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Francisco Balaguer Callejón, The Relevance of Subsidiarity to European Integration in:

Jörn Axel Kämmerer, Markus Kotzur, Jacques Ziller (Ed.)

Integration und Desintegration in Europa | Integration and Desintegration in Europe | Intégration et Désintégration en Europe, page 137 - 156

1. Edition 2019, ISBN print: 978-3-8487-6131-9, ISBN online: 978-3-7489-0222-5, https://doi.org/10.5771/9783748902225-137

Series: Societas Iuris Publici Europaei (SIPE), vol. 13

Bibliographic information
The Relevance of Subsidiarity to European Integration Francisco Balaguer Callejón* Introduction: Subsidiarity as a principle and as a procedure on articulation of powers, a problematic relationship. Subsidiarity in its European dimension reflects an internal tension between its vocation as an inspiring principle of the whole structure of the Union and its con‐ dition as a technique for the articulation of competences. This internal tension does not allow directing its application in only one way. Subsidiarity is a funda‐ mental principle for the European integration project, proclaimed in the Pream‐ ble of de Treaty on European Unión, which declares: “Resolved to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity”, as well as in article 5.1, which states: “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality”. In its condition of general principle, subsidiarity is not merely a procedure on delimitation of competencies as it is the one foreseen in Article 5.3 TUE which states that “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objec‐ tives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by rea‐ son of the scale or effects of the proposed action, be better achieved at Union level”. On the contrary, the principle of subsidiarity has a broader scope, which is also projected on the principle of conferred powers and on the general relation‐ ship between the European system and national systems1. The difficulties that can be observed in its application through the political and jurisdictional mech‐ anisms foreseen in Union law, must be evaluated taking into account this broader scope of the principle that may affect the general interpretation of the compe‐ tences of the Union and also in the modulation of the application of Union Law against Member States law that can be done through the invocation of respect for the constitutional identity of States established in Article 4.2 TEU that, although I. * Professor of European Law (Catedrático Jean Monnet), Universidad de Granada. 1 On the principle of subsidiarity it is already a classic text that of Peter Häberle, Das Prinzip der Subsidiarität aus der Sicht der vergleichenden Verfassungslehre, Archiv des öffentlichen Rechts Vol. 119, No. 2 (1994), pp. 169-206. 137 it is inspired by a different foundation that the principle of subsidiarity, it has a similar orientation in its consequences2. It must be borne in mind that there is a certain contradiction between sub‐ sidiarity as a principle and subsidiarity as a competence delimitation procedure. While subsidiarity as a principle has a univocal meaning: the adoption of deci‐ sions by institutions that are as close as possible to citizens, subsidiarity as a competence delimitation procedure has a double meaning, a double face: it as‐ signs competence according to a functional perspective, to the institution that can best achieve the objectives pursued, even if it is not the institution closest to citi‐ zens. This contradiction explains some of the paradoxes that are generated in re‐ lation to subsidiarity in the European Union. While it is implicitly understood in the European debate that subsidiarity implies a “devolution” of competences to the States or a brake on European competence expansion, thus highlighting their understanding as a principle, the fact is that the technique of subsidiarity does not always allow this devolution or that brake, which generates a certain frustra‐ tion in relation to the efficacy of the principle of subsidiarity. In effect, the double face of subsidiarity as a competence delimitation proce‐ dure generates an inevitable internal tension that occurs, in reality, between the principle of subsidiarity and subsidiarity as a competence delimitation procedure (because one of its two facets coincides with the principle of solidarity). While the principle of subsidiarity would lead to a precise result: the exercise of the competence by States or their territorial structures, the technique of subsidiarity is not oriented to the purpose established by the principle of subsidiarity but to a different one, not necessarily compatible with it: that of achieving the objectives pursued by the EU. When