Discuss whether the principle of subsidiarity under Article 5(3) TEU and the recent case law of the Court of Justice of the EU on the law of citizenship fuel a constructive and necessary debate on how some of the EU’s objectives might be achieved at a lower cost for Member States’ autonomy.
The EU objectives under the Lisbon Treaty include the establishment of an economic union, promoting the wellbeing of citizens, offering citizens freedom without internal borders, and promoting equality and social justice. The subsidiarity principle under Article 5(3) TEU limits EU competence, in theory giving Member States (MS) greater autonomy to achieve these objectives. However, in reality, subsidiarity rarely impacts EU law, suggesting this principle does not fuel a constructive debate for this, although certainly a necessary one is fuelled. Moreover, recent citizenship case law has led to incoherence in achieving EU objectives, failing to fuel a constructive debate for autonomy in this area. However, this debate is not necessary here given the integrationist objectives of the EU.
Art 5(3) TEU states that the EU should only act if and in so far the objective cannot be achieved at MS level, but can be better achieved at EU level. In practice, the Subsidiarity Protocol states that the Commission must consult widely and justify all draft legislative acts with regard to this principle. It is up to national Parliaments to monitor the compliance of EU institutions with subsidiarity. This is through the early warning mechanism in which Parliaments have an 8-week window to respond to an EU legislative proposal with a ‘reasoned opinion’ arguing the principle of subsidiarity is breached. The Commission must consider this opinion and review the proposal if enough states respond.
i) Fails to fuel a constructive debate regarding MS autonomy
The Protocol does not practically enable MSs to monitor compliance with subsidiarity. The 8 week window is small, and the Commission will only review the proposal if more than a third of votes produce reasoned opinions. Even if this unlikely stage is reached, the Commission can still pass the proposal even if subsidiarity is breached, demonstrating that there is no constructive debate surrounding MS autonomy, but rather an EU-controlled system which places little weight on MS opinions.
This position can also be seen in the CJEU’s approach to Judicial Review on subsidiarity grounds. Öberg notes that the CJEU has never annulled a measure on these grounds. This may be because the test here is a comparative efficiency test; it is difficult to argue that a decision would be better at a lower rather than higher level. Öberg notes that the Edinburgh Guidelines have meant the two limbs of Art 5(3) are not cumulatively required, but only that the objective is better achieved at EU level, even if it is possible at a national level. The Court does not even require the EU legislator to justify how proposals conform to Art 5(3), a statement in the Preamble which asserts the need for EU action seems to suffice (Vodafone and Phillip Morris). In contrast, AG Kokott’s Opinion in Morris advises EU legislators to avoid set formulas and instead include substantial arguments to justify action at EU level. This may potentially encourage constructive debate on MS autonomy, but this will likely be insufficient; it seems that subsidiarity is simply a political appeasement tool, assuring MSs that their interests are considered, when in reality, the EU is able to operate unrestrictedly.
ii) Fuels a necessary debate
The TEU Preamble notes that for European integration, decisions should be made as close as possible to citizens. As there are many democratic bodies in the EU, the level of government closest to citizens is important in creating a healthier democracy. Subsidiarity requires dialogue; even if the EU is in a better position to enact the law, the objective may be better achieved at state level where the connection to citizens is stronger. The debate surrounding subsidiarity is thus necessary for MS autonomy in achieving EU objectives.
Article 20 TFEU establishes citizenship of the Union for MS nationals. This includes rights in Article 21 TFEU which creates a right for member state (MS) nationals to move and reside freely in MSs (Art 21). Zambrano exemplifies this; citizenship could create residence rights in a wholly internal situation, attesting to AG Sharpton’s argument that the ‘right to move’ and the ‘right to reside’ are two separate rights. Moreover, Article 18 TFEU, taken with Article 20(2) and 21(1) provide citizens with equal protection by the state even if they not economically-active or self-sufficient (Sala).
However recent case law demonstrates that Zambrano is limited to situations where citizens would be deprived of the genuine enjoyment of their rights. The CJEU in McCarthy and Dereci ruled that rights are not conferred to third country nationals (TCNs) residing with EU citizens who have never exercised their free movement rights. Moreover, the introduction of the Citizens Rights Directive (CRD) has favoured national concerns regarding the economically inactive, thus the CJEU has retreated from the Sala position. In Dano, the citizen must be lawfully resident in compliance with the CRD, not just under national law, to claim social assistance. These stricter measures suggest greater autonomy is offered to MS in achieving EU objectives.
i) Fails to fuel a constructive debate
The new case law causes injustice for citizens. It is arguable that Sala and Dano can be distinguished on their facts. But this reasoning still leads to confusion as in Alimanovic, it was held that jobseekers could be denied social assistance without any assessment of their individual situation, suggesting facts are not relevant. This creates confusion and makes it easier for MSs to arbitrarily justify refusal of social benefits. There is ultimately an irrebuttable presumption that individuals applying for social assistance are an ‘unreasonable burden’ on national systems. Given that the EU objectives include promoting equality, social justice and the wellbeing of citizens, the reality of the CJEU deference to national law has inevitably failed to fuel a constructive debate in achieving these.
The same can be said for the new case law on Art 21 rights. Shuibne suggests that the CJEU should weave its case law together and apply one test, rather than using both ‘internal situation’ and ‘genuine enjoyment’ tests depending on the facts. This view is convincing; changing the degree of protection in some cases and not others results in uncertainty and unjust outcomes. This is evident in McCarthy, a disabled child was held to not be a dependent of their TCN parent, whereas in Zambrano, the children’s interests were considered. To truly fuel a constructive debate on achieving EU objectives of social justice and wellbeing via the MSs, the CJEU should refrain from the cross-border analysis, and instead apply a consistent test which priorities the fair and consistent treatment of individuals.
ii) Fuels a debate which is unnecessary
It is argued that recent case law attempting to achieve EU objectives at a lower cost for MSs is unnecessary as it circumvents the purpose of the objectives. Citizen rights in MS are often set aside in favour of economic policy, thus the development of citizenship in EU law draws emphasis to a political union where individual rights are equally protected. Recent case law has weakened this protection, suggesting a debate on autonomy is unnecessary in this area. This is distinguished from the necessary debate on subsidiarity, where MSs have been limited in even challenging an EU legislative proposal on subsidiarity grounds.
In conclusion, both the principle of subsidiarity and recent case law on citizenship fail to fuel a constructive debate on how EU objectives might be achieved at a lower cost for MS autonomy. However, the subsidiarity principle does fuel a necessary debate on how the objectives can be better achieved using appropriate dialogue. On the other hand, citizenship case law has fuelled an unnecessary debate where MSs are given too much autonomy to inconsistently and arbitrarily apply rules at the expense of EU objectives.
The writer, Simrhan Khetani, is a law graduate from the University of Cambridge and future trainee solicitor at Akin Gump LLP. She has a keen interest in Equity and Trust law and will be pursuing this interest in her work as a solicitor.