Harold G. Jeffcoat
University of Missouri

Introduction:

The purpose of this paper is to examine the principle of subsidiarity as it appears in The Treaty on European Union and The Treaty of Amsterdam. Of particular interest is the emergence of the principle of subsidiarity as a political means to curb the supranational trend of the European Community, while at the same time it serves the European Court of Justice as a justiciable principle of Community law. This paper will argue that the principle of subsidiarity is justiciable. Yet, contrary to its critics the European Court of Justice has exercised restraint in applying subsidiarity to its interpretations of Community law and legislative action. This paper begins with a brief background of the process with led to the insertion of subsidiarity into The Treaty on European Union and The Treaty of Amsterdam. This will be followed by a review of the leading academic literature on the concept of subsidiarity, some thoughts on its justiciability, a review of recent case law and my conclusion.

It has been claimed that subsidiarity is the "word that can save Maastricht." Saved may be too bold a claim, even for the European Independent, the newspaper that carried the slogan in its coverage of the events leading up to the drafting of the Maastricht Treaty. Subsidiarity was not a particularly novel concept at Maastricht. However its prominence in Article 5 (ex Article 3b) and its subsequent reinforcement in the Protocols annexed to the Treaty of Amsterdam do signify if not a turning point then at least a coalescing of the process of European integration. Subsidiarity marks the stage of development of the "constitution of Europe" where the political challenges of integration converge with the latent claims of Member State sovereignty. It is, as one observer of the European Union recently described, "the hard nut" of European Union constitution building.

The question that seems most perplexing about subsidiarity involves less the matter of its justiciability by the Court than the extent to which the Court may go in enlarging and strengthening the reach of Community law. Since subsidiarity itself emerged through the political process of Treaty development, ambiguity persists as to whether the Court of Justice will restrict its application to review of legislative process or to interpretation of substantive law. The scholarly literature on subsidiarity contains arguments admonishing the Court to exercise judicial restraint while generally affirming the efficacy of subsidiarity as a justiciable principle of Community law whether interpreting procedural or substantive legal issues.

Emergence of Subsidiarity as a Principle of Community Law

The Draft on Political Union developed in Maastricht in November 1991, offered the following text taken in part from language included in the Single European Act:

The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In the areas which do not fall within its exclusive jurisdiction, the Community shall only take action, in accordance with the principle of subsidiarity, only if and in so far as those objectives can be better achieved by the Community than by the Member States acting separately because of the scale or effects of the proposed action.

Any action by the Community shall not go beyond what is necessary to achieve the objective of the Treaty.

This general language, with some modification, became enshrined in the Treaty on European Union and the insertions and amendments to the Treaty establishing the European Community. The Interinstitutional Agreement of 25 October 1993 between the European Parliament, the Council and the Commission contained more detailed procedures for the implementation of the principle of subsidiarity into the Protocol on the application of the principles of subsidiarity and proportionality annexed to the Treaty of Amsterdam in 1997.

The strong and for the most part strident language used by the High Contracting Parties in the Protocol leave little doubt regarding the perceived need to accommodate the competing interests at the negotiating table. The drafters of the Protocol stated unequivocally their determination to "ensure strict observance and consistent implementation by all institutions." Affirming the conclusions reached at the Birmingham European Council on 16 October 1992 as well as the overall approach of the European Council deliberations in Edinburgh on 11-12 December 1992, the High Contracting Parties called on each institution to ensure compliance with subsidiarity and proportionality. No action by the Community would be allowed to go beyond what is necessary to achieve Treaty objectives. In its application all actions must maintain in full the acquis communautaire and balance among Community institutions. The principle of subsidiarity, however, did not call into question the power conferred on the European Community by the Treaty, as interpreted by the Court of Justice, but spoke specifically to areas for which the Community does not have exclusive but concurrent competence. Conceived as a guide to the exercise of power at Community level, subsidiarity was viewed as dynamic in application, expandable where circumstances required Community action; and yet restrictive, capable of being discontinued when no longer justified.

Community measures were to leave as much scope for national decision as possible. Within the context of Community law, action taken by the Community must consider well-established national arrangements and the organization and working of the legal systems of the Member States. The High Contracting Parties went as far as stating that prior to implementation of Community measures, alternative measures should be sought with Member States that would achieve the objectives of the measures. The Member States, in turn, were held to strict observance of Article 10 (ex Article 5), which required the taking of all appropriate action to ensure the fulfillment of obligations under the Treaty and by abstaining from any action which could jeopardize the attainment of Treaty objectives.

