Which Way Europe? Interpreting the Principle of Subsidiarity.

The United Kingdom goes to the Polls on June 23rd 2016, more divided than ever over its roll within the European Union.  David Cameron has argued for Great Britain to remain within the EU after gaining ‘special status’ within the 28-nation bloc.  With great fanfare, Cameron has argued that Great Britain should be able to opt out of the EU’s founding ambition to forge an ‘ever closer union’ of the peoples of Europe. It will not be drawn into further political integration in a ‘formal, legally binding and irreversible way.’ Essentially Cameron is arguing for greater powers for national parliaments to block EU legislation.

Specifically the wording of the draft states: ‘It is recognised that the United Kingdom… is not committed to further political integration into the European Union.’

 As evidenced by the preambles to the Maastricht and Lisbon Treaties, Europe seeks to ‘create’ and to ‘continue the process of creating an ever closer union among the peoples of Europe.’  In effect, these preambles seek to form a federation similar to that of the United States, by attempting to further consolidate and centralize power.

Cameron’s arguments, now demonstrate a resistance to this ‘ever closer union’ as he wishes to place Great Britain within a looser system of allied nation states, by invoking the principle of subsidiarity to formulate his arguments against ‘ever-closer union’.

The principle of subsidiarity is enshrined in Article 5 of the Lisbon Treaty on European Union and aims at determining the level of intervention that is most relevant in the areas of competences shared between the EU and EU countries.  This may concern action at European, national or local levels.  In all cases, the EU may only intervene if it is able to act more effectively than EU countries at their respective national or local levels.

Subsidiarity and proportionality are corollary principles by virtue of conferral.  They determine to what extent the EU can exercise the competences conferred upon it by the Treaties.  By virtue of the principle of proportionality, the means implemented by the EU in order to meet the objectives set by the Treaties cannot go beyond what is necessary. 

 Under these circumstances, why is there such a fuss for Brexit?

 I have turned to the United States and especially to the Virginia and Kentucky Resolutions, authored by Thomas Jefferson and James Madison, and passed in response to the Alien and Sedition Acts of 1798, for enlightenment.  The Kentucky Resolution argued that each individual state has the power to declare federal laws of the United States unconstitutional and void.  The Kentucky Resolution added that when states determine that a law is unconstitutional, nullification by the states is the proper remedy.  The Virginia Resolution argued further for ‘interposition’, to express the idea that states have a right to interpose to prevent harm caused by unconstitutional laws.

In essence, the resolutions authored by Jefferson and Madison are now being played out in Europe, in support of arguments later expressed by John C. Calhoun.  Thus, can we not argue that Brexit is just a referendum to repeal the 1972 European Communities Act of Parliament?  The nullification, if you will, of the Lisbon Treaty preamble?

In Europe, we have the European Court of Justice (ECJ), which has transformed itself from a weak institution with little enforcement capabilities, into one of the strongest political actors in Europe and the leading proponent of European integration today. The ECJ has decided on a series of cases that have closely followed the foundational cases decided by Justice Marshall and the US Supreme Court.  Like the US Supreme Court, the ECJ has attempted to federalize the European Union by not only asserting the supremacy of community law, but also by granting individual citizens and lower courts the right to bypass their respective higher national and constitutional courts.

In fact the ECJ’s history can be categorized into three periods.  The first encompassed its formation through the landmark cases of the 1960s, including the Van Gend en Loos and Costa cases and lasted until the early 1970s.  Although many foundational cases were decided in this period, the ECJ remained a weak institution as few took notice of the potential ramifications of these decisions.

The second period continued until the 1980s.  During this period, the ECJ continued to expand on its foundational cases, and we can recognize that together the first and second periods represented the ECJ’s transformation into a political actor. To do so, the ECJ used a well-known judicial practice of expanding its jurisdictional authority by establishing legal principles to cases under its consideration. 

The third and final period started in the 1980s and continues to the present day.  During this period, the ECJ’s area of control gradually expanded through treaty amendments including the Single European Act of 1986, the 1992 Maastricht Treaty, the 1997 Amsterdam Treaty, the 2001 Treaty of Nice, and the 2007 Treaty of Lisbon.

National courts throughout the member States have had varied responses to the ECJ’s efforts.  But most notable are Germany and Italy, which have consistently questioned the democratic legitimacy of the Union, making the issue both legal and political.  As the ECJ has been the most powerful force for integration, the courts in the member States have evidenced the most opposition. Some of the national court responses have mirrored the same arguments made by John C. Calhoun on nullification; in a word, the EU remains a group of aligned, but ultimately sovereign member States, and a State can nullify an act of the general government if deemed unconstitutional.

Thus in order to understand the judicial fight in the EU more fully, we must return to the arguments and debates that raged within the United States during the early part of the 19th Century, especially the lessons learned from the pre-Civil War state-rights advocates, and particularly those of John C. Calhoun.

Calhoun’s understanding of federalism provides an alternative vision to the possibilities of federal organizations for emerging supra-national unions.  His arguments, and indeed his entire intellectual attack still resonates against the formation of large pluralistic super-unions that are based on the federal ideal as evidenced by the Maastricht Treaty and Lisbon Treaty preambles.

Larry Backer’s excellent article titled “The extra-National State: American Confederation Federalism and the European Union,” Columbia Journal of European Law 7, (2001) provides the point of departure, but to understand where the European institutions are heading, we also need to understand how Chief Justice John Marshall revolutionized the relationship between Congress and the judiciary, first through his concept of judicial review, and second through his ruling on federal judicial power.  Indeed his actions irrevocably changed the nature of power between the American States and the federal authority. 

Can the ECJ follow Marshall?  If not then State sovereignty is the issue that prevents the European Union from becoming a ‘United states of Europe’.  Also as long as the national courts stick to Calhoun’s playbook, ultimate authority will remain with the member States.  The argument seems logical, so I shall repeat my question:  Under these circumstances, why is there such a fuss for Brexit?