Opinion of the Committee of the Regions on the 'Principle of subsidiarity 'Developing a genuine culture of subsidiarity. An appeal by the Committee of the Regions''
Date: 1999-03-11
Institutions: European Committee of the Regions
Subjects: EU competence, principle of subsidiarity

14.7.1999

EN

Official Journal of the European Communities

C 198/73

Opinion of the Committee of the Regions on the ‘Principle of subsidiarity “Developing a genuine
culture of subsidiarity. An appeal by the Committee of the Regions”’

THE COMMITTEE OF THE REGIONS,

(1999/C 198/14)

having regard to the conclusions of the Vienna European Council of 11 and 12 December 1998 whereby
future ‘Better law-making’ reports of the Commission should be presented in good time to allow for
thorough discussion in the various institutions, including the Committee of the Regions;

having regard to the European Parliament’s resolution of 22 October 1998 for the meeting of Heads of
State and of Government in October 1998, whereby the European Parliament undertakes to engage in
political dialogue and close cooperation with the relevant regional bodies (depending on the specific
constitutional position of each Member State) to discuss implementation of the principle of subsidiarity;

having regard to the decision taken by the COR’s Bureau of 15 July 1998 to draw up an opinion on this
subject, in accordance with the fourth paragraph of Article 198c of the Treaty establishing the European
Community, and to ask the Commission for Institutional Affairs to carry out the preparatory work;

having regard to its previous comments on the subsidiarity principle, particularly the COR resolution of
20 November 1997 (CdR 305/97 fin) (1);

having regard to the draft opinion adopted by the Commission for Institutional Affairs on 1 February
1999 (CdR 302/98 rev. 2) (Rapporteurs: Mr Delebarre and Mr Stoiber);

whereas the comprehensive application of the principle of subsidiarity in an expanding European Union
will have an even more important role than that assigned to it under the Amsterdam Treaty,

has adopted at its 28th plenary session on 10 and 11 March 1999 (meeting of 11 March) the following
opinion.

1.

Introduction

1.1. Subsidiarity and closeness to the citizen: the key to the Europe

of the future

1.1.1.
Europe has achieved major intellectual, cultural and
economic successes, building on the experiences of past
centuries. Diversity is the essence of what is European. It
manifests itself in towns and local districts, regions, nations
and states. While working closely together, the European
Union must recognize and build upon the diversity of cultures
and traditions so that innovative solutions to the rapidly
changing world can be developed. This can be achieved by a
clear definition of the subsidiarity principle which involves
regional and local government. This will develop a dynamism
in Europe that will help equip it for the challenges of the next
century and meet the rigours of global competition.

This diversity has led to a dynamism which has enriched
Europe not only culturally but also economically. Such
dynamism must be kept alive and productive in the interests

(1) OJ C 64, of 27.2.1998, p. 98.

of Europe and must not be dampened down any more than is
necessary. Europe will only survive in the global competition
between cultures if its regions preserve their individual charac-
teristics and cultural
identity. Distinct cultures have to be
preserved and understanding between them has to be pro-
moted to ensure that all cultures can express themselves freely.

There is a growing recognition that effective govern-
1.1.2.
ment is created not by levels of government competing with
each other. These levels of government must work closely
together to ensure that effective decisions are taken at each
level to ensure a coordinated approach to solving today’s
problems. Subsidiarity needs to be closely linked to concepts
such as multi-layer democracy. Fruitful competition derives
from diversity.

1.1.3.
There is no doubt that European integration has been
the outstanding achievement of the nations and peoples of
Europe in the latter part of the 20th century. On the eve of the
21st century the EU is still faced with a number of major
tasks of historic importance: enlargement of the Union; the
establishment of political, social, economic and monetary
union; consolidation of the EU’s position as a global player;
and furtherance of European economic growth, which consti-
tutes the basis for job creation.

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The structures put in place forty years ago to govern the Union
are no longer adequate for the size and tasks of the present
Union. A review of
the Union’s functioning as well as
institutional reforms are therefore necessary. Democratic auth-
orities at different
levels — local, regional, national and
European — must respond to this fast-changing world.
Technological change, the information and communications
revolution, globalization and the integration of markets, and
the introduction of a European single currency, are all elements
of an increasingly interdependent world. This means that there
is a growing range of issues and matters which cannot be dealt
with solely within the boundaries of individual nation states.
Nor can many of these issues just be left to the market. There
are a wide range of issues that have a European dimension, e.g.
employment, innovation, environment, public health etc. as
well as others where the European Union must act more
effectively on the international stage. The principle of subsidi-
arity (in the sense of proximity, with decisions taken as close
to grassroots level as possible, thereby ensuring that tasks can
be performed to optimum effect) serves as a political guideline
in this reform process.