In tone and substance Article 5 (ex Article 3b) and Protocol attempt to define the vertical relationships between the Community and Member States. Each seeks to reassure Member States of their sovereignty while reaffirming the competencies of the Community. "Without prejudice to its right of initiative," wrote the drafters, the Commission should consult widely before proposing legislation. Whenever possible it was required to publish consultation documents and to explain in memoranda attached to its proposals details as to the relevance of the proposed measures. It is the duty of the Commission to hold down and to allocate costs, proportionately. The Commission will also be held accountable to the European Council and the European Parliament and Council for reporting its application of Article 5 (ex Article 3b) of the Treaty, annually.

At the core of Community and Member State interaction, the principle of subsidiarity may become what I would suggest as an "instrumental modality:" "Instrumental" in the sense that as the High Contracting Parties conceived it as dynamic and as a guide to action subsidiarity will be very broadly interpreted by the European Court of Justice; "modality" in the sense that the Court in adjudicating disputes may consider subsidiarity, along with the principle of proportionality, as both necessary and contingent attributes of cooperative integration.

Subsidiarity in the Scholarly Literature

In form and content the principle of subsidiarity has evolved since its inception in the Single European Act through various iterations each directed toward ameliorating conflicts and controversies that have developed during the process of European integration. Subsidiarity has attracted considerable attention in the scholarly press. In the main critical thinking about the justiciability and instrumentality of the principle has focused upon its probable use by the Court and, secondly, its place in the political evolution of the European Union. Scholars agree subsidiarity and proportionality were necessary to the process of Treaty building. Nevertheless, there is no clear consensus about how the European Court of Justice will use the principle to shape relations between Community institutions and Member States and their citizens. The current ambiguity about its use is apparent in the scholarly literature.

In the main, the literature on subsidiarity seeks to locate the concept within the context of the political dynamics behind and beneath the emergence of The Treaty on European Union and The Treaty of Amsterdam. In November 1993, two years after its inception at Maastricht in the Netherlands, The Treaty on European Union came into force. The TEU transformed the European Community into the European Union and significantly expanded Community competence in spheres of activity associated with the internal market; the promotion of harmonious and balanced economic and social development; and the development of sustainable, non-inflationary forms of enterprise. Economic performance became measured not only in terms of increased domestic productivity, but also according to criteria that assessed reducing unemployment, raising the standard of living and promoting economic and social cohesion among the Member States. Enlargement of the EU remained as part of the agenda, but well behind matters that seemed to look inward toward the more efficient functioning of institutions and the welfare of citizens of the Union.

Despite the significance of expanding the sphere of Community competence, it would be an overstatement to consider the emergence of the Treaty as "a sustained attempt to address the problems caused by both the functional and the geographical enlargement of the EC." As Weatherhill has observed, "the intergovernmental pillars may be taken as mistrust of the application of the EC structure to a wider Union." Mistrust, perhaps. Certainly, skepticism regarding the expansion of Community competence informed the negotiations at Maastricht. For those who feared the implications of unchecked supranational European integration, the advent of the Union only fueled concern for the apparent diminishment of Member State power. Indeed, the insertion of language into the draft Treaty which called for a process leading toward European monetary union, as Craig and DeBurca have written, forced the European Council to hold its second Intergovernmental Conference on the subject "apparently in order to balance economic integration with political integration." The word "federal" which appeared in the draft documents of the Treaty was subsequently deleted in favor of the more conciliatory "ever closer union" language taken from the Preamble to the EEC Treaty. Efforts at the 1992 IGC to curb "federal-like" integration strategies led to the inclusion of language in the draft which would compel Community institutions to take decisions as close as possible to the citizen with respect to the principle of subsidiarity.

