The abuse, the EU can only establish necessary legislation

The
European Union’s (EU) functions are managed by conferral. By granting EU
competences1,
it seems indispensable. Whereas, exercising
EU competences is controlled by subsidiarity and proportionality2.
Theoretically, these principles benefit the EU’s legislative competence, yet,
conferral and subsidiarity are applied incorrectly.

 

Firstly,
conferral enables the EU to establish treaties for Member States to follow and
Member States to allocate EU’s legislative competences3.
Yet, it is impractical for the EU to wait for the Member State’s’ legislative
approval before enacting laws as this would be time-consuming4.
Teleological interpretation may resolve this5,
by allowing the EU to adapt legislative competences6.
However, interpretations can be manipulated and stray from the correct usage of
conferral. Evidently, in UK v Council7,
the UK claimed that the Union legislator exceeded powers as there was no link
to health and safety8.
However, like the historical standing, the Court backed the Union9.
Yet, perhaps this is the superior principle by granting legislative
competences, merely executed by subsidiarity and proportionality10.

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Secondly,
subsidiarity instructs the EU only to act if Member States cannot meet the Treaty
objectives11.
Subsidiarity protects Member States’ identity12,
and lets them submit legislative proposals13.
However, the Union enforces subsidiarity14,
contradicting the principle’s purpose of Member State autonomy15.
Indeed, the Laeken Declaration16
allowed National Parliaments to enforce subsidiarity, enabling them to rule
proposals as non-compliant17.
Yet, the Court of Justice has never declared non-compliancy. Imperial Tobacco18
highlights the problematical subsidiarity legislative discretion. Estella
argues that subsidiarity “fails to meet Member States'”19
demands. This is mainly due to the Court’s biased application20.
Thus, perhaps subsidiarity is the weakest principle.

 

Moreover,
to avoid power abuse, the EU can only establish necessary legislation to
achieve Treaty objectives21.
Schwarze defines proportionality as “the most important principle”,22
perhaps due to its flexibility/enforcing human rights23.
Proportionality balances competing principles,24
and individual rights and public policy, implemented in law-making25.
However, Member States can adapt the meaning of “necessary”26
to suit their interests. In both Commission v UK27
and Spain v Council28,
the government were at fault for lack of exercised proportionality29.
Although there are some procedural requirements for rational statements30,
there may be potential various interpretations of “necessary”31. 

Clearly,
proportionality and subsidiarity “interlock”32,
with legislative competences assigned to the Member States. Then,
proportionality limits them to rationally enact laws33.
Proportionality balances individual’s rights and public policy34.
Subsidiarity delegates legislative powers to the Member States; proportionality
seems to enable individual people’s rights to be more equal to public policy
than at EU level, where there is a greater focus on international
relations/issues35.
At Member State level, individuals have a larger voice, which may only be
idealistic without subsidiarity. Adhering to
proportionality, it may be necessary for the EU community to delegate
legislative competence to the Member States, to uphold democratic values and
share legal powers.

Seemingly, conferral and proportionality “balance the …
opposing forces of … centralisation and decentralisation”, preserving
federal values (Kumm).36 Indeed, “the Member
States can only exercise shared competence” 37 if the EU has allocated legal powers. Conferral centralises the Union’s competences as Member States
assign legislative powers back to the EU38. Subsidiarity decentralises the EU’s legal powers by
delegating to local government. Subsidiarity enforces proportionality as decentralisation
appears to allow the fulfilment of democratic and necessary EU Treaty
objectives. Article 10.3 TEU “provides that citizens should participate in
the (Union’s) democratic life”39, allowing “direct
participation in .. the EU decision-making process” 40. This exercises the
Treaty of Lisbon’s participatory democracy41. Thus, conferral and
subsidiarity are linked in centralisation/decentralisation balancing42, according to EU
principles.

Overall, conferral may be the leading principle in shaping legislative
competences for it allocates legislative powers to EU government43, where the main
legislative process occurs. Whereas, subsidiarity and proportionality direct
the application of powers44. Thus, the three
principles work together to limit the EU’s power so it does not act
excessively. Arguably, proportionality is the least controversial principle45, due to being moral and
democratic46. The main issue is the
lacking enforcement, rather than a faulty principle. 