these objectives can not be sufficiently achieved by the Member States or they can be achieved better, by the scale or effects of the proposed action, by the European Union, principle of subsidiarity in its strict sense, don't applies. So we could say that subsidiarity as a principle promises much more than it can deliver by means of the subsidiarity as a procedure on delimitation of pow‐ ers. This paradox is what explains much of the perplexity in which the study of 2 Known is the connection between the two principles in the Lisbon Judgment of the TCFA when configuring subsidiarity as a kind of "controlimite" in face of the Union Law.: “The principle of democracy as well as the principle of subsidiarity, which is also structurally re‐ quired by Article 23.1 first sentence of the Basic Law, therefore require factually to restrict the transfer and exercise of sovereign powers to the European Union in a predictable man‐ ner, particularly in central political areas of the space of personal development and the shap‐ ing of living conditions by social policy. In these areas, it is particularly necessary to draw the limit where the coordination of cross-border situations is factually required”, BVerfG, Judgment of the Second Senate of 30 June 2009 – 2 BvE 2/08 – para. 251. The Relevance of Subsidiarity to European Integration 138 subsidiarity in the European Union moves3, in which dissatisfaction is usually the dominant note in doctrinal constructions and in the political evaluation of the functioning of mechanisms that have been put in place for the application of the principle of subsidiarity4. To mitigate this frustration, it would be convenient to escape from an "all-en‐ compassing" conception of the principle that makes it a kind of "joker" suitable for any situation, since an excessive extension of its contours will surely be to the detriment of its definition and effectiveness. It must be borne in mind that, as Antonio D'Atena points out, the principle is already endowed with a remarkable versatility that proceeds from the multiplicity of its roots and from the axiologi‐ cal wealth derived from that multiplicity5. In any case, we can verify the exis‐ tence of a strong disproportion between the strong (and heterogeneous) axiologi‐ cal burden of the principle and its weak dogmatic construction. This unbalance manifests itself in many aspects, including guarantees. Hence, the importance of the differentiation between the different profiles of subsidiarity to address its dogmatic construction, as is the case of its consideration as a principle and as a specific technique of competence articulation. Subsidiarity as a competence articulation procedure Subsidiarity is specifically proposed as a criterion for the articulation of compe‐ tencies aimed at deciding who should exercise competence within the framework of concurrent competences. As indicated in Article 3 of the Protocol on the ap‐ plication of the principles of subsidiarity and proportionality, annexed to the Treaty of Amsterdam: "the principle of subsidiarity does not call into question the powers conferred on the European Community by the Treaty, as interpreted by the Court of Justice. The criteria referred to in the second paragraph of Article 3 b of the Treaty shall relate to areas for which the Community does not have ex‐ II. 3 See Francisco Balaguer Callejón, Il principio di sussidiarietà nella Costituzione spagnola e negli Statuti di autonomia, nella prospettiva europea, in Sussidiarietà e democrazia. Espe‐ rienze a confronto e prospettive. A cura di Gian Candido De Martin, CEDAM, Padova, 2009, pp. 47-84. There is an electronic version available on the Internet at: http://www.amministrazioneincammino.luiss.it/2007/06/25/il-principio-di-sussidiarieta-nell a-costituzione-spagnola-e-negli-statuti-di-autonomia-in-una-prospectiva-europea/. 4 As Javier Barnés, rightly points out, it has been expected more of subsidiarity than it, by itself, could give. Javier Barnés, La distribución de competencias entre la Unión Europea y los Estados, CDP, 13 (2001) p. 53. 