The principle of subsidiarity attempts to ensure that Community institutions take decisions as closely as possible to its citizens. Furthermore and of equal importance the principle entails a form of scrutiny as to whether the reach of Community action into the domain of the Member States is justified. Except where the Union possesses "exclusive competence," subsidiarity restricts unwarranted intervention in national, regional, or local levels. The formal inclusion of the principle into the Single European Act, years earlier, aimed to ameliorate political tensions, then, among those with different perspectives regarding European integration as well as to assure the Community the legal basis required to advance the objectives of the Act. Similarly, "Subsidiarity, like federalism itself," wrote one commentator regarding its more prominent status in the TEU, "has the potential to accommodate both the needs for uniformity through supranational cooperation and the desire to retain sufficient local control." Others have interpreted it along with the doctrines of proportionality and attributed powers, as the means to transform the Community into a more "constitutional" body. And for still others subsidiarity functions as an integral link in a network of Community principles concerned with the separation and distribution of power.

Among the many scholars that have commented upon the multifaceted aspects of the principle Cass claimed that subsidiarity could bring about substantial reallocation of power within the Community. Even though as Case claims reallocation may add to or retard the cohesiveness and unity sought for by advocates of centralization. In as much as the principle of subsidiarity squarely addresses the political concerns of those who advocate strong local control, Cass takes the perspective that as written in the Protocol, subsidiarity opens out greater possibility for the substantial enlargement of Community power. In contrast, Alan Dashwood noted concern that the principle of subsidiarity may be too easily appropriated as a tool for centralization of power. For Dashwood, its function is solely to provide a guide to the decision whether or not to use the actual powers given to the Community, in situations where the objective in question may be pursued by Member States, independently, using powers attributed to them, alone. While Dashwood would agree with Cass as to the utility of the principle of subsidiarity in papering-over political differences among the High Contracting Parties, for him the real purpose of the principle is clear: "Community action should only be preferred to Member State action, if this will bring about demonstrable advantages." Subsidiarity is therefore that creature of the limited attribution of powers, not the long-arm reach of federal-like authority.

Similarly, Antonio Soares considered subsidiarity as a necessary "legal instrument written into Community constitutional law with the aim of opposing certain centripetal tendencies caused by the application of the material content of determined technical figures such as pre-emption." For Soares the doctrine of pre-emption, as with supremacy and proportionality, figures largely in the normative structure of EU constitutional law. Often seen as antagonistic, Soares viewed the principle of subsidiarity and pre-emption as largely compatible. Member States ought to be able to enact regulatory provisions stemming from national and community legal orders, "as long as it were possible to simultaneously comply with the demands stipulated by both levels of regulations." The principle of subsidiarity under such a jurisprudence would be considered less as a bridge between conflicting political regimes and more a modality for reconciling conflicts of power. Grainne De Burca summarized the shifting perspectives about this principle. "Despite its importance, subsidiarity is, as the abundant literature on the subject amply demonstrates, a cloudy and ambiguous concept which is readily open to instrumental use. The principle is politically complex and legally uncertain."

In summary then in the process of European constitution building the principle of subsidiarity entails several interrelated functions. First and foremost, it functions to limit competence of EU institutions. Second, it is used to allocate power within the Member States and among Community institutions. Yet as the literature suggests, it is a principle capable of "instrumental" use by the European Court of Justice as well as various institutions of the Community. Just how the Court in particular will shape the range and scope of its use remains an open question.

Justiciability

It is due precisely to its complexity and ambiguity that some legal scholars have questioned whether the principle of subsidiarity can be reasonably justiciable. For Toth, however, the question is less problematic. Subsidiarity comes into play only where the exclusive competence of the Community ceases. Conversely, "where the competence of the Community begins, that of the Member States ends." According to this view "exclusive competence" derives from the transfer of power from the Member States to the Community, whether or not the Community has ever exercised that power. DeBurca and Craig read Toth’s interpretation of exclusivity as suggesting that subsidiarity couldn’t apply to any matter covered by the original EEC Treaty. Therefore, subsidiarity could not apply to questions involving the free movement of goods, services and persons, and capital; the Common Commercial Policy; competition; the Common Agricultural Policy; Transportation Policy; and the common organization of the fisheries. However in recent cases, the ECJ has relied to some extent upon Article 5 (ex Article 3b) in adjudicating cases that deal with commercial policy, competition, and the Common Agricultural Policy. In contrast to Craig, Steiner rejected Toth’s broad view of "exclusive competence." "There are few areas of activity in which Member States do not retain some degree of competence…. One is forced to the conclusion that the only areas in which the Community has exclusive competence for the purposes of Article 5 (ex Article 3b) are those in which it has already legislated…. To allow whole areas of activity to escape scrutiny under paragraph 2, simply because the Community has potential competence in these areas, would surely undermine the very purpose for which this provision was intended." Only where the Community has already exercised its power to act will it enjoy exclusive competence. However, the Community may exercise power in many ways including regulation, directives, and even decisions of the ECJ. Treaty provisions delimit exclusive competence only rarely, and then in ways that may often raise questions of interpretation.