1.1.4.
Ever since its foundation in 1994, the youngest of
the Community institutions, the Committee of the Regions,
has unfailingly committed itself to a Europe supported by
ordinary citizens, local districts, regions and Member States.
The Committee of the Regions welcomes the initiative of the
European Council taken at the Cardiff Summit in June 1998
‘to bring the Union closer to people.’ As custodian of the
subsidiarity principle the COR strongly supports efforts to
create strong but lean and efficient European institutions that
focus on the tasks that cannot be carried out by other tiers of
government directly accountable to the public. The principle
of subsidiarity, as defined in Article 5 (consolidated version —
ex Article 3b) of the EC Treaty, applies exclusively to relations
between the Community and the Member States, and not to
relations between sub-national bodies and the Member States.
The latter relations are regulated by the constitutional systems
of the Member States. Article B of the EU Treaty refers to this
limited application in stating that the objectives of the Union
shall be achieved while respecting the principle of subsidiarity
as defined in Article 5 of the EC Treaty.

The EU Treaty however also stresses, in Article A, the need to
take decisions as close as possible to the citizen. The principle
of proximity is thus enshrined. This principle is intended to be
applied to EU, national and sub-national relations. It is thus a
basic principle and one that is affirmed even before the
principle of subsidiarity, the latter being a component of the
former.

Thus, the principle of subsidiarity, as specifically envisaged by
the Treaties, cannot conceal the need for Member States to
guarantee local and regional authorities the right to act to
ensure that decisions are taken as closely as possible to the
citizen, in accordance with the principle of proximity.

The subsidiarity principle represents a general legal principle
enshrined in national laws, whereby decisions are taken at the
institutional and operational
level closest to the citizen. It
commits the Union, the Member States and all institutional
levels to pursuing actively the aims assigned to them in the
respective laws, thereby ensuring the recognition, enhance-
ment and involvement of private individuals and their social
groupings. Subsidiarity should therefore be a key political
guideline in the building of the European Union.

Subsidiarity is a dynamic principle which in one area
1.1.5.
may lead to ‘more Europe’ and in another to ‘less Europe’. It
was introduced in 1992 under the Maastricht Treaty, whereby
decisions were to be taken as close as possible to the citizen,
in other words at the level of government closest and directly
accountable to the citizen, and at a higher level only when
necessary. The choice of the level of government best equipped
to carry out tasks in individual cases should be dictated solely
by the general interest, the requirements of citizens, and the
need to avoid jeopardizing economic and social cohesion. In
effect this means that the Community can only act if the
proposed action cannot be sufficiently achieved by the Member
States and can be better achieved by the Community. The
application of this principle must be reviewed regularly and
improved where necessary. This also means that Member
States must allow lower levels of government to take decisions
if they are in a better position to do so.

1.1.6.
The Committee of the Regions is firmly convinced
that strict adherence to the principle of subsidiarity is now of
importance whilst, at the same time, a broader sense of
European citizenship must be established and nurtured:

— The rich tapestry of cultures that constitute Europe’s
diverse heritage includes many regional and national
identities. A number of factors in today’s world threaten to
erode these identities. At the same time these cultures and
identities are being made and remade by patterns of
migration and settlement. All democratic authorities have
the responsibility to ensure that the values of humanism
and toleration remain the hallmark of Europe’s relations
between its own citizens and diverse communities and
nationalities.

— On the other hand, the sheer scale of the challenges facing
the European Union in the future makes it necessary for
Europe to set clear priorities whilst limiting its action to
what is essentially supra-national.

1.1.7. Within this overall process, European solidarity is
central to Europe’s social model and complementary to the
principle of subsidiarity. Solidarity with and support for the
weakest and most disadvantaged citizens in Europe is a sina
qua non for a Europe based on the principle of subsidiarity.
Subsidiarity should therefore not be allowed to work to the
disadvantage of the weakest elements of society but should
lead to everyone being involved in European integration on
equal terms.

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1.1.8.
The European Union should therefore concentrate
on problems which can only be solved in common and which
citizens accordingly expect it to solve. The greater the number
of Member States there are in the EU, the more important
the subsidiarity principle becomes. Clear priorities should
therefore be set in order to advance integration in a large
number of fields. This is why the Committee of the Regions is
in favour of a ‘strategic Europe’.

1.2.6.
According to the protocol on the application of the
principles of subsidiarity, the following conditions must be
fulfilled before the Community can act:

— the issue under consideration must have transnational
aspects which cannot be satisfactorily regulated by Member
State action;

1.1.9.
EU must be able to act effectively on the international stage.

To carry out this strategy inevitably means that the

1.2.