5 Antonio D´Atena, Lezioni di Diritto Costituzionale, G. Giappichelli Editore, Torino, 2006, p. 86. On the ideological or cultural foundations of the principle in its constitutional sense, I refer, in totum to the splendid work of Paolo Ridola, Il principio di sussidiarietà e la forma di stato di democrazia pluralistica, en Cervati / Panunzio / Ridola, Studi sulla riforma costituzionale, G. Giappichelli Editore, Torino, 2001, pp. 193-258. Francisco Balaguer Callejón 139 clusive competence. The principle of subsidiarity provides a guide as to how those powers are to be exercised at the Community level". This same precept of the Protocol clearly demonstrates the double face of subsidiarity to which we re‐ ferred earlier: "Subsidiarity is a dynamic concept and should be applied in the light of the objectives set out in the Treaty. It allows Community action within the limits of its powers to be expanded where circumstances so require, and con‐ versely, to be restricted or discontinued where it is no longer justified"6 From this perspective, in the Protocol on the application of the principles of subsidiarity and proportionality, specific guidelines were established in order to determine when the Community intervention was appropriate7, as well as in relation to the form of the intervention itself8. The double face of subsidiarity gave rise to an initial controversy regarding its interpretation among those to whom it fed the hopes of a lower intervention of the community institutions for the benefit of the States and those to whom it sug‐ gested doubts about a possible expansion of the Community competences by virtue, precisely of the principle of subsidiarity. The first observed that subsidiar‐ ity should serve as a criterion of self-limitation of the community bodies. In such a way that this principle contains a series of criteria9, by which it would be trans‐ formed from a generic and abstract principle into a concrete test to assess the le‐ 6 As Javier Barnés, points out, there are two possible interpretations of the principle: the neg‐ ative, which prevents unnecessary Community intervention and the positive by which the Community must intervene to assist the Member States. See Javier Barnés, El principio de subsidiariedad en el Tratado de Maastricht y su impacto sobre las regiones europeas, Rivista Italiana di Diritto Pubblico Comunitario, 5, 1994, p. 825. 7 Thus, Article 5 of the Protocol states that "For Community action to be justified, both as‐ pects of the subsidiarity principle shall be met: the objectives of the proposed action cannot be sufficiently achieved by Member States' action in the framework of their national consti‐ tutional system and can therefore be better achieved by action on the part of the Communi‐ ty. The following guidelines should be used in examining whether the abovementioned condi‐ tion is fulfilled: - The issue under consideration has transnational aspects which cannot be satisfactorily reg‐ ulated by action by Member States; - Actions by Member States alone or lack of Community action would conflict with the re‐ quirements of the Treaty (such as the need to correct distortion of competition or avoid dis‐ guised restrictions on trade or strengthen economic and social cohesion) or would otherwise significantly damage Member States' interests; - Action at Community level would produce clear benefits by reason of its scale or effects compared with action at the level of the Member States". 8 Article 6 of the Protocol states that "The form of Community action shall be as simple as possible, consistent with satisfactory achievement of the objective of the measure and the need for effective enforcement. The Community shall legislate only to the extent necessary. Other things being equal, directives should be preferred to regulations and framework direc‐ tives to detailed measures. Directives as provided for in Article 189 of the Treaty, while binding upon each Member State to which they are addressed as to the result to be achieved, shall leave to the national authorities the choice of form and methods". 9 See Enoch Albertí, Autonomía política y unidad económica, Civitas, Madrid, 1995, p. 54. The Relevance of Subsidiarity to European Integration 140 gitimacy of the scope, character and intensity of community action. A test to which all actions that are intended to be carried out by the European institutions must be submitted, in order to a self-control that would be guaranteed, ultimate‐ ly, by the Court of Justice10. For authors who made a different interpretation, subsidiarity would have an essentially political nature11 and therefore would not be susceptible of being used as a control parameter by the Court of Justice12. Others argue, with a more nu‐ anced approach, that this control can be carried out, but only with regard to the motivation that the Community must provide to set in motion a subsidiary ac‐ tion13 or in cases of manifest error or misuse of power, in the sense that it should be taken into consideration the logic and coherence of the arguments14. It is precisely the lack of definition of competences caused by the way in which community competences are delimited, which makes the play of sub‐ sidiarity possible. Despite its limitations, subsidiarity has a clear sense in the le‐ gal order of the Union due to the way in which powers are distributed between the EU and the States, since this distribution is defined more by objectives than by subject areas. However, the same lack of definition of competences raised some problems for its application15 that gave rise in European instances to the need to rethink the delimitation of powers to clarify it and convert the principle of subsidiarity into a more operational principle. This step was attempted 10 Ibídem, pp. 54-5. 