In one respect the divergent views advanced by Toth and Steiner serve to bracket the legal issues which the European Court of Justice will eventually contend. How will subsidiarity interact with other legal principles that shape the distribution of power within the Community? How will Article 5 (ex Article 3b) be interpreted and which institutions will decide its use? Perhaps in anticipation of judicial review of Article 5 (ex Article 3b), the Commission has communicated its own position on the matter to the Council and the European Parliament. For the Commission areas of exclusive competence derive not only from the specific provisions for such action contained in Treaty provisions, but from a general "duty" to act. The Commission interprets its duty to absorb what DeBurca described as the "block" of exclusive powers that contain a broad range of actions generally falling within free movement of goods, services, persons, and capital. In stating its position the Commission has made clear that it will pursue the expansion of its competence just as far as its "duty" will allow. If the Court validates such a claim then certainly Cass would be correct in holding that subsidiarity portends very wide application.

It is generally accepted that the European Court of Justice possesses the ultimate interpretive authority under Article 230 (ex Article 173). The ECJ has sent signals that in adjudicating both procedural and substantive issues it will exercise restraint.

While there is no Supremacy Clause in The Treaty on European Union and The Treaty of Amsterdam, as in the Constitution of the United States, the Court has established in a line of cases the primacy of European Community law. The principle of Supremacy becomes justiciable when conflicts arise between Community law and national law. Where enabling Community and Member State legislation conflicts, it would seem that the Court would be faced with adjudicating the question of competence to act prior to questions regarding supremacy. In the absence of a clear test of the comparative efficiency and proportionality of the proposed action by both parties, it would also seem that the principle of subsidiarity would nullify the unwarranted imposition of Community action on the Member State. The Community is to take action only if the Member State cannot achieve the objectives of the action, but only if the Community can effectively achieve such action. The question of the legitimacy of Community action, which entails issues of supremacy, would not prevail absent meeting the tests of proportionality, comparative efficiency and scale of effects.

This is not to suggest that the function of the principle of subsidiarity is to prohibit intervention into the legal domain of national law. Tests of proportionality, comparative efficiency and scale of effects act as curbs against inappropriate Community action. In this respect subsidiarity could be interpreted as a partial means of ensuring decentralization of power. Directives, in a similar way, function as a means of decentralization and like the absence of a supremacy clause, Article 249 (ex Article189) does not specify the function of directives. The Council and Commission may issue directives in order to carry out their respective roles within the Community order. Directives are especially instrumental in areas where national law is complex and difficult to adapt to Community action. Ideally as the means to effect the harmonization of laws, directives leave largely to the Member State the form and methods of implementation. Consequently, Member States are required to adapt their laws only to the extent necessary to appropriately effect the directive. As Sacha Prechal observed it was not surprising that in the Declaration on Article 100a of the EEC Treaty annexed to the Single European Act, "the Member States expressed their preference for directives as instruments of harmonization of laws above the use of regulations." "Similarly… at the Edinburgh Summit the Member States agreed that the principle of proportionality codified in Article 3B (third paragraph) of the EC Treaty should imply that wherever legislative intervention by the Community is required, preference should be given to directives above regulations and framework directives above detailed measures." Furthermore, the use of directives to implement Community legislation through the organs of government of the Member States acknowledges the utility of this form of Community action. As in cases dealing with supremacy, the Court will need to apply the test of comparative efficiency and proportionality in adjudicating whether subsidiarity is breached in cases involving individuals seeking to challenge national law or by Member States challenging the scope of Community legislation.

As already mentioned the principle of subsidiarity functions as a means to curb intervention by Community institutions into the domain of the Member States. It has been argued that Articles 308 (ex Article 235) and Article 10 (ex Article 5) expand Community competence. The positive duty to cooperate fully with Community institutions reasonably implied from Article 10 (ex Article 5) does not preclude the authority or indeed the duty to challenge the legitimacy of Community action regardless of the form of that action. Obligations arising from the Treaty may very well run counter to national law and obligations arising from actions of Community institutions may very well exceed the provisions of Article 5 (ex Article 3b). Again, the Court will need to consider the tests of subsidiarity, proportionality, and primacy of Community law in cases which raise the application of Article 10 (ex Article 5).