Improvements resulting from the subsidiarity principle

References to the principle of subsidiarity have resulted in
considerable improvements in the functioning of the European
institutions.

1.2.1.
Since the entry into force of the Maastricht Treaty on
1 November 1993, the principle of subsidiarity has gained
ground to become a powerful element in the political reality
of the European Union; it has also been accepted as a basic
formal principle for effectively guiding Union activities.

1.2.2.
European institutions have made considerable efforts
to adhere to this principle, particularly in the exercise of their
legislative and regulatory powers: as a result the European
Commission has not only withdrawn a large number of
it has also considerably reduced the
legislative proposals,
number of new proposals. In addition to this the Commission
is now tending to propose more and more framework
legislation.

1.2.3.
It is also worth noting that, before proposing legislat-
ive or regulatory acts, the Commission now prepares the
ground and opens up debates with Green Papers, Action
Plans and Communications, thereby ensuring that subsidiarity
aspects are discussed in detail before decisions are taken.

1.2.4.
Article 5 of the EC Treaty may now already have
legal consequences of its own. The important issue here is to
make a distinction between the substantive and the procedural
implications of applying the subsidiarity principle. As a
procedural criterion and as a concrete yardstick for gauging
measures,
the subsidiarity principle implies the need to
consider whether EU-level action is deemed necessary and if
so to state the reasons why. As a substantive criterion, the
subsidiarity principle implies the wish that decisions be taken
as close to the European citizen as possible.

1.2.5.
The protocol appended to the Treaty of Amsterdam
defines this principle of subsidiarity more precisely, particularly
with regard to the two pre-requisites for EU action, i.e. action
taken at levels closest to the citizen must not have produced
satisfactory results and the European Union must be better
placed to find solutions.

— action by Member States alone, or lack of Community
action, would conflict with the requirements of the Treaty
or would otherwise significantly damage Member States’
interests;

— action at Community level would produce clear benefits
by reason of its scale or effects, compared with action at
Member State level.

It was also stated in the protocol on the application of the
principle of subsidiarity that scope for the adoption of
decisions at national and regional level should remain as wide
as possible when drawing up legal provisions.

1.3. Contribution of the Committee of the Regions to the application

of the subsidiarity principle

Since it first came into existence, the COR has made
1.3.1.
defense of the application of the subsidiarity principle one of
its primary objectives. Hence this is not its first contribution
to the debate on the application of the subsidiarity principle in
the EU, as it had already expressed its views during the
preparation and adoption of the new Treaty of Amsterdam.
The COR would therefore reiterate its earlier statements and
especially its additional opinion of April 1995 (1) and its
resolution of 20 November 1997 (2). In these statements the
COR calls for the framing of procedures enabling it to bring
proceedings against infringements of the subsidiarity principle
which affect regional and local authority powers before the
Court of Justice. It also advocates inclusion of a direct reference
to regional and local authorities in Article 5 of the EC Treaty.

1.3.2.
The COR welcomes the protocol appended to the
Amsterdam Treaty on the application of the principles of
subsidiarity and proportionality. It underlines the importance
of
the Declaration of the Belgian, German and Austrian
governments whereby ‘action by the European Community in
accordance with the principle of subsidiarity not only concerns
the Member States but also their entities to the extent that they
have their own law-making powers conferred on them under
national constitutional law’. The Committee also feels that,
taking due account of the internal government workings of
the Member States, the general thrust of this declaration must
apply mutatis mutandis to regional and local authorities in
non-federal Member States. The COR likewise urges all Mem-
ber States, starting with those which have regional entities
possessing their own constitutionally recognized law-making
powers, to subscribe to this declaration.

(1) CdR 136/95 Appendix.
(2) CdR 305/97 fin.

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2. Developing a greater culture of subsidiarity and a

clearer delimitation of areas of responsibility

2.1. Subsidiarity, diversity and solidarity

The campaign in favour of the principle of subsidiar-
2.1.1.
ity and closeness to the citizen serves to strengthen the cause
of European integration. Europe has much to gain from
diversity and competition, whilst preserving its economic and
social cohesion. What is now needed is a rational assessment
of
the work done by Europe, and to improve it where
necessary, so that we can emerge in a stronger position to
meet the challenges of the future.

2.1.2.
No level of government should seek to regulate the
life of European citizens in all areas, and this likewise applies
to the Community level. Although many areas of responsibility
today have cross-border implications, this does not mean
that we should inevitably draw the conclusion that radical
harmonization of each individual sectoral policy is essential. It
is therefore necessary to achieve a reasonable harmonization
of individual sectoral policies, whilst protecting economic and
social cohesion throughout Europe. However, harmonization
is not always the only solution. In addition, many problems
can be solved without government interference, for instance
by agreements between the interested parties, and by the
organizations of civil society (like the social partners, for
instance) at European level. This approach has proven its
worth many times.