11 See Paolo Caretti “Il principio di sussidiarietà e i suoi riflessi sul piano dell'ordinamento nazionale”, Quaderni Costituzionali, n. 1 (1993) p. 18. 12 It is true that, as Torsten Stein indicates (for whom "the controllability of its observance by the Court of Justice is beyond doubt") the doubts surrounding an effective control of the Court of Justice have been based more on the role arrogated to itself as 'motor of the inte‐ gration' than in the lack of control criteria” See Torsten Stein, “El principio de sub‐ sidiariedad en el Derecho de la Unión Europea”, Revista de Estudios Políticos, n. 90 (1995) pp. 81 y 83. 13 This is the case of Angelo Rinella, “Osservazioni in ordine alla ripartizione delle compe‐ tenze tra Comunità europea e Stati membri alla luce del principio di sussidiarietà”, Quaderni Costituzionali, n. 3, 1994, p. 477. 14 For María Luz Martínez Alarcón "it does not seem appropriate for the Court of Justice to broaden its substantive pronouncements beyond the finding of manifest error or misuse of power if one does not want to distort a system that has attributed to European political institutions the decision on the concurrence of the requirements that allow the action of the Union within the framework of the non-exclusive competences”, María Luz Martínez Alarcón, El principio de subsidiariedad en el Tratado de Lisboa, Parlamento y Constitu‐ ción. Anuario, nº 13 (2010) p.185. 15 As Rainer Arnold, points out, although the exclusive competences of the Community are excluded from the subsidiarity mechanism, nobody knew exactly what those exclusive competences were, since there were no express provisions in this regard. See Rainer Arnold, Reflexiones sobre una futura Constitución Europea, Cuadernos Constitucionales, Valencia, 1994, p. 23. Francisco Balaguer Callejón 141 through the Draft of Constitutional Treaty and later through the Treaty of Lis‐ bon16. There is no doubt that, as Antonio D'Atena pointed out, the Draft of Constitu‐ tional Treaty reinforced in a very remarkable way the principle of subsidiarity within the scope of its guarantee procedures, both for the Member States and for the territorial entities17. The same could be said of the Treaty of Lisbon, which incorporated, reinforced, the early warning mechanism foreseen in the Draft of Constitutional Treaty18 as well as the jurisdictional control by the CJEU19. Final‐ ly, the Brussels European Council of 18 and 19 February 2016 adopted an Agree‐ ment to extend the powers of national parliaments conforming to the requests of the United Kingdom prior to the holding of the Brexit referendum. This Agree‐ ment did not come into force, due to the outcome of the Brexit referendum20. 16 See Francisco Balaguer Callejón, Las competencias de la Unión Europea y los principi‐ os de subsidiariedad y proporcionalidad, Revista de Estudios Autonómicos, nº 4 (2003) pp. 9-30. 17 See Antonio D´Atena, Modelos federales y subsidiariedad en el reparto de las competen‐ cias normativas, Revista de Derecho Constitucional Europeo, nº 3 (2005) pp. 209 y ss. 18 The Treaty of Lisbon incorporated, with respect to the Draft Constitutional Treaty, a spe‐ cific regulation for the case that, in the framework of the ordinary legislative procedure, the reasoned contrary opinions represent at least the simple majority of the votes attributed to the national Parliaments. In this case, if the Commission, after proceeding to a new study of the proposal, decides to keep it, the reasoned opinion of the Commission together with those of the national parliaments will be the object of study by the Council and the European Parliament. If, by a majority of 55 % of the members of the Council or a majori‐ ty of the votes cast in the European Parliament, the legislator is of the opinion that the pro‐ posal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration. 19 The Protocol incorporates, in its Article 8, together with the preventive control, of a politi‐ cal nature, the repressive control of a jurisdictional nature: The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the princi‐ ple of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 263 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof. In accordance with the rules laid down in the said Article, the Committee of the Regions may also bring such actions against legislative acts for the adoption of which the Treaty on the Functioning of the European Union provides that it be consulted”. 