1Author unknown, Analysis
of Development Co-operation, ‘The Lisbon Treaty: Article 5’, , accessed 03/12/17

2 Author unknown, Analysis
of Development Co-operation, ‘The Lisbon Treaty: Article 5’, , accessed 03/12/17

3Author unknown, Analysis
of Development Co-operation, ‘The Lisbon Treaty: Article 5’, , accessed 03/12/17

4 Anthony
Arnull, Damien Chambers, The Oxford
Handbook of European Union Law, (Oxford University Press, First Edition,
2015), , accessed 06/12/17, pg 77

5 Anthony
Arnull, Damien Chambers, The Oxford
Handbook of European Union Law, (Oxford University Press, First Edition,
2015), , accessed 06/12/17, pg 77

6 Anthony
Arnull, Damien Chambers, The Oxford
Handbook of European Union Law, (Oxford University Press, First Edition,
2015), , accessed 06/12/17, pg 77

7 United Kingdom of Great
Britain and Northern Ireland v Council 1996, Case 84/94

8 Anthony Arnull, Damien Chambers, The
Oxford Handbook of European Union Law, (Oxford University Press, First
Edition, 2015), , accessed 06/12/17, pg 78

9 Anthony
Arnull, Damien Chambers, The Oxford Handbook of European Union Law, (Oxford University Press, First Edition,, 2015), , accessed 06/12/17, pg 77

10Author unknown, ‘The Lisbon Treaty: Article 5’, , (Analysis of Development Co-operation), accessed 03/12/17

11Author unknown, ‘Review
of the balance of Competences between the United Kingdom and the European Union
Subsidiarity and Proportionality’, (HM Government,
December 2014), , December),
accessed 05/12/17, pg 17

12 Rosa Raffaelli, Fact
Sheets on the European Union, ‘The Principle of
Subsidiarity’, (Europarl, October 2017), , accessed 06/12/17

13 Author unknown, , (Europedia, 2011),
accessed 09/12/17

14 Phil Syrpis, In Defence of
Subsidiarity: The EU Principle of
Subsidiarity and Its Critique by Antonio Estella, (Oxford Legal Journal,
Volume 24, No 2, 2004), , accessed 06/12/17,
pg 329

15 Rosa Raffaelli, Fact
Sheets on the European Union, Europarl, ‘The Principle of
Subsidiarity’, (Europarl, October 2017), , accessed 06/12/17

16 Laeken Declaration, 2001

17 Phil Syrpis, In Defence of
Subsidiarity: The EU Principle of
Subsidiarity and Its Critique by Antonio Estella, (Oxford Legal Journal,
Volume 24, No 2, 2004), , accessed 06/12/17,
pg 329

18 R v Secretary of State
ex parte BAT and Imperial Tobacco, C-491/01, 2002

19 Phil Syrpis, In Defence of
Subsidiarity: The EU Principle of
Subsidiarity and Its Critique by Antonio Estella, (Oxford Legal Journal,
Volume 24, No 2, 2004), , accessed 06/12/17,
pg 326

20 Stephen Weatherill, EU
Consumer Law and Policy, (Edward Elgar Publishing Ltd, 2013) ,accessed 06/12/17, pg 22

21 Author unknown, ‘Proportionality
Principle’, (Europa), , accessed 05/12/17

22 Wolf Sauter, ‘Proportionality
in EU Law: a balancing act?’, (Nederlandse Zorgautoriteit, 2013),

, accessed 03/12/17,
pg 2

23Alan Brady, Proportionality and Deference under the UK
Human Rights Act, (Cambridge University Press, 2012), ,
accessed 08/12/17, pg 61

24Tor-Inge Harbo The Function of
Proportionality Analysis in European Law: Nijhoff
Studies in EU Law,
(Brill, 2015), , accessed 05/12/17,
pg 212