The Committee of the Regions acknowledges that legislation
enacted in Member States on the basis of Community directives
has been of great benefit to the citizens of Europe. Prior to
Community action, great disparities existed between Member
States, and this distorted competition. Although legislation
aiming at a high level of protection for citizens sometimes
imposes a cost on the economy, the benefits in terms of quality
of life far outweigh the costs.

Some of the important challenges facing citizens can only be
successfully met by the Community. Taking the interests of
citizens into consideration was the overriding aim of the
Amsterdam Treaty negotiations. The result was a ‘people’-
based Treaty enabling the EU to make a contribution to such
topics as employment, non-discrimination, citizens’ rights,
consumer protection and measures to tackle transnational
crime and drug trafficking.

2.1.3.
The Council, Commission, Parliament and Member
States are called upon to take a resolute stand in reshaping
European policy, promoting a Europe of subsidiarity and
closeness to the citizen and developing a genuine culture of
subsidiarity.

If the European Union is to be effective, it must concentrate
exclusively on questions that are of real concern to Europe.

Existing legislation on questions which would obviously be
tackled more effectively by a level of authority closer to the
citizen should be amended.

2.1.4.
This does not mean renationalization, i.e. an aban-
donment of the European idea, but a genuine reform which
would inevitably require some redistribution of powers
between the European Union, Member States and regions. The
goal of closeness to the people will therefore be achieved by
allocating responsibility for action to the level of government
where it can most effectively be carried out. Change is a natural
process whereby institutions are able to evolve and prepare for
future challenges. The EU needs to be democratic, open and
transparent.

2.1.5.
Two passages from the correspondence between
Chancellor Kohl and President Chirac on 5 June 1998 have
recently shed light on the goals we might seek to achieve
under such a policy:

— ‘All our efforts must be geared to creating a strong
European Union capable of action, whilst preserving the
diversity of political, cultural and regional traditions.’

— ‘It is therefore very important to keep in mind local,
regional or national particularities when taking decisions.’

2.2. Further implications of the principle of subsidiarity

2.2.1. S u b s i d i a r i t y a s a r e g u l a t i n g p r i n c i p l e

The principle of subsidiarity must play its role as a
2.2.1.1.
regulator of relations between the European Union,
the
Member States and the regional and local authorities, whilst
respecting the way Member States’ powers are organized
internally.

The subsidiarity principle has to be applied by means of a
co-decision process which, on a case-by-case basis, establishes
the level to which powers should be assigned (European
Union, Member States, regions or local authorities). The
principle should not be used as an alibi for failure to take
action at different levels of government, nor should it be
allowed to eventually cripple the European Union’s capacity
for action.

2.2.1.2. What is needed now is a rational assessment of the
work done by the EU so that we can emerge in a stronger
position to meet the challenges of the future:

A.

B.

It is a fact that, in its efforts to apply subsidiarity, the
Union has cut down on its legislative activities, particularly
in social and environmental protection policy areas. In
these areas the Commission has launched fewer and fewer
new initiatives despite the urgency of some of the problems
and their cross-border or trans-national characteristics.

In seeking to verify whether texts adhere to the principle
of subsidiarity, European Commission proposals are now
subject to a complex internal evaluation, as well as to
political scrutiny by the other institutions. All authorities
(including the various specialist councils and the General
Affairs Council) must monitor compliance with the subsid-
iarity principle in Council decisions. In the first instance
this is of course a task for the Committee of the Regions.

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2.2.1.3. We nevertheless need to keep in mind the principal
political objective of the subsidiarity principle: to take decisions
at the levels which are most effective and closest to citizens so
that the latter can play an active part in the European venture
and have access to all the information they need in order to
do so. The European venture will only gain support from the
population if the results are good and visible. At regional
level, and within local and regional authorities,
and local
arrangements - coordinated and spearheaded by the Com-
mittee of
the Regions working in partnership with the
European Parliament - should be made for grassroots consul-
tation on the goals of the European Union.

2.2.1.4.
Through their own experiences on the ground,
regions and towns are fully aware of the crucial importance
played by the transposition of European law into national law
— and by the application of national law — for the image
citizens have of Europe. In many Member States, regions and
towns have a role to play in applying transposed European
law to ordinary citizens.

2.2.2. S u b s i d i a r i t y

a s

a n i n n o v a t i v e p r i n -

c i p l e

2.2.2.1.
The subsidiarity principle also has a role to play in
breathing fresh life into relations between the Member States
and regions or local authorities when European policies are
being implemented.