20 In the Conclusions, it was indicated that “the European Council agreed that the following set of arrangements, which are fully compatible with the Treaties and will become effect‐ ive on the date the Government of the United Kingdom informs the Secretary-General of the Council that the United Kingdom has decided to remain a member of the European Union, constitute an appropriate response to the concerns of the United Kingdom”. It is clear, from a legal perspective, that these provisions were not compatible with the Treaties and implied their disguised reform. As regards the national parliaments, a right of veto was established, which would be reached when the contrary reasoned opinions represented more than 55% of the votes attributed to them in the Protocol on the application of the principles of subsidiarity and proportionality annexed to the Treaty of Lisbon. See Francis‐ co Balaguer Callejón, Il modello europeo di integrazione e la sua incidenza sulle Corti costituzionali e sui Parlamenti nazionali, in Parlamenti nazionale e Unione Europea nella The Relevance of Subsidiarity to European Integration 142 In the meantime, the Commission has put in place procedures and practices aimed at incorporating criteria and guidelines that will make it possible to justify European actions more objectively21 and created a Task Force on Subsidiarity that presented its report to the President of the Commission the 10th July 201822. This Report has served as the basis for the Commission Communication of Octo‐ ber 23, 2018 on "The principles of subsidiarity and proportionality: Strengthen‐ ing their role in the EU's policymaking"23. Finally, the Austrian Presidency will hold a Conference in Bregenz on November 15 and 16, 2018 on "Subsidiarity as a building principle of the European Union" with the objective of debating "how a common understanding of the term ‘subsidiarity’ can be found and how this principle can be applied consistently"24. The formulation of subsidiarity as an articulation of powers procedure has a double nature, it is like an elevator that rises or falls depending on the needs, pre‐ senting aspects both problematic and positive. Among the latter, we must men‐ tion the flexibility that incorporates to the competences delimitation system, which is important for various reasons, among them because globalization is moving at an accelerated pace and is raising new problems that demand suprana‐ tional responses in many areas where the national solutions were previously suf‐ ficient. From this perspective, in its ascending sense, although it is not consistent with subsidiarity as a principle, the procedure on delimitation of powers can favour the reduction of the presence of national interests in the European debate and governance multilivello, a cura di Fulco Lanchester, Giuffrè, Milano, 2016, pp. 695-714. Also in: http://www.nomos-leattualitaneldiritto.it/wp-content/uploads/2015/05/Balaguer_concegno prin12-13_5_2015_ita.pdf. 21 Recovering in 2015 the criteria established in the Protocol annexed to the Treaty of Ams‐ terdam. See Tool #5 on Legal base, subsidiarity and proportionality: https://ec.europa.eu/in fo/sites/info/files/file_import/better-regulation-toolbox-5_en_0.pdf. 22 See “Active Subsidiarity. A new way of working” Report of the Task Force on Subsidiari‐ ty, Proportionality and “Doing Less More Efficiently”, in: https://ec.europa.eu/commission/sites/beta-political/files/report-task-force-subsidiarity-pro portionality-doing-less-more-efficiently_1.pdf. 23 COM (2018) 703: https://ec.europa.eu/info/sites/info/files/communication-principles-subsi diarity-proportionality-strengthening-role-policymaking_en.pdf. 24 “The principle of subsidiarity is a crucial cornerstone of our common Europe. This means that the European Union has to work on solutions for big challenges – such as migration, security and climate change. At the same time, the EU has to take a step back when it comes to questions where member states or regions are in a better position to take deci‐ sions. A consistent application of this principle would allow to bring the European Union closer to its citizens and improve their trust in the EU. Within the framework of the Presidency of the Council of the European Union, Austria wants to seize this occasion and discuss, together with representatives from politics, ex‐ perts and citizens, how a common understanding of the term "subsidiarity" can be found and how this principle can be applied consistently”: https://www.eu2018.at/calendar-event s/political-events/BKA-2018-11-16-Subsidiarity-Conf..html. Francisco Balaguer Callejón 143 strengthen