Subsidiarity Research Articles

Co-planning as a public health tool: the Milan Health Protection Agencies’s Local Gambling Plan

Abstract Issue/problem Gambling represents a public health, social, and economic problem. Lombardy Region, according with national and regional law, has approved the Regional Plan for the prevention and contrast of Pathological Gambling. The Health Protection Agencies (HPA) of the Metropolitan City of Milan, as the other HPAs, implemented the Local Gambling Plan, based on a context analysis and in synergy with all the actors involved. Description of the problem Since 2019, the Milan HPA’s Local Gambling Plan has been implemented through collaboration with non-profit entities (TSEs), which are involved via public tendering. The implementation of the new Italian ‘Code of the Third Sector’ changed the TSEs engagement modalities. For this reason, a complex co-planning process has been initiated in order to increase the level of active citizenship and to enhance public health, in line with horizontal subsidiarity principle. Results The Co-planning procedure promoted the integration among local health services, non-profit entities and municipalities with the aim of gambling prevention and contrast, ensuring the continuity of prevention programs and the involvement of local stakeholders in addressing a public health issue. During the co-planning, 9 working groups were established to define objectives, project actions, monitoring and evaluation methods, ensuring the common interest of all actors involved. Lessons For the health and social system, the co-planning procedure becomes an opportunity to translate what is foreseen by the regulations into local actions. It allow the active participation of local stakeholders involved into the co-construction and achievement of public health objectives and the promotion of communities’ empowerment. Key messages • Co-planning is both a process and a tool for local welfare. • Co-planning involved multiple actors, among which the public institution that ensures satisfaction of health needs through governance actions.

The financialisation of contemporary urban planning policy discourse: insights into Serbian and Irish planning legislation

ABSTRACT While existing literature highlights the role of private real estate interests in shaping urban policy agendas, few studies have examined formal changes in planning legislation as a key site of influence. This paper investigates planning legislation reforms in Serbia and Ireland as illustrative cases of a broader trend of reducing investment risks and enhancing the financial viability of real estate development. Employing critical and context-sensitive narrative analysis of policy change, we present three key insights. First, we reveal how planning has been transformed into a tool for creating real estate assets driven primarily by financial considerations. Second, we demonstrate that public interest is often subordinated to private interests under a policy narrative dominated by financial sector logic and document how legislative and policy changes frequently introduce new barriers that restrict democratic engagement in planning policy formation. Third, we identify an increasing centralization in planning administrative structures, which undermines the principle of subsidiarity and provides opportunities for certain lobby groups to exert undue influence over policymakers. As the financial sector's influence on built environments grows globally, this study calls for more research into how real estate finance and planning systems affect each other, and how this plays out in practice.

Constitutional and legal foundations of territorial integrity in federal states: historical and legal analysis

The article explores the constitutional and legal foundations of the territorial integrity of the federal states, focusing on historical and contemporary examples. The authors examine cases of successful and unsuccessful secession, as well as legal mechanisms used to prevent separatism. We take Spain, the USA, Canada, India, and Germany, as the examples to analyze the role of constitutional provisions in maintaining state unity. A key aspect of the study is the distribution of competencies between federal structures and federation subjects, which ensures a balance of interests and prevents internal conflicts. A great attention is paid to the principle of subsidiarity and the role of federation subjects in governance, contributing to the preservation of territorial integrity. The authors emphasize the importance of integration mechanisms and constitutional guarantees in maintaining the stability of the federal states. The article establishes that the territorial integrity of federal states is ensured through a set of constitutional and legal norms that regulate the relations between federal authorities and the subjects of the federation. These norms include a clear distribution of competencies, where federal authorities are responsible for national issues such as defense and foreign relations, while the subjects of the federation have powers in local governance. The principle of subsidiarity involves the participation of the federation’s subjects in state governance, ensuring a balance of interests and preventing internal conflicts. Additionally, the supreme legal authority of the federal constitution, mechanisms of federal intervention in case of threats to integrity, and the unity of the economic space all contribute to the stability and unity of the federal state, effectively countering separatist movements. It is determined that the participation of federation subjects in the process of constitutional amendments guarantees their representation and protection of interests, preventing unilateral changes in the state structure. The state language plays an important role, promoting national unity and preventing ethnic conflicts, which is critical for multinational federations. Furthermore, the representation of federation subjects in the national parliament ensures their influence on key decision-making, promoting more balanced policies and strengthening ties between the central government and the regions.