Whilst the main objectives of the future development of the
European Union are to strengthen the Community’s capacity
to act, to ensure that the peoples of Europe are more aware of
what the Community is doing, and to give citizens a greater
sense of responsibility, it is in the interests of the European
Union itself to concentrate its efforts more on areas where
action by levels of authority closest to the citizen, and directly
accountable to the citizen, is insufficient.

2.2.2.2.
Implementation of European policy requires the
European Union to give levels of authority close to citizens as
much room for manoeuvre and as much scope for flexibility
as possible. At the same time the European Union must be put
in a position where it can act effectively in areas for which it
has prime responsibility and which are important to everyone.
Member States on the other hand must be honourable in their
dealings with the Community and must apply and implement
Community law correctly and transparently whilst observing
the subsidiarity principle.

2.2.2.3.
Institutional reforms are not an end in themselves
but must be a means to achieving, in the most effective way
possible, political objectives that have been democratically
approved and are recognized as being of importance. From
the point of view of public opinion and the principle of
closeness to the citizen, political objectives and institutional
legislation are closely interwoven even though political objec-
tives necessarily come first.

2.3. Subsidiarity and closeness to the citizen in reality

Communication from the European Commission entitled
‘Legislate less to act better: the facts’ of 27 May 1998 (1) The
Commission states in its Communication that it has now
withdrawn a large number of initiatives and cut down on its
legislative proposals. The subsidiarity principle is also a general
principle affecting general EU policy so that it should be
adhered to generally by all parties. It is applicable not only to
the Commission and the other Community institutions but
also to the Member States, which regularly call upon the
Commission to come up with new proposals.

3. Conclusions

3.1. What would a new culture of subsidiarity look like?

3.1.1.
The Committee of the Regions calls upon all Com-
munity institutions to rigorously apply the principle of subsidi-
arity in accordance with the new Article 5 of the EC Treaty
and the protocol on the application of the principles of
subsidiarity and proportionality appended to the Amsterdam
Treaty. All EU initiatives must be preceded by a critical,
uncompromising and coordinated scrutiny by the various tiers
of institution of whether action needs to be taken at European
level. Subsidiarity must not be an academic point to be ticked
off as a matter of pure routine.

3.1.2.
European integration requires both harmonization
and also the preservation of traditional diversity, diversity
being a characteristic feature of European identity. Properly
applied, subsidiarity protects this diversity.

The added value of a European policy must give equal weight
to the principles of harmonization and economic and social
cohesion, as well as to competition and diversity.

In adopting such an approach, attention should be concen-
trated not only on economic matters but social and cultural
aspects should be given equal weight.

3.1.3.
European decisions must be drawn up in such a way
as to leave as much scope as possible for national, regional
and local decision-taking. This, however, does not mean that
there should not be scrupulous monitoring to ensure the full
and accurate implementation of acts in order to prevent
distortions. The volume of legislation should be kept to a
bare minimum and the administrative costs involved in
implementing provisions should be kept as low as possible.
The Community should aim, when enacting legislation, to give
priority wherever possible to directives in order to facilitate
the implementation process in Member States. However,
the Committee of the Regions recognizes the need to use
regulations in those cases where it is essential for legislation to
be adopted in full
in order to avoid misinterpretations. It
would therefore be helpful to specify those areas where there
is a need for regulations, e.g. health and safety.

The Committee of the Regions recognizes the progress made
since the subsidiarity principle was first incorporated into the
EC Treaty under Maastricht and would refer here to the

(1) COM (1998) 345 final.

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3.1.4.
Responsibility for putting EU legislation into effect
should continue to remain in the hands of Member States and
regional and local authorities. The principle of closeness to
citizens can only be observed if European laws are implement-
ed in a decentralized way.

3.1.5.
The EU currently supports hundreds of different
schemes. These require an overhaul since, taken together, they
substantially restrict the political freedom of regions and local
authorities applying for such funds. EU support must therefore
help strengthen the political freedom of regions and local
authorities which have applied for such funds. It is necessary
to concentrate EU aid schemes on really essential objectives,
to simplify administrative procedures and to drop excessively
detailed requirements.

EU structural policy should continue to remain a central pillar
of European solidarity in the future and should increasingly
take the form of one-off payments to achieve EU objectives.

The Committee of the Regions has already expressed its view
in a large number of opinions that European structural policy
should continue to operate within the limits laid down by the
Treaty. Whilst adhering to the programmes planned in this
field, as well as to the principle of subsidiarity, the Committee
of the Regions has put forward a large number of proposals
on ways of streamlining and simplifying procedures, which
continue to remain valid. There is little sense in trying to show
effective solidarity by turning out a never-ending stream of
new and separate programmes that have to be run from
implementation of structural policy
the centre. The actual
programmes should essentially remain the preserve of Member
States as well as regions endowed with democratic legitimacy
and should be monitored effectively to ensure that targets are
achieved.