In contrast to Article 10 (ex Article 5), Article 308 (ex Article 235) acknowledges the complexity and diversity of Community affairs in the domain of the common market. It enables the Community to intervene where not specifically authorized to do so by the Treaty. This is particularly useful when the objectives of the Community related to the operation of the common market are at risk; or when alternative action is necessary in order to advance the aims of the Community in general regarding the operation of the common market. Such intervention must acquire sanction by a unanimous Council acting only upon a proposal by the Commission and then after consulting with the European Parliament. Clearly Article 308 (ex Article 235) can be viewed as the means to expand Community competence, but it is hardly an expeditious means, requiring unanimity, to respond to unforeseen shifts and trends in market economies. The need for expeditious action in response to the economic shifts of the common market was explicitly referenced by the High Contracting Parties in drafting the Protocol annexed to the Treaty of Amsterdam. The question of the justiciability of subsidiarity in relation to Article 308 (ex Article 235) will likely focus on the matter of what constitutes "appropriate measures." Appropriate measures may include the normative means of implementing Community action in the Member States such as directives. It may also entail the extent to which "appropriate measures" go beyond the form and method of implementing current directives. Article 5 (ex Article 3b), again, imposes tests that curb the reach of Community law. Challenges to Community power under Article 308 (ex Article 235) will likely require the Court to consider the "scale and effects" and "better achieved" provisos of the Protocol once in force. But while the Protocol expressly refers to the allowance of Community action within the limits of its powers to be expanded where circumstances so require, such action may be restricted or discontinued where it is no longer justified.

Recently the Court has ruled in several cases on the application of the principle of subsidiarity and proportionality. In each case the ECJ exercised restraint adopting the stance that the provisions of Article 5 (ex Article 3b) are general principles of Community law. Community institutions will be given broad discretion in exercising their responsibilities. While actions taken by the Council must be appropriate and necessary to achieve desired objectives the Court will interpret the instrumentality of Article 5 (ex Article 3b) in the context of whether Community action is "manifestly inappropriate" in regard to the objectives pursued. Furthermore in considering whether Community action meets the tests of subsidiarity and proportionality, the Court will be informed by the view that Community measures, absent the finding of exclusive competence, are "complementary" and intended to make useful contributions to the effects made by Member States.

In United Kingdom of Great Britain v Council of the European Union the ECJ considered arguments pertaining to the Commercial Policy. The United Kingdom Government brought an action for annulment of Article 1(2) of Council Regulation (EC) No. 519/94 of 7 March 1994, which established rules for imports from certain third countries. The applicants also sought the repeal of other regulations governing the import of certain classes of toys. The contested regulation included in its preamble the statement that while "the common commercial policy should be based on uniform principles," Regulations Nos. 1766/82 and 3420/83 still allowed exceptions and derogation's enabling Member States to continue applying national measures to imports of products originating in State-trading countries. The fourth recital in the preamble, provides that "in order to achieve greater uniformity in the rules for imports, it is necessary to eliminate the exceptions and derogation's resulting from the remaining national commercial policy measures, in particular the quantitative restrictions maintained by Member States under Regulation (EEC) No 3420/83. However," "owing to the sensitivity of certain sectors of Community industry," and "except for a limited number of products originating in the People’s Republic of China" those products should be subject to quantitative quotas and surveillance measures applicable at Community level.

The United Kingdom Government supported its application for annulment on several grounds: that the Council failed to give correct and adequate reasons for the contested regulations; that it failed to appreciate the facts or manifest error of appreciation; that it acted in an arbitrary manner regarding the setting of the contested quotas; and that in acting as it did, the Council breached the principles of subsidiarity and proportionality. The applicant alleged that no adequate reason was given for Article 1(2) in breach of the obligation under Article 253 (ex Article 190). The objectives of uniformity of the rules of import and of liberalization of import quotas, it was argued, should have led to the abrogation of any national quantitative restrictions. The introduction in Annex II to the contested regulation granting exceptions to liberalization required the Council to give specific reasons for such an exception. Merely referring to the "sensitivity of certain sectors of Community industry," without indicating the reasons for which sector of the industry were considered as "sensitive" was in the argument of the United Kingdom Government, inadequate and insufficient.