Strengthen the doctor-patient relationship and avoid administrative stifling.

The acquisition of private medical practices by large health-care corporations is transforming clinical practice in many Western countries. The growing influence of health administration on medical practice is increasingly perceived as a danger by the public and health professionals. Health-care administrators should not replace doctors or invade their competencies. Back to principles, the patient-doctor relationship must be funded in trust. Representing society, governments must try to ensure health care to all citizens, serving one of the fundamental human rights. Using the principle of subsidiarity, administrators should fill gaps in the provision of health care to all patients by doctors.

Grand confusion after Sanchez v. France: Seven reasons for concern about Strasbourg jurisprudence on intermediaries

The latest Grand Chamber decision of the European Court of Human Rights in Sanchez v. France makes the previous Delfi test absolutely unpredictable. This article explains why the uncertainty now concerns almost every single aspect of this test, and why case law hardly offers any guidance on the most basic questions. It is argued that with Sanchez, the Strasbourg case law on liability for the speech of others online officially descended into chaos without a proper sense of direction. Grand confusion about Sanchez now has the potential to threaten legal certainty introduced by EU law, as illustrated by its application in Zöchling v. Austria. Despite the Court's proclaimed deference to national law and increased use of the subsidiarity principle, it is striking that democratically adopted European legislation about digital services has been ignored for so long in Strasbourg. Sanchez now raises a serious prospect that the ECtHR is on a collision course with the EU's newly adopted legislation, the Digital Services Act, that builds on the last 20 years of rules.

The Court’s Correcting Mechanism: ‘General Measures’ as a Judicial Remedy to Address Legislative Inaction?

Abstract Citizens confronted with a domestic legislator remaining inactive in contravention of its human rights obligations may turn to the European Court of Human Rights (ECtHR or Court). Having already passed legal challenges at the ‘heads’ end of the European system of human rights, the question arises whether they can find redress at the ‘tail’. When the ECtHR establishes a violation due to a lack of regulatory framework, it may decide to indicate general measures in Article 46 and pilot judgments. Based on an analysis of case law, this paper elaborates on how the Court goes about its remedial practice in legislative inactivity cases. The observations relate to addressing the domestic legislator directly, and the frequency, legal status, content, and deadline of the measures. They can, at least in part, be explained by the Court’s adherence to the principle of subsidiarity. Still, many uncertainties concerning the Court’s practice remain.

Program Graniczny Unii Afrykańskiej: cele i ich realizacja (2007-2022)

AFRICAN UNION BORDER PROGRAMME: OBJECTIVES AND IMPLEMENTATION (2007-2022)The African Union Border Programme (AUBP) was established in 2007 as part of African Union’s efforts to strengthen the structural conflict prevention capacities of its Member States. The main objective of the AUBP is the promotion of peace, security and stability through: delimitation and demarcation of borders, cross-border cooperation, and capacity building. The Program is implemented on three levels: national, subregional and continental, based on the principle of subsidiarity. In implementing the Programme, the AU Commission cooperates both with African organisations (primarily regional economic communities) and the United Nations, European states (especially Germany) and European organisations of cross-border cooperation (for example AEBR and MOT).

The Shifting Landscape of Judicial Independence Criteria Under the Preliminary Reference Procedure: A Comment on the CJEU’s Recent Case Law and the Trajectory of Article 267 TFEU

AbstractThe preliminary reference procedure forms the foundation of judge-to-judge dialogue in the EU, which has been imperative to the inclusion of member state courts in the Union’s judicial system. In response to the Union’s ever-growing rule of law problem, the CJEU strengthened judicial independence criteria to fortify the Article 2 TEU value of the rule of law. Now, it seems the CJEU’s fight to save judicial independence is spilling over into the preliminary reference mechanism as it overhauls its judicial independence standards under Article 267 TFEU. In particular, the CJEU has chosen to treat traditional and non-traditional courts in a divergent way and introduced significant reliance on judicial decisions emanating from outside the immediate CJEU court structure; this multi-dimensional change to the operation of the preliminary reference mechanism has far-reaching consequences. As this article highlights, the most notable consequences are to the uniform application of EU law, the principle of subsidiarity and autonomy of EU law. Perhaps the most important point raised is the effect of the new limitation on Article 267 TFEU references on EU citizens and our right to access the ‘natural judge’ (the CJEU) in matters concerning EU law.