3.2. The principle of subsidiarity as a ‘regulating principle’

to areas
3.2.1. Whenever Community action extends
covered by shared responsibilities between the European
Union and the Member States, the subsidiarity principle must
be triggered both to safeguard national, regional and local
powers and, implicitly, to demonstrate whether or not Com-
munity action is justified.

3.2.2.
For the purpose of applying the principle of subsidi-
arity, it is useful to distinguish between the two aspects set out
in Article 5 of the EC Treaty:

— the need for action (second paragraph)

— he extent to which action is taken (third paragraph).

In this Article the areas where the Community has exclusive
powers are not subject to the subsidiarity test. The exclusive
powers of the EU must therefore be defined in a limited, precise
fashion, taking into account the principle of subsidiarity, and
this principle must become a flexible point of reference for
shared competences.

European-level action should only be taken when
3.2.3.
there is a clear added value in such action and where Member
States acting independently could not achieve the same results,

as defined in the Treaty, the protocol on subsidiarity and the
principle set out in this opinion. The Member States them-
selves, meeting in the Council, have to agree that the action in
question is needed to achieve one of the Community objectives.

3.2.4.
Assessing the need for action on the basis of
exclusive, authorized or shared competence on the part of the
Community and/or the Member States was what largely fuelled
debates between 1992 and 1997 and showed how difficult it
was to distinguish clearly between the powers of all parties.

As a regulator of the extent to which it is used, the
3.2.5.
principle of subsidiarityis reinforced by the principle of
proportionality, which is now also incorporated in the Protocol
appended to the Treaty of Amsterdam.

Regular monitoring of the application of the prin-
3.2.6.
ciple of subsidiarity is essential
in order to a) refine the
successive interpretations of the Court of Justice that have
further developed the position taken by the European Council
in Edinburgh in 1992, and b) to increase the transparency of,
and democratic control over, legislative acts.

3.3. The clear delimitation of powers

3.3.1.
Despite all the progress made and all the continuing
efforts to give concrete expression to the principle of subsidiar-
ity, it is becoming more and more clear that, in terms of the
exercise of powers, the principle of subsidiarity cannot by itself
guarantee that European legislation is restricted to essentials
and cannot prevent powers from being exceeded. What is
therefore needed is a lively debate and active monitoring —
not least by the COR — to check compliance with the
subsidiarity principle. Such checks should be carried out on a
regular basis, perhaps in the form of an annual report on
subsidiarity.

3.3.2.
As regards the actual distribution of powers, the
substantive Treaty Articles should list criteria in order to
permit an assessment of the need for EU-level action, thereby
clarifying non-legal terms such as ‘better’ and ‘not sufficiently’
as used in the definition of the general subsidiarity principle in
new EC Treaty Article 5. The current distribution of powers is
also vague since the EC Treaty sets out only very general
objectives and does not fix the precise scope of the relevant
measures.

3.3.3.
It is necessary, in particular, to keep internal market
questions (Article 100a of the EC Treaty) separate from
other policy areas such as culture and broadcasting, land-use
planning and health, etc. Individual economic issues do not
stand independent of all other policy areas and as such a
holistic approach should be taken. The body of competition
policy case law to date illustrates that culture, for example, can
be a justifiable reason to restrict the free movement of goods.
Similarly, protection of
local minorities calls for specific
measures which cannot be dictated by internal market criteria,
and under no circumstances by strictly economic principles.
One key criterion might conceivably be whether economic
aspects or else other policy considerations are central to the
particular area in question.

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3.3.4.
In view of the level of integration now reached by
Europe, and after a new and comprehensive demarcation of
powers has been agreed, it should be possible to turn attention
to ways of simplifying the procedure for amending the Treaties.
The COR must therefore launch a debate on the demarcation
of powers between the EU, the Member States and their
regional and local entities and come up with a new system for
apportioning powers.

3.3.5.
The objectives and tasks listed in Article 3 of the EC
Treaty must be spelt out in more detail and brought into line
with existing powers.

3.4. Guaranteeing regional prerogatives and local autonomy

3.4.1.
It is becoming apparent that the internal structures
of Member States are also changing rapidly. There is a strong
tendency towards decentralization and in some Member States
the regions have acquired a large degree of autonomy.

The Union is no longer just a Union of fifteen capitals but is
also a network of regions and towns. Institutional reforms can
no longer be escaped in view of the enlargement of the Union.

