” And José Manuel Barroso called subsidiarity “a fundamental democratic principle,” because “an ever closer union among the citizens of Europe demands that decisions are taken as openly as possible and as closely to the people as possible.”

And yet, Europe’s leaders have been equally clear that the principle remains to be implemented in practice. “More attention needs to be paid to the subsidiarity principle,” says German Chancellor Angela Merkel. “We have to get to the point that what is better done locally or regionally is actually decided at that level,” says EU Parliament President Martin Schulz. “Since the Maastricht Treaty, we have been talking about the correct application of the subsidiarity principle,” says European Commission President Jean-Claude Juncker. “What we are doing, however, is not sufficient. Our speeches last longer than our efforts.”

Europe’s problem is one of self-control. Its leaders know that subsidiarity is vital for the EU’s long-term legitimacy and stability; and yet their short-term desire to drive the agenda toward ever more standardization and harmonization seems too strong to resist.

As a result, subsidiarity has become something akin to a marketing gimmick: aspirational and above all discretionary – good for interviews with Sunday papers, but quickly discarded when it is inconvenient. Unless someone challenges this status quo, it is likely to persist.

British Prime Minister David Cameron is one candidate. He hit the nail on the head in his famous 2013 speech, in which he observed that, “People feel that the EU is heading in a direction that they never signed up to. They resent the interference in our national life by what they see as unnecessary rules and regulation. And they wonder what the point of it all is.”

Cameron’s speech was criticized as anti-European. But what he said is similar to what other EU leaders have proclaimed. What is different is that Cameron is demanding real change. However, by framing the debate in terms of renegotiating Europe’s treaties, Cameron has all but ensured that his effort will fail. As Donald Tusk, President of the European Council, put it, “Treaty change is close to mission impossible today.”

A more plausible agent of change is the European Court of Justice. To be sure, the ECJ has yet to strike down a piece of legislation on grounds of subsidiarity. But it could. The 2007 Treaty of Lisbon limits the EU’s authority to what “cannot be sufficiently achieved by the Member States, either at central level or at regional and local level.” The ECJ should clarify that the burden of proof lies with the EU, which must explain why local action would be insufficient.

As with New Year’s resolutions, acts of self-control are signs not of weakness, but of strength. Saving the EU will require it to relinquish some of the power it has seized from its member states. In order for democracy to thrive and for the EU to survive, the principle of subsidiarity must finally be put at the center of European policy.

Publication does not imply endorsement of views by the World Economic Forum.

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Author: Till Olbrich, in-house counsel at Philip Morris International, has practiced EU law at law firms in Germany and the United States. Rudolf Rayle, in-house counsel at Philip Morris International, has practiced EU law at law firms in Germany and the United States.

Image: European Union flags fly outside the European Commission headquarters. REUTERS/Thierry Roge.