Beyond national sovereignty: Application of the subsidiarity principle to protect climate change-displaced persons

This article emphasizes the critical role of the subsidiarity principle in facilitating adaptation to climate change. Employing a comparative legal analysis approach, the paper examines how this principle, traditionally pivotal in distributing powers within the European Union, could be adapted globally to manage climate change displacement. Specifically, it explores whether subsidiarity can surmount the challenges posed by national sovereignty and states’ reluctance to cede control over domestic matters. Findings indicate that while domestic efforts and local adaptations should be prioritized, international intervention becomes imperative when national capacities are overwhelmed. This article proposes that ‘causing countries’ and the global community bear a collective responsibility to act. The Asia-Pacific region, characterized by diverse and vulnerable ecosystems like small islands, coastal areas, and mountainous regions, serves as the focal point for this study. The research underscores the necessity of developing policies and further research to robustly implement the subsidiarity principle in protecting climate-displaced populations.

Organizational and economic mechanism for the development of the industrial complex, taking into account the activation of innovative processes in the regional economy

The article examines the importance of implementing an organizational and economic mechanism to stimulate innovative processes in the industrial complex in order to achieve significant socio-economic benefits. In the context of industrial development with a focus on innovation, special attention is paid to the creation of new jobs, especially in areas requiring high qualifications and scientific knowledge. The implementation of a special organizational and economic management mechanism is necessary for effective management and stimulation of innovative activity in the regional economy. This mechanism must coordinate, interact and effectively implement policies and strategies aimed at supporting innovation, control the location of resources and support innovative enterprises. The article discusses various approaches to understanding the economic mechanism, including functional and structural approaches, and also examines its role in coordinating the actions of economic agents to achieve common goals and ensure sustainable development of the economy. The article explores the organizational and economic mechanism for managing the industrial complex of the region with the aim of diversifying economic activities and increasing overall competitiveness. Regional governance covers the coordination and integration of various aspects such as economic development, infrastructure and social welfare. The article discusses the principles of inclusiveness, participation and subsidiarity in the context of managing a regional industrial complex, and also examines the main components of the organizational and economic management mechanism. The proposed management scheme is based on stimulating innovative activity through the market aspect, resource block, financial component, motivational block and the development of production and innovation infrastructure. The article examines a systematic approach to managing the regional industrial sector in order to stimulate innovation in the economy. The importance of analyzing the economic situation and potential of the industrial sector is highlighted as a priority step. Next, methods for defining goals and objectives, developing a regional innovation strategy, developing policy and regulatory frameworks, financing and investment, developing production and innovation infrastructure, cooperation and partnerships, digitalization and developing a culture of innovation are discussed. The authors emphasize the need for interaction between multiple participants in the industrial sector and propose an organizational and economic mechanism for managing the industrial complex of the region to stimulate innovation, develop scientific and technical potential and ensure economic growth.

The Claim for An Institutional Identity in Healthcare Activities: the Italian Case

Abstract The aim of this article is to analyse the status of religiously affiliated health facilities in Italy. Many faith-based healthcare institutions are currently entrapped between the expectation to participate in the healthcare public delivery, and the need for a preservation of their religious identity. Indeed, they are facing an increasing risk of a weakening of their religious identity, due to the evolution of civil law regulating ethically controversial issues, which is increasingly distancing from the religious approach, undermining the traditional religious accommodation granted to faith-based healthcare institutions. However, the preservation of their religious ethos requires dealing with a ‘web of relationships’ which includes the founding religious order, patients, practitioners, the State and a ‘highly competitive market’. This article explores the feasibility of an intermediate path between complete immunity and strict non-tolerance of their religious ethos, in the pursuit of the constitutional principles of pluralism, positive neutrality, and subsidiarity.