In stating its reasons for dismissing the application for annulment the ECJ followed its ruling in Germany v Council, reasoning that the statement of reasons offered by the Council contained a "clear description of the factual situation of the objective pursued." According to the ECJ, the Regulation was of general application, and consequently the Council was not bound to set out in the statement of reasons the information it took into account when concluding "certain sectors of Community industry were sensitive to imports from China." It was not required to supply an economic analysis of that sector of Community commercial policy. Since the Regulation was intended to abolish national restrictions and exceptions in order to complete the common commercial policy, the Council was not required to explain why some restrictions were imposed at Community level. It is only where "exceptional measures" require the imposition of restrictive measures confined to one or more regions, thereby derogating from the uniform nature of the common commercial policy, that the Council is required to provide specific reasons. "The abolition of all quantitative restrictions for the imports from non-member countries," reasoned the ECJ, "is not a rule of law that the Council is required to observe, but the result of a decision by that institution in the exercise of its discretion." Once the Council indicated its objective, such an objective "not exceptional" in nature, it does not need to explain the technical choices made including the arrival of quantitative quotas.

In rejecting the argument of the German Government that no rationale was provided in the preamble of the contested regulation, the ECJ ruled that the matter of subsidiarity and proportionality set out in Article 5 (ex Article 3b) was a general principle of the Community legal system. Expressed reference to the proportionality test in the preamble is not required. Proportionality is met with the objective to impose quantitative quotas "for a limited number of products originating in the People’s Republic of China" and "owing to the sensitivity of certain sectors of Community industry." "Where a measure is taken," ruled the ECJ, "to prohibit or restrict economic activity, it must be appropriate and necessary in order to attain the objective." Where a choice must be made between several measures, recourse must be had to the least onerous, and finally, that the disadvantages caused should not be disproportionate to the aim pursued. The exercise of discretionary power should not be manifestly inappropriate in regard to the objectives pursued.

In its conclusion the ECJ sent a strong signal regarding its stance toward the justiciability of Article 5 (ex Article 3b) as a general principle of the constitutional order.

"The Court cannot substitute its assessment of the onerous and least restrictive test for that of the Council or other measures by the Community, if the measures have not been shown to be ‘manifestly inappropriate.’ Community institutions have a broad discretion, the lawfulness of a measure can be affected only if the measure is ‘manifestly inappropriate’ in regard to the objective pursued. Moreover, when the Community legislature is obliged, in connection with the adoption of rules, to assess their future effects, which cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available at the time of the adoption of those rules. The Court’s review must be limited in that way in particular if the Council has to reconcile divergent interests and thus select options within the context of the policy choices which are its own responsibility."

In Kellinghusen v Amt fur Land Wasserwirtschaft Kiel joined with Ernst-Detlef Ketelsen v Amt fur Land und Wasserwirtschaft Husum, the ECJ heard two test cases on the question whether national authorities can require farmers benefiting from direct income subsidies as compensatory payments to pay for administrative costs where the relevant Community regulation provides that the amounts are to be paid in full to the beneficiaries. Council Reg. (EEC) No 175/62 of June 30 1992 established a support system for producers of certain arable crops. Council Reg. (EEC) No 805/68 of June 28 1968 established the common organization of the market in beef and veal, as amended by Council Reg. (EEC) No 2066/92. Each regulation contained language that the compensatory payments should be paid in full. When each applicant applied for payments both were assessed a fee pursuant to the Land Regulation on Administrative fees for Schleswig-Holstein. Plaintiffs lodged a complaint against those decisions on the grounds that the Regulations precluded the charging of fees. Defendants dismissed those complaints, taking the view that the Member States and their regional subdivisions retained the power to adjust appropriate rules on fees. Plaintiffs then brought suit in the Verwaltungsgericht, Schleswig-Holstein, where they argued that a prohibition of charging fees followed from the wording of the provisions of the Regulations; and also from the spirit and purpose of those provisions which aim was to have equal implementation of the compensatory payments in the Member States. Defendants argued that the provisions at issue were not to be construed as prohibiting Member States from imposing certain charges that would be inappropriate to the objectives of the Community measures. Defendants appealed to the rule of cooperation embodied in Article 10 (ex Article 5) of the Treaty and the principles of subsidiarity and proportionality.