the idea of common interests to help generate a European identity, compatible with national identities. It is true, however, that subsidiarity has gen‐ erally been the way for a greater claim of autonomy on the part of the Member States in relation to the European Union and, therefore, for a national claim against Europe. The component of principle has been promoted by the States to the detriment of the technique of subsidiarity, while the latter has been used by the EU to increase its powers, for paradoxical as this may seem. Certainly, subsidiarity as a competence articulation technique does not follow the parameters of the jurisdictional delimitation that is usually carried out by the constitutional courts. From that perspective, in favour of the CJEU it must be said that has a difficult application in the jurisdictional sphere25. The assignment of competences that is usually carried out in federal or politically decentralized States starts from a constitutional arrangement of the distribution of competences that is not modulated by a flexible principle such as subsidiarity26. Subsidiarity is moreover a dynamic principle, which allows, along the time, a change in the ar‐ ticulation of competences if circumstances lead to consider that state or Euro‐ pean action is more appropriate27. The subsidiarity as a technique of powers articulation, precisely because of its inherent flexibility, is oriented more to political than legal criteria. For this rea‐ son, it is the political mechanism of the Protocol that has the most relevance as a guarantee of subsidiarity because they are the political bodies of the Member States themselves that, in the first place, must debate in the internal and Euro‐ pean public sphere whether the measures to be adopted by the EU violate or not the principle of subsidiarity. We cannot expect, however, great possibilities from the jurisdictional control of subsidiarity as a technique of articulation of compe‐ tencies because it would be contradictory to establish a flexible and dynamic 25 Some authors consider, nevertheless, that the work of the CJEU in this area is very ques‐ tionable, to the point of affirming that has emptied of content the principle of subsidiarity. See Gabriél A. Moens and John Trone, The Principle Of Subsidiarity In EU Judicial And Legislative Practice: Panacea Or Placebo? Journal of Legislation: Vol. 41 (2015): Iss. 1, Article 2, p. 101. Available at: http://scholarship.law.nd.edu/jleg/vol41/iss1/2. 26 On the specific question of German federalism, see Lothar Michael, El Estado federal ex‐ perimental, Revista de Derecho Constitucional Europeo, n. 6 (2006) and the other works included in that issue, monograph on “The reform of German federalism”: https://www.ug r.es/~redce/REDCE6/ReDCEsumario6.htm. See also Werner Vandenbruwaene, What Scope for Subnational Autonomy: the Issue of the Legal Enforcement of the Principle of Subsidiarity, Perspectives on Federalism, Vol. 6, issue 2 (2014): http://www.on-federalism .eu/attachments/004_Volume%206%20-%20issue%202%20-%202014.pdf. 27 As stated in the Commission Communication of 23 October 2018 on The principles of sub‐ sidiarity and proportionality: Strengthening their role in the EU's policymaking: “The po‐ litical assessment of whether a particular EU policy instrument can be considered as adding value may change over time, depending on the political priorities of the moment” COM(2018) 703, p. 3, in: https://ec.europa.eu/info/sites/info/files/communication-principl es-subsidiarity-proportionality-strengthening-role-policymaking_en.pdf. The Relevance of Subsidiarity to European Integration 144 mechanism like this and, at the same time, to make it legally controllable28, be‐ yond the formal questions inherent to the motivation or justification of the mea‐ sures. As far as political control is concerned, although it is positively valued, the early warning mechanism, up to now it has only resulted in three "yellow cards" against European regulatory proposals, of which the Commission has withdrawn it in only one case29, although in another case it was finally channelled through enhanced cooperation30. In the way in which the procedure of subsidiarity has been configured in the EU, the question is who interprets and, therefore, who decides which are the ob‐ jectives to be reached accordingly with the Treaties. Once the EU defines the ob‐ jectives it is normal that the EU itself also understands that they will be better achieved with their intervention since for the Member States in many cases they are not even objectives that have been raised as such. Therefore, differentiating between "if" and "how" is complicated. Generally who has the ability to define the objectives also has