25 Wolf Sauter,
‘Proportionality in EU Law: a balancing act?’, (Nederlandse Zorgautoriteit, 2013),

, accessed 03/12/17,
pg 1

26Author unknown, ‘The
Lisbon Treaty: Article 5’, (Analysis of Development Co-operation),, accessed 03/12/17

27 Commission v United
Kingdom (Judgment) Commission of the European Communities v United Kingdom
Kingdom of Great Britain and Northern Ireland C-40/82, (1982) EUECJ

28 Spain v Council, C-310/04

29 Elspeth Berry, Matthew
J. Homewood, Barbara Bogusz, Complete EU
Law, (Oxford University Press, Third Edition), 2017

30 Wolf Sauter,
‘Proportionality in EU Law: a balancing act?’,

, (Nederlandse
Zorgautoriteit, 2013), accessed 03/12/17, pg 14

31 Author unknown, ‘Proportionality
Principle’, (Europa), , accessed 05/12/17

32 Author unknown, (HM Government,
December 2014), ‘Review of the balance of Competences between
the United Kingdom and the European Union Subsidiarity and Proportionality’,
, accessed 05/12/17,
pg 46

33 Author unknown, ‘Proportionality
Principle’, (Europa), , accessed 05/12/17

34 Wolf Sauter,
‘Proportionality in EU Law: a balancing act?’,

, (Nederlandse
Zorgautoriteit, 2013), accessed 03/12/17, pg 1

35 Author unknown, ‘The
EU’s International Roles’, (European Union External Action, June 2016), , accessed 07/12/17

36Katherine Shaw, LLB
(Hons) (Exeter), (June 2015),  ‘Anchoring
a subsidiarity and proportionality review by the Court of Justice of the
European Union in the context of residency rights and shared competence: a
legal, doctrinal and critical analysis’,

,
accessed 06/12/17, pg 103

37Katherine Shaw, LLB
(Hons) (Exeter), (June 2015),  ‘Anchoring
a subsidiarity and proportionality review by the Court of Justice of the
European Union in the context of residency rights and shared competence: a
legal, doctrinal and critical analysis’,

,
accessed 06/12/17, pg 102

38Katherine Shaw, LLB
(Hons) (Exeter), (June 2015), ‘Anchoring a subsidiarity
and proportionality review by the Court of Justice of the European Union in the
context of residency rights and shared competence: a legal, doctrinal and
critical analysis’,

,
accessed 06/12/17, pg 103

39 Juan Mayoral, ‘Democratic
Improvements in the European Union in the Lisbon Treaty’,
(European University Institute, 2011),
,
accessed 07/12/17, pg 4

40 Juan Mayoral, ‘Democratic
Improvements in the European Union in the Lisbon Treaty’,
(European University Institute, 2011), ,
accessed 07/12/17, pg 4

41 Petr Novak, Rosa
Raffaelli, Fact Sheets on the European Union, (Europarl, October 2017), ‘The
Principle of Subsidiarity’, , accessed 09/12/17

42Katherine Shaw, LLB
(Hons) (Exeter), (June 2015), ‘Anchoring a subsidiarity
and proportionality review by the Court of Justice of the European Union in the
context of residency rights and shared competence: a legal, doctrinal and
critical analysis’,

accessible
at: http://bura.brunel.ac.uk/bitstream/2438/11629/1/FulltextThesis.pdf,
accessed 06/12/17, pg 103

43Author unknown,
(Analysis of Development Co-operation), ‘The Lisbon Treaty: Article 5’, , accessed 03/12/17

44 Author unknown,
(Analysis of Development Co-operation), ‘The Lisbon Treaty: Article 5’, , accessed 03/12/17

45 Author unknown, (HM
Government, December 2014), ‘Review of the balance of
Competences between the United Kingdom and the European Union Subsidiarity and
Proportionality’, , accessed 05/12/17,
pg 17

46Alan Brady, Proportionality and Deference under the UK
Human Rights Act, (Cambridge University Press, 2012), , accessed 08/12/17,
pg 61