The Law To Know

Institutional law · European Union · about 4 minutes

Subsidiarity and proportionality

The plumber and the right-sized wrench

← The hardest concepts in European Union law

In one breath

In areas that are not exclusively its own, the Union may act only if the objective cannot be sufficiently achieved by the Member States and can be better achieved at Union level; that is subsidiarity. Proportionality requires that the content and form of any Union action go no further than is necessary to achieve the Treaty objectives.

The picture

The plumber and the right-sized wrench

A tenant has a leaking tap. The household first tries to mend it itself, and a plumber is called only if the leak is too big or runs through the whole building, where a single fix is plainly better than many. That is the first question: who is best placed to deal with this problem? A plumber who is better placed has a reason to be there.

The second question is how much he should do. Even an invited plumber who needs only a washer should not tear out the kitchen. The tool must fit the job, and the repair should go no further than the leak requires. Subsidiarity asks whether the plumber should be called at all; proportionality asks what he may do once he is there.

Where the picture stops working

The household can check the plumber’s work on the spot, whereas the Court of Justice reviews subsidiarity gently, mostly by asking whether the institutions gave reasons and had a basis for their choice. Proportionality is also not confined to Union acts: the Court uses it against Member State measures that restrict free movement. And the plumber has no say in who counts as better placed, since in the real system the Member States themselves, through the Council and their national parliaments, take part in that judgment.

How it really works

  1. 1Know where the rule comes from. Both principles are in Article 5 of the Treaty on European Union, with a Protocol on subsidiarity that gives national parliaments a part in policing it. Their application is refined by the Court’s case law.
  2. 2Check whether subsidiarity applies. It does not govern areas of exclusive Union competence. Proportionality, by contrast, governs all Union action.
  3. 3Apply the subsidiarity test: the objective of the proposed action cannot be sufficiently achieved by the Member States, at central, regional or local level, and by reason of its scale or effects can be better achieved by the Union.
  4. 4Apply the proportionality test in the usual formulation: the measure must be appropriate for attaining the objective and must not go beyond what is necessary to attain it.
  5. 5Expect a limited review. The Court allows the legislature a wide margin in complex policy choices, and tends to ask whether the measure is manifestly inappropriate. Failures of subsidiarity are mostly argued as failures to give reasons.

Why people get it wrong

  • Reading subsidiarity as a rule that the Member States should do everything they can. It permits Union action where the objective is better achieved there.
  • Treating the two principles as one. Subsidiarity is about whether to act; proportionality is about how far and in what form.
  • Applying subsidiarity to exclusive competences, where it does not apply.
  • Forgetting that proportionality also constrains Member States when they invoke public interest grounds to restrict free movement.
  • Expecting frequent annulments. A Union act is rarely struck down for breaching these principles, because the review is deferential.

A worked example

The facts are invented

Imagine a proposed act on the cross-border sale of a certain household appliance. A Member State objects that its own safety rules already work. The institutions explain that the appliances are sold across the whole market, that differing national rules block trade, and that no single State can fix that alone. This is a plain subsidiarity point, and the statement of reasons matters, since the Court asks whether such reasons were given.

The same State then objects that the proposal forbids every old design, not only the dangerous ones. That is proportionality. The question is whether a lighter measure, such as a labelling duty or a ban on only the unsafe models, would have achieved the same safety aim. If so, the broad ban looks like going further than necessary; if not, the measure stands. The two objections raise different questions and are answered separately.

Try it

A Member State argues that a Union measure is invalid because it forbids a whole product range when a warning label would have been enough to protect consumers. Which principle is mainly engaged?

Landmark authorities

Read the sources themselves; this list is a starting point.

  • Treaty on European Union, Article 5(3) and (4), with the Protocol on subsidiarity and proportionality
  • United Kingdom v Council (Working Time Directive), Case C-84/94, 1996
  • R v Minister of Agriculture, ex parte Fedesa, Case C-331/88, 1990

Where to go next

More hard concepts in European Union law

This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.