Discussing Subsidiarity in Terms of Justification: Some Practical Issues of the EU Legislative Process

Oxana Pimenova

doi:10.22151/politikon.49.3

Authors

Oxana Pimenova University of Saskatchewan

DOI:

https://doi.org/10.22151/politikon.49.3

Keywords:

Consensus, Deliberation, EU Legislative Process, ‘Green Card’ Procedure, Inter-institutional Dialogue, Subsidiarity Control Mechanism, ‘Yellow Card’ Procedure

Abstract

This article attempts to study the inter-institutional dimension of the practical implementation of the subsidiarity principle in the EU legislative process. The main research question is whether the subsidiarity principle could be a real communicative tool in the EU’s multi-level regulation policy used to seek consensus between EU institutions and national parliaments on the justification of an appropriate level for EU actions (subsidiarity justification). The short answer is ‘yes’. Through the content analysis of the published documents and with the help of the theory of deliberation, the author argues for a subsidiarity justification procedure occurring at the beginning of each instance of the EU legislative process to provide an inter-institutional setting to move away from confirming (one-way) to deliberative (two-way) reasoning over the issue of potential subsidiarity violation in the EU legislative process.

Author Biography

Oxana Pimenova, University of Saskatchewan

Oxana Pimenova is a Dr. in Constitutional Law (Russia) and a Ph.D. Candidate in Public Policy at the University of Saskatchewan (Canada). For the last 20 years, her academic research and professional activities have been focused on the public sector. Since graduating from the Law Department of the Dagestan State University (Russia), she has published more than 40 peer-reviewed articles in leading international journals across areas of comparative politics and multilevel governance, including two peer-reviewed monographs. Oxana was employed with the Russian government and oversaw consultations between the regional and national parliaments/chambers in the Russian legislative process on the issues of shared responsibilities.

References

Anderson, Elizabeth. 2006. “The Epistemology of Democracy.” Episteme: A Journal of Social Epistemology 3 (1–2): 8–6. https://doi.org/10.3366/epi.2006.3.1-2.8.

Bickerton, Christopher, Dermot Hodson, and Uwe Puetter. 2015. The New Intergovernmentalism. States and Supranational Actors in the Post-Maastricht Era. Oxford: Oxford University Press. https://doi.org/10.1093/acprof:oso/9780198703617.001.0001.

Brack, Nathalie, and Olivier Costa. 2018. “Democracy in Parliament vs. Democracy through Parliament? Defining the Rules of the Game in the European Parliament.” The Journal of Legislative Studies 24 (1): 51-71. https://doi.org/10.1080/13572334.2018.1444625.

Brouillet, Eugenie. 2011. “Canadian Federalism and the Principle of Subsidiarity: Should We Open Pandora’s Box?” Supreme Court Law Review 54: 601–632.

Commission of the European Communities. 1993. Commission Report to the European Council on the Adaptation of Community Legislation to the Subsidiarity Principle. COM (93) 545 final.

Constantin, Simona. 2008. “Rethinking Subsidiarity and the Balance of Powers in the EU in Light of the Lisbon Treaty and Beyond.” Croatian Yearbook of European Law and Policy 4: 152 – 179. https://doi.org/10.3935/cyelp.04.2008.57.

Cooper, Ian. 2006. “The Watchdogs of Subsidiarity: National Parliaments and the Logic of Arguing in the EU.” Journal of Common Market Studies 44 (2): 281 – 304. https://doi.org/10.1111/j.1468-5965.2006.00623.x

Cooper, Ian. 2012. “A ‘Virtual Third Chamber’ for the European Union? National Parliaments after the Treaty of Lisbon.” West European Politics 35 (3): 441 – 461. https://doi.org/10.1080/01402382.2012.665735.

Cooper, Ian. 2017. “Is the Early Warning Mechanism a Legal or a Political Procedure? Three Questions and a Typology.” In National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon: The Impact of the Early Warning Mechanism, edited by A. J. Cornell and M. Goldoni, 39–63. Oxford: Hart Publishing.

Cooter, Robert. 2002. The Strategic Constitution. Princeton: Princeton University Press.

Craig, Paul. 2012. “Subsidiarity: A Political and Legal Analysis.” Journal of Common Market Studies 50 (1): 72 – 87. https://doi.org/10.1111/j.1468-5965.2011.02228.x.

Davies, Gareth. 2006. “Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time.” Common Market Law Review 43 (1), 63 – 84.

Dryzek, John. 2015. “Democratic Agents of Justice.” Journal of Political Philosophy 23 (4): 361-84. https://doi.org/10.1111/jopp.12053.

Estella, Antonio. 2002. The EU Principle of Subsidiarity and its Critique. Oxford: Oxford University Press.

European Commission. 2013. Annual Report 2012 on Subsidiarity and Proportionality. COM (2013) 566 final.

European Commission. 2014. Annual Report 2013 on Subsidiarity and Proportionality. COM (2014) 506 final.

European Commission. 2016. Annual Report 2015 on Subsidiarity and Proportionality. COM (2016) 469 final.

European Union. 2018. Report on the Task Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’. Accessed June 13, 2021. https://ec.europa.eu/commission/sites/beta-political/files/report-task-force-subsidiarity-proportionality-doing-less-more-efficiently_1.pdf.

Fabbrini, Federico. 2014. “The Euro-Crisis and the Courts: Judicial Review and the Political Process in Comparative Perspective.” Berkeley Journal of International Law 32 (1), 64 – 123.

Fabbrini, Federico. 2016. The Principle of Subsidiarity (iCourts Working Paper No. 66). https://doi.org/10.2139/ssrn.2781845.