the ability to decide how they should be achieved31. In this regard, it should be noted that the latest official documents of the European 28 All without ignoring that, as indicated by Gráinne de Búrca: “The aspect of expansion and centralisation of Community action which is not apparently taken into account by the legal formulation of the subsidiarity principle is that there is a bias towards integration in‐ herent in some of the economic provisions of the Treaty, and this, often in the hands of the Court of Justice, this has been affirmed and supported. The ‘economic constitutional’ pro‐ visions of the EC Treaty not only have the potential effect of prioritising and privileging market liberalisation norms, but have been judicially construed in such a way as to make it virtually impossible to assert with confidence that there is any area of national law which falls clearly outside the competence of the Community.” Gráinne de Búrca, Reappraising Subsidiarity's Significance after Amsterdam, Harvard Jean Monnet Working Paper 7/99, Harvard Law School, Cambridge, 2000, p. 45. 29 See, on the two first yellow cards (the third one was produced in May 2016) Gabriél A. Moens and John Trone (2015) op. cit., p. 98. See also Laura Frosina, Regiones y Unión Europea tras el Tratado de Lisboa. El Comité de las Regiones, los Parlamentos regionales y el desafío de la ‘Multilevel Governance’” Revista de Derecho Constitucional Europeo, n. 22 (2014): https://www.ugr.es/~redce/REDCE22/articulos/07_frosina.htm. See also the studies included in: Parlamenti nazionale e Unione Europea nella governance multilivello, a cura di Fulco Lanchester, Giuffrè, Milano, 2016. See also the Annual report 2016 on subsidiarity and proportionality (30/6/2017): https://ec.europa.eu/transparency/regdoc/rep/ 1/2017/EN/COM-2017-600-F1-EN-MAIN-PART-1.PDF. 30 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced coopera‐ tion on the establishment of the European Public Prosecutor’s Office (‘the EPPO’). See the Annual report 2017 on subsidiarity and proportionality (23/10/2018): https://ec.europa.eu/info/sites/info/files/annual-report-2017-application-principles-subsidia rity-proportionality.pdf. 31 In general, on the participation of national parliaments in the European Union, we must share to a large extent the scepticism of Dieter Grimm, in the sense that the instruments put at the disposal of national parliaments are destined to participate in decisions that are adopted by others, which in no way can amount to deciding for themselves. See Dieter Grimm, Die Rolle der nationalen Parlamente in der Europäischen Union, p. 8, in: http://ww w.nomos-leattualitaneldiritto.it/wp-content/uploads/2015/09/Grimm_convegnoprin12-13_ 5_2015.pdf.. For the rest, it is clear that, as Fulco Lanchester reminds us, citing George Francisco Balaguer Callejón 145 Union, despite establishing formal criteria that tend to rationalize and objectify European actions, do not cease of vindicating the added value of these actions in all current areas of activity32. Subsidiarity as a structural principle of the European Union The principle of subsidiarity does not really define a material purpose, a substan‐ tial objective to be pursued in relation to general interests. On the contrary, it must be understood that the general interests are derived from other principles and values that are the ones that mark the orientation of the activity of the public powers. Subsidiarity has, therefore, an instrumental or formal nature: it is about making it possible for society itself to articulate the achievement of those objec‐ tives without the intervention of public authorities as far as possible, when we speak of horizontal subsidiarity or of favouring institutions closer to citizenship are those that exercise public powers when it comes to vertical subsidiarity33. In any case, it is important to consider subsidiarity not only as the principle currently enshrined in EU law in relation to the exercise of concurrent compe‐ tences between the EU and the Member States, but also as a global principle of the articulation of competences that must guide in the future the changes in the distribution of functions between the EU and the Member States. In this capacity of general projection of the principle, there is no doubt that there will continue to be a strong claiming component on the part of States that responds to criteria such as those set by the Constitutional Federal Court of Germany, which express the tension between the state transfer of powers and the democratic weakness of the Union in relation to the constitutional standards of the Member States: the EU is not a fully democratic structure, but its democratic standard it may now be III. Washington and Johann Caspar Bluntschli “influence is not government” Fulco Lan‐ chester, La integración europea y la herencia del federalismo alemán, Revista de Derecho Constitucional Europeo, n. 17 (2012). 