INTERACTION OF THE SUBSIDIARY AND PROPORTIONALITY PRINCIPLES IN EUROPEAN UNION LAW”

Abstract

Abstract 
The European integration history is placed now in a period of half a century, from the Treaty of Rome and 
reaching the recent stage of efforts for the adoption of the European Constitution. Since the beginning of the 
community, the vertical system of delegation of powers was based on the principle of attribution. 
This principle was replaced by the principles of subsidiary and proportionality according to the Treaty of 
Maastricht. This paper will represent a recreation of two principles, primary considering the states or federal-type 
or those structured under plurality of public authority levels and to analyze later the experiences of member 
states in view of the principle of subsidiary and proportionality. After denying the idea of pure division of powers 
between the EU and member states, was aimed at the coordination of the exercise of competencies according to 
the criteria of subsidiary as provided in Article 5 of the Treaty of Rome. This provision was not accurate as the 
treaty did not précised the differences existing between exclusive and non-exclusive competences. The result is 
a vague discretion conferred to the institutions which has to decide to give priority to EU competence, or to 
acknowledge to member states freedom to exercise their powers. This fact has orientated to the need for a more 
clear specification of the conditions in which should be applied this principle, explicitly provided in the Protocol 
attached to the Treaty of Amsterdam, as a dynamic and bilateral concept. 
Subsidiary principles was subject of analyze by many researchers and lawyers, as the principle of attribution lost 
much of its power, due to redirection from attribution criteria to those related with exercise of powers. This 
principle refers only to exclusive competence for which EU is called upon to intervene in Subsidiary way in case 
of insufficiency of the states. It is provided a broad discretion of the EU institutions to decide on the application of 
the principle of subsidiary. This issue is analyzed in Birmingham and the Edinburgh Council in 1992, in a 
Commission document of the same year, in an inter-institutional agreement of 1993 and finally in the Protocol 
attached to the Treaty of Amsterdam in 1997. The Protocol on the application of the principles of subsidiary and 
proportionality states clearly that subsidiary is a dynamic concept that allows extension as well as reduction in 
community action, according to the circumstances of each case. 
The principle of proportionality is also of importance. This is understood as a principle that requires from the 
institutions of the EU to monitor the exercise of their powers so that the measures taken do not exceed what is 
necessary to achieve the goals of relevant institution. The Court of Justice in its decisions does not clearly 
express the principle of proportionality, but this does not mean that this principle is not fundamental for the 
decisions. In this field, a new regulatory system was born in the 90s when the Court accentuated the importance 
of proportionality, stating a clear reference on this principle.