The Principle of Subsidiarity as a Constitutional Principle in the EU and Canada

Andreas Follesdal,Victor M Muñiz Fraticelli

doi:10.7202/1035329ar

Abstract

A Principle of Subsidiarity regulates the allocation and/or use of authority within a political order where authority is dispersed between a centre and various sub-units. Section 1 sketches the role of such principle of subsidiarity in the EU, and some of its significance in Canada. Section 2 presents some conceptions of subsidiarity that indicate the range of alternatives. Section 3 considers some areas where such conceptions might add value to constitutional and political deliberations in Canada. Section 4 concludes with some reminders of crucial contested issues not fully resolved by appeals to subsidiarity alone, exemplified by the protection of human rights.

Highlights

SUBSIDIARITY—IN THE EU AND IN CANADAThe Lisbon Treaty, the Subsidiarity Principle requires that: in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”
A Principle of Subsidiarity regulates the allocation and/or use of authority within a political order where authority is dispersed between a centre and various subunits
In Canada, arguments reminiscent of ‘subsidiarity’ appear to underpin the Supreme Court of Canada’s ‘provincial inability test’ to interpret the extent of federal jurisdiction under section 91 of the 1867 Constitution Act,1 and the principle has been expressly invoked on several occasions on different subject matters

Summary

SUBSIDIARITY—IN THE EU AND IN CANADA

The Lisbon Treaty, the Subsidiarity Principle requires that: in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”. The Lisbon Treaty, the Subsidiarity Principle requires that: in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”4 Such claims must be supported by reasons given in public. To bring out the choices made, as well as the prospects for contestation, it is helpful to consider several partially conflicting theories of subsidiarity

TRADITIONS OF SUBSIDIARITY

LIMITS TO THE VALUE OF A PRINCIPLE OF SUBSIDIARITY