The ECJ dismissed the claim of abuse of the principle of subsidiarity since at the time the case was brought Article 5 (ex Article 3b) was not in force. However the larger question brought before the Advocate General in the preliminary ruling was whether Article 15(3) of the contested Council regulation should be interpreted as prohibiting the authorities in the Member States from charging applicants administrative fees for processing their applications for support payments, if those fees correspond to the usual rates in the national law and are so low as to not deter applicants for support payments. Second, if affirmative on question one, then does Article 15(3) of Council the regulation infringe upon higher-ranking Community law, in particular the principle of cooperation in good faith under Article 10 (ex Article 5) and proportionality and subsidiarity under Article 5 (ex Article 3b). In the opinion of the Advocate General, the terms of the provisions are conclusive. By providing for the payment of the relevant amounts "in their entirety" and "in full" to the beneficiaries, the Regulations prohibit any deduction from the amounts received by the beneficiaries. The claim by the defendants, that if the Regulations prohibited charging administrative fees, they would breach higher principles of Community law, was rejected. Likewise the defense claims that the prohibition would violate the principle of cooperation and good faith and that it would constitute unnecessary interference in national administrative law under Article 10 (ex Article 5) were dismissed. The Advocate General reasoned that Article 10 (ex Article 5) requires that Member States take all appropriate measures to ensure fulfillment of the obligations of the Treaty. Appropriate measures may mean the prohibition of charging administrative fees. Article 10 (ex Article 5) was not viewed as a limit to the legislative competence of the Community and the principle of cooperation cannot preclude community institutions from making compensatory payments as means to achieve the aims of the Common Agricultural Policy. The Regulations in question were in accordance with the Principle of Subsidiarity. The Community has broad competence in the field of agriculture to work within a framework and within the limits of their competencies. The prohibition on administrative fees, which is to ensure uniform implementation of the CAP through compensatory payments, cannot be accomplished at national level. Such methods of implementation, at the discretion of the Community, are suitable and do not go beyond the necessary means to achieve the objections of the policy.

Conclusion

Whether viewed as a means toward the substantial reallocation of power within the Community or as a guide to the appropriate use of Community power, the principle of subsidiarity is now a fundamental constitutional principle within the legal order of the European Union. Its interpretation by the Court has not as yet confirmed the view of those concerned that the ECJ may use it to significantly expand Community power. Neither has the Court interpreted it as an effective argument by Member States in support of Member State power. Instead the stance taken by the ECJ has been one of moderation. Judgments and Opinions in Kellinghusen, Tremblay, United Kingdom v Council, and Eduard Dubois and Fils SA, reflect the instrumental modality of the principle in the sense that the Court views the principle of subsidiarity as a guide to discern the extent of Community power. It is as well a modality in the sense that the tests under Article 5 (ex Article 3b) are both necessary and contingent. Community action must be necessary to achieve the objectives of the Treaty. In its scale and effects the action of Community institutions may be complementary to well established national programs. The action taken must be proportional as to its intended effects. However where the Court has found that the action taken by Community institutions necessary to the effective implementation of Community policies and programs, it has been unequivocal in affirming Community competence. However, the action taken by the Community must be useful not onerous, not exceptional or manifestly inappropriate.

Critics of the ECJ may well continue to express concern that the ECJ will use the principle of subsidiarity to expand substantially the reach of Community power. To date, however, the Court has shown restraint in not substantially expanding Community competence or enlarging the power of the Member States. The Court, as in United Kingdom v Council, recognized that in order to effect the aims of the Treaty Community institutions must be given reasonable latitude in the design and implementation of its actions. The Court will not impose its own determination as to what constitutes appropriate measures. The process of effecting positive change throughout the European Community involves making choices about matters where the results may be desired but the range of possible outcomes unforeseen. Unless the action is manifestly incorrect the Court will allow the Community legislature and its agencies broad discretion to exercise the means at their disposal to achieve Community objectives.

Was subsidiarity the "word" that saved Maastricht? Perhaps, at least in the politics that shapes the domain of Treaty building. Subsidiarity does speak to the volatile issue of curbing the encroachment of Community power into the preserves of the Member States. In that respect, it is a principle of the constitutional order of the European Union that aims to limit Community power. However it is a principle of limitation only in that it enforces accountability, openness, reasoned and measured deliberation by the Commission, Council and agencies of Community governance.