Fabbrini, Federico, and Katarzyna Granat. 2013. “‘Yellow Card, but No Foul’: the Role of the National Parliaments under the Subsidiarity Protocol and the Commission Proposal for an EU Regulation on the Right to Strike.” Common Market Law Review 50 (1): 115 – 143.

Fasone, Cristina, and Diane Fromage. 2016. “From Veto Players to Agenda-setters? National Parliaments and Their ‘Green Card’ to the European Commission.” Maastricht Journal of European and Comparative law 23 (2): 294 – 316. https://doi.org/10.1177/1023263X1602300205.

Fearon, James. 1998. “Deliberation as Discussion.” In Deliberative Democracy, edited by Jon Elster, 44–68. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781139175005.004.

Fischer, Frank. 2007. “Deliberative Policy Analysis as Practical Reason: Integrating Empirical and Normative Arguments.” In Routledge Handbook of Public Policy Analysis: Theory, Politics, and Methods, edited by Frank Fischer, Gerald Miller, and Mara Sidney. Boca Raton: CRC Press. https://doi.org/10.1201/9781420017007.pt5.

Golub, Jonathan. 1996. “Sovereignty and Subsidiarity in EU Environmental Policy.” Political Studies 44 (4): 686–703. https://doi.org/10.1111/j.1467-9248.1996.tb01749.x.

Gutmann, Amy, and Dennis Thompson. 2003. “Deliberative Democracy Beyond Process.” In Debating Deliberative Democracy, edited by James Fishkin and Peter Laslett, 31–53. Oxford: Blackwell Publishing. https://doi.org/10.1002/9780470690734.ch2.

Kanra, Bora. 2012. “Binary deliberation: The role of social learning in divided societies.” Journal of Public Deliberation 8 (1): 1. https://doi.org/10.16997/jdd.123.

Kersbergen, Van, and Bertjan Verbeek. 2007. “The Politics of International Norms: Subsidiarity and the Imperfect Competence Regime of the European Union.” European Journal of International Relations 13 (2): 217 – 238. https://doi.org/10.1177/1354066107076955.

Kumm, Mattias. 2006. “Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union.” European Law Journal 12 (4): 503 – 533. https://doi.org/10.1111/j.1468-0386.2006.00330.x.

Landemore, Helene. 1976. Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many. Princeton and Oxford: Princeton University Press.

Lindblom, Charles. 1959. “The Science of ‘Muddling Through.” Public Administration Review 19 (2): 79 – 88. https://doi.org/10.2307/973677.

Manin, Bernard. 1987. “On Legitimacy and Political Deliberation.” Political Theory 15 (3): 338-368.

Manin, Bernard. 2005. Democratic Deliberation: Why We Should Promote Debate rather than Discussion. Paper presented at the Program in Ethics and Public Affairs Seminar, Princeton University. https://doi.org/10.1177/0090591787015003005.

Mansbridge, Jane, James Bohman, Sariya Chambers, Thomas Christiano, Archon Fung, John Parkinson, and Mark Warren. 2012. “A Systemic Approach to Deliberative Democracy.” In Deliberative Systems: Deliberative Democracy at the Large Scale: Theories of Institutional Design, edited by John Parkinson and Jane Mansbridge, 1–26. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781139178914.002.

Norman, Andy. 2016. “Why We Reason: Intention Alignment and the Genesis of Human Rationality.” Biology and Philosophy 31 (5): 681–704. https://doi.org/10.1007/s10539-016-9532-4.

Pimenova, Oxana. 2016. “Subsidiarity as a ‘Regulation Principle’ in the EU.” Theory and Practice of Legislation 4 (3): 381–398. https://doi.org/10.1080/20508840.2016.1290570.

Pimenova, Oxana. 2019. “National Parliaments in Subsidiarity Review: from Guardians to Partners.” Statute Law Review 40 (3): 287-299. https://doi.org/10.1093/slr/hmy001.

Popelier, Patricia. 2011. “Governance and Better Regulation: Dealing with the Legitimacy Paradox.” European Public Law 17 (3): 555 – 568.

Risse, Thomas. 2000. “Let’s Argue!’: Communicative Action in World Politics.” International Organization 54 (1): 1–37. https://doi.org/10.1162/002081800551109.

Schout, Adriaan, and Jaap Sleifer. 2014. A Public Administration Take on Legitimacy: Better Regulation as Multilevel Governance Challenge. Cambridge: Cambridge University Press.

Schütze, Robert. 2009. “Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism?” Cambridge Law Journal 68 (3): 525 – 536. https://doi:10.1017/S0008197309990183.

Terrinha, Heleno. 2017. The legisprudential role of national parliaments in the European Union. Briefing no. PE 583.133, European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs.

Thompson, Dennis. 2008. “Deliberative Democratic Theory and Empirical Political Science.” Annual Review of Political Science 11: 497-520. https://doi.org/10.1146/annurev.polisci.11.081306.070555.

Toth, Antonio. 1992. “The Principle of Subsidiarity in the Maastricht Treaty.” Common Market Law Review 29 (6): 1079 – 1105.

UK Government. 2014. Review of the Balance of Competences between the United Kingdom and the European Union: Subsidiarity and Proportionality. Report, HM Government. Accessed June 16, 2021. http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388852/BoCSubAndPro_acc.pdf.

Weatherill, Stephen. 2005. “Finding a Role for the Regions in Checking the EU’s Competence.” In The Role of Regions and Sub-National Actors in Europe (Essays in European Law), edited by Stephen Weatherill and Ulf Bernitz, 131 – 152. Oxford: Hart Publishing.