Subsidiarity as a Limit to the Exercise of EU Competences

The principle of subsidiarity is one of the most contested issues in European Law scholarship. While the debate of subsidiarity was initially focused on whether it was judicially enforceable and its impact on EU law,1 the discussion on whether subsidiarity is justiciable has now been settled by the Court of Justice.2 The subsidiarity debate has also for a long time revolved around the issue on how subsidiarity can be made operational. It has been generally alleged that subsidiarity’s weak conceptual contours3 has made it unworkable as a legal principle that restricts the exercise of Union competences, in particular under the broad remit of Article 114 of the Treaty on the Functioning of the European Union (TFEU).4 Those allegations are supported by a judicial record demonstrating that the Court has so far been unable to develop criteria with which subsidiarity can be applied to limit the exercise of EU competences. Observers have with good reason denounced the Court for not taking ‘subsidiarity seriously’.5 Those observers have not, however, yet developed robust criteria against which subsidiarity can be measured.