Subsidiarity (toissijaisuusperiaate) - Art 5 (par. 3) TEU

Generally

Even if the EU has the right to act on something, SHOULD it exercise this power?

Union shall only act when objectives can't be sufficiently reached within the member states, and it’s better to act on union level (such as climate change questions)

Whenever the commission proposes something, it must always explain why this act is better to be done on union level

It must be sent to all national parliaments; they have 8 weeks to consider it → they can object if they think there is a subsidiarity violation

If ⅓ thinks that the thing is more efficient to operate on national level, the Commission has to reconsider it

Can you sue the court?

In the end, the Court has the last word

Role of the Court

BRITISH AMERICAN TOBACCO 2002

Regards tobacco’s (and other nicotine products’) manufacturing

The EU can operate in this area (common market etc.) but SHOULD it, or should it be left for businesses and member states? → which one is more efficient depends on the objective of the regulation

Tobacco company states that the tobacco directive is against subsidiarity principle → regulations should be given on national level

The EU stated that this was mainly about harmonizing laws between member states (why didn’t they argue health?)

Who is better at harmonizing each other's laws, the EU or member states? → Clear answer is EU because countries can’t decide on each other’s laws

The EU won

Conclusion

  1. Can the EU act at all? (competence)
  1. If it can, should it?
  1. If it should, how it should or how it can?

Opposite hierarchy: Member states are the true leaders of the EU and the EU itself is below them (they e.g. sign all the treaties --> give the EU its competence) BUT; Member states are also below the EU: when EU uses its legislative powers, member states must comply, these acts are binding and failing to comply causes sanctions (Poland’s 1 million a day until you comply fine)

Member states are very much sovereign countries, not just members of the federation

Intense integration while conserving sovereignty: This is unique in the history of mankind → to have extreme integration without ending up in a federal state