ЄВРОПЕЙСЬКА ХАРТІЯ МІСЦЕВОГО САМОВРЯДУВАННЯ ЯК ОСНОВА ДІЯЛЬНОСТІ ОРГАНІВ УПРАВЛІННЯ ТЕРИТОРІАЛЬНИМИ ГРОМАДАМИ В УКРАЇНІ

The article examines the topic of compliance of legal regulation and the actual activity of local self-government bodies with the European Charter of Local Self-Government from the point of view of the conceptual understanding of the place of the local self-government body in the system of local self-government, its authority to perform management functions, the possibility of external supervision of its activities and rights citizens to participate in local government, which is the fundamental basis that characterizes the condition and capacity of local authorities. It has been established that the competence of local self-government bodies to carry out management in the form of delegated authority provided by Ukrainian legislation does not correspond to the principle of subsidiarity, which is defined by the European Charter of Local Self-Government, and the lack of a real and effective mechanism of administrative supervision of local self-government bodies, as provided for by this international agreement, has also been revealed. In addition, the discrepancy in the approaches of the European Charter of Local Self-Government and acts of Ukrainian legislation to the conceptual understanding of the place of local self-government bodies in the local self-government system was analyzed, and the problem of involving internally displaced persons to life in new communities and their right as community residents to participate in local self-government was highlighted. The importance of developing specific proposals for full compliance with the principle of subsidiarity in part of delegated authorities and the implementation of the mechanism of administrative supervision over the activities of local self-government bodies into regulatory and legal circulation was emphasized. At the same time, emphasis is placed on the need for a unified approach to building a high-quality and effective regulatory framework on local self-government based on European standards, which is an important issue on the agenda in the context of Ukraine's movement towards the European community.

ESORFRANKI PIPELINES (PTY) LTD v MOPANI DISTRICT MUNICIPALITY [2022] ZACC 41

The Constitutional Court, in the recent case of Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality ([2022] ZACC 41), had to decide whether a tenderer, whose tender failed as a result of the intentional misconduct of the State, could claim damages in delict from the State for loss of profits (par 1). The High Court and the Supreme Court of Appeal both applied the res iudicata rule, holding that the matter had already been raised. In both instances the courts also found that wrongfulness and causation had not been proven. The Constitutional Court, in applying the principle of subsidiarity, held that wrongfulness had not been proven. The purpose of the case note is to show that the reasons advanced by the courts for not allowing the delictual claim, are based on incorrect applications of the legal principles.

Konstruksi Penalaran Hakim dalam Menetapkan Pelaku Materiil Tindak Pidana Pembunuhan Berencana sebagai Justice Collaborator (Analisis Kasus ER pada Putusan Nomor 798/Pid.B/2022/PN JKT.SEL)

This research is based on the existence of premeditated murder incidents committed by several criminals in the context of the inclusion of criminal acts (delneming). One of the perpetrators of the crime, namely the Defendant ER, was considered by the judge to be a person who participated in the crime of premeditated murder, so the judge in his decision Number 798/Pid.B/2022/Pn Jkt.Sel designated the Defendant as a justice collaborator. The type of research used in is normative juridical research. Library research techniques are using primary legal materials such as basic norms, laws and regulations, and court decisions, secondary legal materials, namely magazines, books, or newspapers, and tertiary legal materials, namely dictionaries, articles, or reference materials. The data analysis technique used is the normative-qualitative analysis method. The results of the data analysis show that the legal construction of the determination of the perpetrator of crime as a justice collaborator can be interpreted in four elements, namely problematic scope, should be interpreted as not just organized crime but all criminal acts that have a maximum threat of eight years in prison, and with the note that before the determination of the perpetrator as a Justice Collaborator, the principle of subsidiarity is first applied. where the granting of the status of a Justice Collaborator can only be done as a substitute if other means of exposing the crime have failed

A Social Europe without a Social Conscience

Abstract Founded on the underlying principles of equality, solidarity and cohesion, with economic growth envisioned as a vehicle to social well-being, Europe has emerged as a significant competitor in the global economy. Despite the subsidiarity principle, member states’ social protection systems are increasingly being driven by the European neoliberal agenda. Malta is no exception: its socialist welfare regime, based on strong government interventions and universal provision, has progressively given way to a more regulated, privatised and means-tested model. The globalisation–inequality–social protection nexus suggests that Malta’s high GDP growth and widening inequalities are not reflected in a reciprocal outlay in social protection expenditure. In a context where the social well-being of all is increasingly becoming subordinated to the economic well-being of the few, one questions to what extent the social model has remained a fundamental pillar of the EU and whether, through Europeanisation, Malta is concomitantly losing its social conscience.