As a voice for local and regional authorities in Europe, the
Committee of the Regions would like to be involved in
‘designing’
the European Union in the
21st century.

the structure of

The Committee of the Regions stresses the need for the close
involvement of the candidate countries in this process, as they
too will one day be partners in the Union.

3.4.2.
European regulations sometimes limit the political
freedom of regions, towns and local districts. Whilst new
Article 6 of the EC Treaty specifies that the Union must respect
there are no
the national
corresponding provisions applicable either to regions or local
authorities.

its Member States,

identity of

The Committee of the Regions has already requested on several
occasions that such guarantees be enshrined in the Treaty (cf.
Appendix).

Protecting regional prerogatives and local autonomy
3.4.3.
involves both giving guarantees to local and regional auth-
orities, and making it possible to verify the proper application
of these guarantees, as well as the use of sanctions in the case
of failure to respect them.

The Committee of the Regions has already requested on several
occasions that such guarantees be included in the Treaty,
particularly under Article 3b (Article 5 in consolidated version)
of the EC Treaty (see Appendix, chapter 2).

In addition, the guarantee of local self-government should be
included in Article F of the Treaty on European Union,
according to which ‘the Union shall respect the national
identities of its Member States, whose systems of government
are founded on the principles of democracy’.

Paragraph 2 of this Article, which addresses fundamental
rights, should include a reference to the Council of Europe’s
Charter on Local Self-Government.

3.4.4.
Pending adoption of the institutional reforms which
failed to see the light of day in Amsterdam, the Committee
calls upon the Heads of State and of Government to draw up
a political declaration confirming that they are prepared to
provide the regions and local authorities with guarantees
concerning full implementation of the principle of subsidiarity.
Such guarantees should encapsulate the essence of the arrange-
ments to be worked out between Member States, regions and
local authorities.

The Committee of the Regions, whilst reiterating the demands
which were not met in the Amsterdam Treaty, takes the view
the necessary institutional discussions should focus,
that
among other things, on ways and means of ensuring com-
pliance with the subsidiarity principle.

Thus, the Heads of State and of Government might commit
themselves to ensuring that local and regional authorities
are automatically consulted on any Community policy or
regulation which would have a significant impact on them, be
it of a financial, economic or environmental nature, or
involving social cohesion or human rights, both during
the process of drawing up a political strategy and when
implementing it.

3.5.

Inter-regional and inter-district cross-border cooperation

If the principle of subsidiarity is to develop its full
3.5.1.
dynamic potential,
for regional and local
is essential
authorities to be able to effectively solve-on-the-spot problems
within the powers conferred on them, if need be in cooperation
with neighbouring regions and local districts.

it

3.5.2.
Inter-regional cross-border cooperation to date has
invariably come up against legal and administrative obstacles
arising out of Member States’ foreign policy prerogatives. In
most of the Member States such cooperation can only be
organized by the central authority. Diplomatic agreements are
generally required if legally binding commitments are to be
entered into, even if such commitments do not transcend that
particular region or district.

3.5.3.
As a consequence, we must inevitably accept that a
large number of daily problems faced by citizens of frontier
regions — e.g.
in terms of the labour market, transport
and accommodation — cannot be solved promptly and
satisfactorily.

3.5.4.
The Committee of the Regions therefore considers it
absolutely essential to remove obstacles to effective inter-
regional cooperation. It takes the view that such a request
clearly flows from the scrupulous application of the principle
of subsidiarity, as enshrined in the Treaty. The Committee of
the Regions calls upon the Member States to do what is
necessary to ensure that inter-regional cooperation is recog-
nized as an area of common interest endowed with a European
legal framework.

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3.6. Result

From the point of view of policing the subsidiarity
3.6.1.
principle before the European Union takes any action, it is
important for the Committee of the Regions to be able to
say, when examining preparatory acts and proposals for
Community action, whether the Commission has adhered
to the principle. The Committee calls upon the European
Commission to present its annual report on subsidiarity to the
Committee of the Regions. The latter is prepared to deliver an
annual opinion on this report. The Committee of the Regions
also reiterates its plea that there be a genuine ‘preventive’
scrutiny of texts before legislative decisions are taken by
European bodies to ensure that such texts are justified and
meet subsidiarity criteria.

The Committee of the Regions unequivocally urges
3.6.2.
the European Council to promote a Europe rooted in the

in which the particularities and
principle of subsidiarity,
identities of
the peoples of Europe — which represent
its greatest wealth — are strengthened, thereby fostering
competition but without prejudice to solidarity and cohesion.
The Committee of the Regions calls on the Member States to
endeavour in their domestic legislation to use the principle of
subsidiarity as a guideline for the allocation of powers, not
only in defining their own areas of responsibility, but also as
an incentive to involve the regional and local authorities in the
definition of the conditions for the application of the powers
of the latter bodies.

