Subsidiarity in the European Community's legal order

An analysis of its (non) application in the case of the directive on the ban of tobacco advertisement

Essay 2009 15 Pages

Politics - International Politics - Topic: European Union



1. Introduction
1.1. The subject
1.2. Methodology

2. Subsidiarity – how to put a principle into legislative practice
2.1. The German Model
2.2. Subsidiarity in the semi-federal system of the European Community

3. A fight for subsidiarity – the challenge of the ban on tobacco advertisement’s legal basis
3.1. The first directive
3.2. The Second Directive
3.3. What about subsidiarity now?

4. Conclusion

1. Introduction

1.1. The subject

The subject of this essay is the implementation of the subsidiarity-principle in the European Communities’ (EC) legal order. While EC’s laws have supremacy over na- tional laws and become a part of the national legal order, self-standing national laws are applicable where the EC has no legislative competence. In this aspect, the EC’s system is comparable to e.g. the German federal system. The essay will show that the EC’s legislative system balances the powers of the supranational and the na- tional level by certain legal instruments: The principle of “limited empowerment”, the distinction between exclusive and competitive competences and the necessity of a “legal basis” for every supranational legislative act. As their justiciability is essential for the lower levels’ protection from power centralisation (Callies, Christian, 2004 p.

5) the MS can litigate at the European Court of Justice (ECJ) “lack of competence” when the EC meddles in affairs for which it is not empowered. The theoretical imple- mentation as well as the – sometimes unsatisfying – practical application of these instruments is illustrated on the examples of two EC-directives on the ban of tobacco advertisements and the German litigation against them for “lack of competence”.

1.2. Methodology

“Subsidiarity” can be defined as “decisions are to be made by the lowest level, if pos- sible by the individual to be affected by the decision himself”. As a philosophical axiom, “subsidiarity” covers many perspectives like balancing a religious establish- ment’s authority and the individual conscience, protecting individual liberty from over- bearing state authority etc. In a democratic federal state like Germany or in the EC’s “semi-federal” system of shared powers between a supranational and national levels, subsidiarity is the principle by which power and influence of the different levels is or- ganised (Baumgartner, 1997). This means that political decisions in general are to be made on local level while the higher level’s competence and authority is restricted to decisions which affect general interests. As modern states embrace the “rule of law” and political decisions are mostly issued by passing legislation, “subsidiarity” has to be implemented in a federal state’s legislative system by suitable legal instru- ments. Their effectiveness, however, depends on their application in practice.

2. Subsidiarity – how to put a principle into legislative practice

2.1. The German Model

In the German federal system the municipalities are entitled by Art 28 (2) of the Ger- man Constitution (“Basic Law” –GG–)1 to decide “all affairs of the local community in their own responsibility.” Responsibility for all state obligations is guaranteed to the German federal states (“Lander”) by Art 30 GG. This is substantiated by granting the executive (Art 83 GG) and legislative (Art 70 (1) GG) powers to the Lander. Federal responsibility is exceptional but legitimate federal laws have supremacy over Lander laws (Art. 31 GG).

Abbildung in dieser Leseprobe nicht enthalten

The GG limits the Federation’s competences (“principle of limited empowerment”). Art 71 and 73 GG give some competences into the Federation’s exclusive respon- sibility. The Lander are not allowed to pass legislation on these issues, except where the Federation allows it. For other issues of competitive responsibility the Lander may pass legislation as long as the Federation has not done so (Art 72 and 74 GG). The Federation has not to prove that or why federal legislation on these is- sues is preferable2. However, the Federation is not allowed to meddle with issues which are not explicitly stated in Art 73 or 74 GG. Cases of legislative act which are “related” to one of the issues in federal responsibility (“annex responsibility”3 or re- sponsibility “virtue factually”4) are an exception to this rule5.

Every draft legislation has to state the “legal basis” of federal responsibility (principle of “legal basis”) and, if necessary, the reasons for assuming federal annex or “virtue factually” responsibility.

This is justiciable as the Lander can appeal to the Constitutional Court (Art 93 No. 2 and 2a GG).

As a result of the three legal instruments, the “lion’s share” of legislative compe- tences is, at least in theory, with the Lander. Thereby “limited empowerment”, exclu- sive and competitive competences and legal basis together ensure the federal power’s subsidiarity to the power of the Lander.

2.2. Subsidiarity in the semi-federal system of the European Commu- nity

The then Member States (MS) founded the European Economic Community (EEC) in 1957/58 as a Customs Union with agricultural and economic competences only. The EEC’s Council of Ministers (Council) and the European Commission (Commission) could pass self-standing legislation which has to be respected by the MS, but an im- plementation of the subsidiarity principle in EEC primary law was not thought neces- sary, due to the EEC’s limited competences.

Over time the EC’s responsibilities expanded. The Single European Act (SEA), to complete the Single Market, demanded legal harmonization by hundreds of legisla- tive acts in order to make the free movement of goods, services, persons and capital possible. After that the Economic and Monetary Union and finally the Political Union of the Maastricht Treaty made it necessary to clarify the relationship between sover- eign MS and a self-standing supranational legal order with supremacy over national laws.

The concept of a restricted albeit supranational EC controlled by nation states with unrestricted sovereignty was also challenged by the ECJ’s “case law”. In the case of “Factortame”6, (Bankowski, 1997) the ECJ ruled that, in spite of all traditions and procedures of British Law, British Courts were obliged to grant an injunction against an Act of British Parliament if this Act was possibly not in compliance with supreme EU-Law (European Court of Justice, “Factortame I”). Later the ECJ gave a sec- ond ruling that the Act of British Parliament was not in compliance with EU-Law and therefore not applicable (European Court of Justice, “Factortame II”). In effect, the ECJ overruled, based on EC-Law on fishery, the valid British legal order on the regis- tration of vessels, the use of British territorial waters as well as the long standing tra- dition of British Courts on legal protection.

The system of a self standing supranational legal order had developed towards a system not identical (Pollack, 2005) but comparable to that of a federal state like e.g. Germany. The Maastricht Treaty (TEU) therefore officially introduced “subsidiarity” in the EC’s legislative procedure (European Union, 2007).


1 All quotations from the Basis Law taken from (Di Fabio, 2007)

2 Federal legislative acts which are likely to affect Lander interests need the explicit approval of the Lander representatives in the second chamber of the German federal parliament (Art. 73 (2) and Art. 74 (2) GG)

3 Legislative acts that prepare or execute regulations on issues in the exclusive or competitive federal responsibility

4 Cases in which the Federation cannot fulfil its legislative duties without regulating another matter, which in itself is not in the federation’s responsibility, at the same time

5 In such cases the Federation must prove that there are good reasons to make the decision on the federal level

6 The EC had passed legislation on maximum quotas for fishery in all MS‘ waters. Factortame was a Spanish owned fishery company in Britain. Its ships caught the fish in British Waters but landed and sold it in Spain. The practice made it possible to sell fish in Spain without exhausting Spanish fishery quotas, at the expense of the British fishery industry (“Quota Hopping”).


ISBN (eBook)
ISBN (Book)
File size
518 KB
Catalog Number
Institution / College
South Bank University London – Faculty of Art and Human Sciences
A-Grade with Distinction
Subsidiarity European Community A-Grade Distinction



Title: Subsidiarity in the European Community's legal order