Problems of Implementing Village Origin Rights in Indonesia

Local democracy in the village is essentially based on these rights of origin and traditional rights. This paper aims to discuss the problems of villages in exercising their rights of origin in Indonesia. To understand how these rights of origin are implemented, this article refers to the practice of Nagari as a customary legal community unit in West Sumatra Province. Not only that, enrichment related to implementing rights of origin also refers to Desa Pakraman in Bali Province. This article uses a literature study derived from documents that have been published from various sources such as articles in scientific journal, mass media news, and official government documents. This article finds that problems in the application of origin and traditional village rights arise because of strict government regulations that encourage village governments to focus on carrying out governance functions in their area. Using the principles of recognition and subsidiarity in the administration of village government results in an attitude of ambiguity in the administration of village government. As a result, the village government prefers to implement the household authority handed over to it accompanied by a budget through Village Fund transfers rather than developing the original rights that have become the identity of pre-existing local democracy.

The multilevel governance challenges of NextGenerationEU: the Spanish and Italian decentralised systems viewed through the lens of federalisation

The post-COVID-19 panorama presents serious economic and social challenges, prompting the European Union (EU) to allocate extensive funds to its Member States. The central financing instrument created for this purpose, NextGenerationEU (NGEU), requires the Member States to implement ambitious reforms to bring about green and digital transitions within their National Recovery and Resilience Plans (NRRPs). Despite innovative elements in NGEU’s decision-making process, legal basis and fiscal integration policy, the role of sub-state authorities in the context of multilevel governance (MLG) demonstrates a centralised tendency. In order to understand this issue, the management of NRRPs in the Spanish system of autonomous communities and Italian regionalism will be taken as emblematic case studies. Specifically, the constitutional significance of the MLG model in the context of the NGEU recovery package will be evaluated in light of the principles of solidarity, subsidiarity, proportionality and partnership. This paper ultimately aims to offer broader insights into NGEU’s role in the ongoing EU federalisation process and its shortcomings with respect to national decentralised systems.

The current situation of intercountry adoption in Spain

Intercountry adoption is a young institution that, after experiencing a boom at the beginning of the 21st century is currently immersed in a period of decline. The years 2020 to 2023 have been especially notable in this matter in Spain, as a consequence of the jurisdiction conflict, resolved by STC 36/2021, as well as the COVID-19 crisis, causing China to restrict international adoption. This paper analyzes the features that have characterized intercountry adoption in its different stages and the factors that have led to its evolution, focusing on the study of the successive regulatory swings that have occurred in Spain. As a result of this study, it is observed that, beyond the current circumstances brought about by the COVID-19 crisis, this institution currently has a residual weight that is increasingly in line with the principle of subsidiarity, recognized by the Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption.

Filling the EU information deficit mitigates negative EU attitudes among the least knowledgeable. Evidence from a population-based survey experiment

ABSTRACT The cognitive mobilisation thesis suggests that increasing knowledge on the European Union (EU) would lead to increased support for the institution. We test this with a strategic case whereby we provide information on the EU’s subsidiarity principle to the citizenry of a small member state and examine whether it mitigates negative EU attitudes. In an original, pre-registered, population-based survey experiment conducted with members of a panel representative of the Dutch population, respondents were assigned randomly to a control group or a treatment: a professionally produced information video mimicking EU communications. Along with estimating the overall treatment effects, based on extant literature we assess whether these effects are moderated by the respondents’ prior EU knowledge and level of populist attitudes. Consistent with the information deficit theory, we find that information provision decreases negative attitudes among the least knowledgeable. We discuss the implications of our findings and provide suggestions for further research.

Demobilising Opposition to European Integration: The Principle of Subsidiarity and the Creation of the European Union, 1988–1992

By analysing new archival evidence, this article reveals how in the late 1980s, the legal principle of subsidiarity came to be seen as a tool for demobilising opposition to further European integration. At the same time, it also became a projection screen for competing visions for Europe's future: while the European Commission saw subsidiarity as an important foundation for a future European federation and the German government as an essential part of a ‘Europe of the regions’, the British government hoped to use it to achieve a renationalisation of the European Community. The French government was much more sceptical towards subsidiarity, pointing to the paradox that subsidiarity actually required a strong central authority to achieve its decentralising ends. The article concludes by arguing that the debate on subsidiarity reveals how ambitious and yet contested European integration had become by the early 1990s.