3.6.3.
Application of the principle of subsidiarity concerns
not only the Union’s legislative and regulatory activities, and
hence relations between the Union and its Member States. It is
also relevant to the national decision-making process and to
the transposition of European law in the Member States and
the application of that law at national level. At the European
insufficient attention has so far been paid to this
level,
particular aspect of the subsidiarity principle.

Brussels, 11 March 1999.

The President

of the Committee of the Regions

Manfred DAMMEYER

APPENDIX

to the opinion on the Commitee of the Regions

1. The principle of subsidiarity and European legal texts

1.1.
The idea of subsidiarity was dealt with implicitly in Article 95 of the ECSC Treaty of Paris, signed on 18 April
1951, as well as in Article 235 of the Treaty of Rome, signed on 25 March 1957. It was also dealt with explicitly in
the 1975 Spinelli report of the European Commission on European Union which stated that: ‘The European Union
must not, any more than the present Communities, lead to the creation of a centralizing super-State. The Union will
accordingly, and in accordance with the principle of subsidiarity, only carry out tasks which the Member States can
no longer perform effectively themselves.’

1.2.
The first European legal text to have expressly defined the principle of subsidiarity was the Council of
Europe’s European Charter of Local Self-Government signed in Strasbourg on 15 October 1985. Ratified by 30
Member States of the Council of Europe, including 12 of the 15 Member States of the European Union, it has now
become a Convention of the Council of Europe and must be incorporated in the national legislation of the States
which have ratified it.

1.3. Worth noting in particular are Articles 3 and 4, and especially Article 4(3), which illustrates neatly the
principle of subsidiarity by stating that: ‘Public responsibilities shall generally be exercised, in preference, by those
authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the
extent and nature of the task and requirements of efficiency and economy.’

1.4.
The principle of subsidiarity was introduced reasonably clearly into the European Treaties via the Single
European Act of 1987 where the chapter on the environment (fourth paragraph of Article 130r) states that: ‘The
Community shall take action relating to the environment to the extent to which the objectives referred to in
paragraph 1 can be attained better at Community level than at the level of the individual Member States’.

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1.5.
Introduced in Article 5 of the EC Treaty by the Maastricht Treaty, this principle of subsidiarity has led to
many comments since then, particularly during preparations for the Intergovernmental Conference of 1997, before
being spelt out in more detail in a Protocol appended to the Treaty of Amsterdam of 2 October 1997.

The Declaration on subsidiarity by the governments of Germany, Austria and Belgium calls for recognition

1.6.
and application of the principle of subsidiarity within the Member States.

2. Developments between the Treaties of Maastricht and Amsterdam

2.1.
During the period of preparation for the Intergovernmental Conference and the Treaty of Amsterdam, the
Committee of the Regions expressed its views in a COR Opinion (1) on improvements to the drafting of several
Articles in the Maastricht Treaty on mechanisms for ensuring the participation of regions and local authorities in the
administration of Europe, and on ways of implementing the principle of subsidiarity. It also called for changes in its
own status, organization, scope and fields of intervention.

2.2.
It is worth noting in particular that the Committee of the Regions called for a rewording of Article 5 of the
EC Treaty by explicitly mentioning the role of local and regional authorities endowed with decision-making powers
under the domestic legislation of the Member State in question; it likewise called for a clear definition of the
respective powers of the European Union and the Member States, and the right of regions to institute proceedings to
have decisions declared null and void if they infringe the principle of subsidiarity.

2.3.
The suggestions of the Committee of the Regions were similar to many others, and particularly those of the
Assembly of European Regions and the Council of European Municipalities and Regions calling for amendments to
provisions of the Treaties on topics such as local self-government, transparency, partnership, the representativeness
of the Committee of the Regions, non-discrimination between the sexes, and equal opportunities.

3. Progress under the Amsterdam Treaty

Several amendments called for by the representatives of regions and local authorities were introduced into

3.1.
the Treaty of Amsterdam and a Protocol on subsidiarity was appended.

Progress was made on the status and organizational capacity of the Committee of the Regions as well as on
partnership, equal opportunities, and transparency.

On the other hand a number of proposed amendments on local self-government were not included in the Treaty.

3.2.
It is self-evident that regions and local authorities therefore still want to see their place defined more precisely
and their role given more consideration in a large number of Treaty Articles. They also believe that there should be a
fuller dialogue between all regional and local levels, thereby widening the dialogue which has for so long been
confined to European and Member State levels.

The European Council meeting in Cardiff of 15 and 16 June 1998 decided that the problems of the practical

4.
implementation of subsidiarity would be examined.

(1) CdR 136/95 and Appendix.