Vassilios Skouris on use of subsidiarity by European Court of Justice

Yesterday's post already mentioned the high ranking conference on subsidiarity which took place last Tuesday and Wednesday, in the margins of which interesting remarks were made by Wolfgang Schüssel. But the speech by Vassilios Skouris on "the role of the principle of subsidiarity in the case law of the European Court of Justice", is also certainly worth mentioning.

Skouris, President of the Court of Justice since 2003, emphasised that the principle of subsidiarity cannot be adjudicated “in the sense of a pre-existing political, philosophical or theological concept”, but only in the way as it is laid down in the EC Treaty and the Subsidiarity Protocol.

The Court of Justice hence cannot call into question the competences as laid down in the Treaties ex post facto.

Skouris said that although the principle should perhaps play a pivotal role with regards to the proceedings of the Court, it has not left any remarkable traces in its rulings.

This is not because the principle is disregarded by the Court of Justice. The Treaty does not grant full fledged powers to the Community legislature, there are stringent criteria with regard to taking harmonisation measures: there must be differences in national laws which are likely to curtail fundamental freedoms.

Also, legal harmonisation should comply with the principle of proportionality, to which the principle of subsidiarity is closely linked.

Skouris argued that when all these criteria are met, the leeway for the Court of Justice is quite restricted with regards to performing an independent subsidiarity review.