The organizing principle of the European community which decides the relationship between the center and periphery has been the theory of “subsidiarity” and “proportionality.” These two terms have long been codified in the Community treaty and have once again been reiterated in the Constitution Treaty.36
The principle of subsidiarity means that the Community should act within the limit of the powers conferred upon it. In areas of concurrent competences where the Community and member states share regulatory capacities, the Community should not act unless member states fail to take action. The principle of proportionality
36 Article I-11, Title III of the “Constitution Treaty.”
commands that any actions taken by the Community should never exceed what is necessary to achieve its objectives37 (Donahue &
Pollack, 2001: 73; Lazer & Schoenberger, 2001: 118; Young, 2002: 1636).
In a significant way, the principles of subsidiarity and proportionality were invented as a safeguard for member states against any encroachment from the center. Thus, a devolutionary, decentralized nature of the Community was made explicit (Bermann, 1994). There is another aspect of the theory inherent in subsidiarity and proportionality; that is, democracy. The EU treaty was even more specific in its embrace of the democratic process:
“decisions are to be taken as closely as possible to the citizens.”38 In other words, the insistence upon subsidiarity and proportionality is intended not to impede the center but rather to ensure the democratic process so that decisions are made from the bottom up. Here, perhaps not so surprisingly, the European emphasis on subsidiarity and proportionality sounds very similar to the American anti-federalist insistence upon dual sovereignty. The federal v. anti-federal debate was, after all, a debate concerning concrete democratic arrangements rather than power struggles between the federal and state governments (Kramer, 2004: 85-92).
If upheld strictly, the principles of subsidiarity and proportionality would considerably restrain the center’s capacity to carry out common policies in the EU. There are two ways to achieve such legislative restraint: political means and judicial enforcement. Politically, the Council (of Ministers) is the law- making body, and is represented by government ministers, it is in the best position to uphold the principle of subsidiarity and to guard the interests of member states. In the reality, however, the Council has not ensured the observation of “subsidiarity.” On the contrary, the Council has stood firmly as a Community institution in the exercise of its regulatory authority. The fact that a minister
37 Article 5 of “the Community Treaty.”
38 Article A of “the European Union Treaty.”
represents the interests of a member state does not mean that he or she will vote in a manner consistent with the principle of subsidiarity. Given a privileged role in a supranational organization, it becomes inevitable that the Council will more strongly assert the Community’s regulatory authority. The weakness of securing the subsidiarity principle, and the local interests underlying it, applies equally to the European Parliament and to the Commission (Bermann, 1994).
The other means to enforce the Community’s respect for subsidiarity is through the judiciary. The Court of Justice, however, has not stood firmly in its enforcement of the principle of subsidiarity and in its constraint on the exercise of the Community’s legislative authority. Rather, as we shall see in the following section, the judiciary has been the main force in strengthening the applicability and supremacy of the Community’s acts (Weatherill, 1995: 187-189). As the Court of Justice is empowered to ensure the interpretation and application of the Community’s treaties and laws39, it is understandable that the Community’s institutional interests have prevailed in the judicial process. Moreover, among all the jurisdictions, the Court is empowered to only hear cases brought by the Commission against member states concerning their failure to fulfill obligations.40 Yet, the reversed course of action has not yet been created which engenders some institutional bias in the Court’s assumption of a neutral role in policing the boundary between the center and the periphery. There have also been proposals concerning the proper mechanism for the due enforcement of “subsidiarity” and some are considering the allowance of member state courts to rule on the validity of the Communities measures—particularly on the principles of subsidiarity and proportionality (Bermann, 1994).
This kind of suggestion, however, will involve revising treaties, as judicial review of the Community’s acts are now vested exclusively
39 Article 234 of “the Community Treaty.”
40 Article 226 of “the Community Treaty.”
in the Court of Justice.41
In the American designed federal system, the organizing principle has been the theory of “dual sovereignty” as exemplified by the enumeration of federal powers and the Tenth Amendment.
The enumerated powers considerably constrain the regulatory authority of federal government, and the Tenth Amendment, which reserves residual powers to the states, reinforces this direction. At the first glance, the US theory of “dual sovereignty”
looks similar to the European principle of “subsidiarity.” But, while they are not unrelated, the two principles are not the same (Bermann, 1994). The theory of dual sovereignty, as it applies to the US constitution, empowers the national center more than it does the peripheries.
First, it was the “Necessary and Proper Clause” of the enumerated powers, which opened the possibility of establishing national institutions like a national bank, or to enact national programs.42 Second, as we explained earlier, the vagueness of the language in enumerated powers and the yielded discretionary nature, such as “Interstate Commerce Clause,” has permitted the emergence of “regulatory federalism.” From this perspective, the initial resistance by the Supreme Court was doomed to fail. Finally, and perhaps most importantly, it is “the duality” that not only recognizes states sovereignty but also creates the independent, separate, national sovereignty that empowers the American federal
41 Issues concerning the interpretation of the Community’s treaties, the validity and interpretation of acts are first raised before courts of member states. If considered as necessary, states courts may request the Court of Justice for a ruling. See Section 2, Article 234 of “the Community Treaty.” Furthermore, if such an issue has no judicial remedy under national law in a member states, it becomes compulsory for states courts to bring such matter to the Court of Justice. See Section 3, Article 234 of “the Community Treaty.”
42 The European Central Bank has a direct enabling clause in the Article 8 of
“the Community Treaty”, while there is not direct mandate in the Congressional enumerated powers to establish a national bank in the US Constitution. It was interpreted that way in a 1819 Supreme Court Decision, McCulloch v. Sate of Maryland, 17 US 316 (1819).
government and differs from the European principle of subsidiarity.
The independent sovereignty of the Union was made explicit in federalist papers, founding documents, and more importantly, the decisions of the Supreme Court. In McCulloch v. State of Maryland for example, it was declared that: “The government of the Union, is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. ……The nation, on those subjects on which it can act, must necessarily bind its component parts.”43 Thus, the concept of dual sovereignty denotes an independent capacity of federal government to act, though this does not exist without limits (Bermann, 1994; Young, 2002: 1646-1647).
To put the comparison in more concrete terms, the principle of subsidiarity creates more space for peripheries, while the theory of dual sovereignty leaves more room for the center. In reality, however, reversals or flows between the two sides are not at all rare. While regulatory federalism developed after the New Deal shows a clear preference toward the national center, the Supreme Court has recently been overseeing its reversal. In the same vein, despite the principle of “subsidiarity,” the European Community has been uncompromising in its attempts to strengthen the center’s regulatory authority through the Court of Justice. To strike a balance, it was little wonder that the respect for local authority and the principle of subsidiarity and proportionality were re-emphasized when the EU was formed and its mission subsequently expanded.44
Besides the principles of subsidiarity and proportionality in the EU and dual sovereignty in US, both also observe the supremacy of the Union or federal laws over the laws of member states or states.
Yet, because the adoption of supremacy, particularly in the EU, has a great deal to do with judicial decisions, this issue will be dealt
43 17 US 316, 404-405, 406.
44 Section 2, Article 2 of “the European Union Treaty.”
with comprehensively in the next section: the enforcement mechanism. It should be noted here, however, that while the supremacy of Union laws in the EU were established via judicial decisions, in the Constitutional Treaty it has been codified and made explicit.45