What scope for subnational autonomy : the issue of the legal enforcement of the principle of subsidiarity
Faculty of Law
Perspectives on federalism
, p. 45-73
University of Antwerp
Abstract The transformation of a patchwork of Westphalian nation-states into a multi-level legal order where competences and responsibilities interlock, brings about the fundamental question as to who should do what? This paper argues that the principle of subsidiarity is one of the key components of a system of multilevel governance. Subsidiarity is commonly assumed to require power to reside as close to those affected as possible, but, from a legal perspective, requires the allocation and exercise of competences to adhere to the optimization of relative efficiency and democratic legitimacy in the specific case at hand. The paper will start with construing a legal conception of subsidiarity and how said principle performs a crucial function in securing legitimacy in a context of multilevel governance. Subsidiarity can thus help ascertaining the scope of subnational autonomous decision-making, if based on the set of arguments pertaining to efficiency and democratic legitimacy that together construe subsidiarity. The second part of the paper addresses the problem of legal enforcement. Increasingly, subsidiarity surfaces in constitutional texts, but its enforcement remains anemic. It is widely held in the literature - and judicial praxis - that subsidiarity is constitutionally underenforced, and supposedly rightly so since it is but a political rule, either non- justiciable or very marginally. I will argue that subsidiarity is a legal principle, and will demonstrate through comparative studies how precisely it can and ought to be enforced. From a comparative study of subsidiarity-like clauses such as art. 72 II of the German Grundgesetz, the peace, order, and good government clause of the Canadian Constitution Act, article 118 of the Italian Constitution, and article 5(3) of the Treaty on the European Union, Id like to engage with the possible strategies for enforcement, which include Better Regulation programs, procedural mechanisms such as the EU protocol n. 2, and judicial review. These mechanisms, and their interaction, further the compliance with the principle of subsidiarity. The conclusion will highlight possible future improvements to the enforcement of the principle of subsidiarity at the general level, and as applied to the EU. A better enforcement of subsidiarity may help determining a more justified scope of autonomous exercise of powers by governmental levels - subnational levels included.