32 Report of the Task Force on Subsidiarity, Proportionality and “Doing Less More Efficient‐ ly”, p. 4: “There is EU value added in all existing areas of activity and the Task Force did not, therefore, identify any Treaty competences or policy areas that should be re-delegated definitively, in whole or in part, to the Member States”. In the same sense, Communication from the Commission on “The principles of subsidiarity and proportionality: Strengthening their role in the EU's policymaking”, p. 11: The Commission “welcomes the Task Force’s important conclusion that the Union adds value in all areas where it acts”. COM(2018) 703, 23.10.2018. 33 See about horizontal subsidiarity, Antonio D’Atena Las declinaciones de la subsidiariedad en el derecho constitucional italiano, Revista de Derecho Político, nº 79 (2010) pp. 255-284. See also, Francisco Balaguer Callejón, Subsidiariedad horizontal y vertical, in Francisco Balaguer (Dir.), Luís Ortega/ Gregorio Cámara/ José Antonio Montilla, (Coordinadores), Reformas estatutarias y Declaraciones de Derechos, Instituto Andaluz de Administración Pública, Sevilla, 2008. The Relevance of Subsidiarity to European Integration 146 considered appropriate by virtue of its limited sphere of competence. An exten‐ sion of the competences of the Union would also require, in order to be constitu‐ tionally acceptable, the democratic deepening of its structures and institutions34. From this perspective, it is understandable that States intend to exercise the greatest possible number of powers. The question that we cannot stop thinking about is whether this is feasible in the context of globalization. If the answer were that it is not, then the logical thing would not be to promote the principle of subsidiarity but to enhance the democratic condition of the European Union. This implicit tension between subsidiarity and integration project channelled through the degree of democratic quality of the EU is one of the most disturbing in relation to the principle of subsidiarity because it gives additional legitimacy to the States while undermining the legitimacy of the project of European inte‐ gration and making Europe perceived by the citizens as a necessary evil and not as a shared project for the future. In any case, we must not ignore the importance of both the political and legal mechanisms related to the application of the principle of subsidiarity35 and the participation of national parliaments in European processes, as they can con‐ tribute to favour the internal debate on European affairs and, therefore, to config‐ ure national democracies in a Europeanist sense, although not so much to shape the European sphere in a democratic sense36 which would require a change in the integration model with a democratic deepening of the political structure of the 34 “The constitutional requirements placed by the principle of democracy on the organisation‐ al structure and on the decision-making procedures of the European Union depend on the extent to which sovereign responsibilities are transferred to the Union and how great the extent of political independence in the exercise of the sovereign powers transferred is. An increase of integration can be unconstitutional if the level of democratic legitimisation is not commensurate to the extent and the weight of supranational power of rule. As long as, and to the extent to which, the principle of conferral is adhered to in an association of sovereign states with marked traits of executive and governmental cooperation, the legit‐ imisation provided by national parliaments and governments, which is complemented and carried by the directly elected European Parliament is, in principle, sufficient (see BVerfGE 89, 155 <184>)” BVerfG, Judgment of the Second Senate of 30 June 2009 – 2 BvE 2/08 – para. 262. 35 Especially if we take into account the interaction between them, as noted by Werner Van‐ denbruwaene: What Scope for Subnational Autonomy: the Issue of the Legal Enforce‐ ment of the Principle of Subsidiarity, Perspectives on Federalism, cit., p. 68: http://www.o n-federalism.eu/attachments/004_Volume%206%20-%20issue%202%20-%202014.pdf. 36 In fact, as Mª Luz Martínez Alarcón (op. cit., p.193) indicates, on this incorporation of the national parliaments as instruments of control in the early warning mechanism, “this is a decision with a clear political intention in the extent to which, through it, will reduced the relevance of the European Parliament or, at least, its parliamentarization process is not further deepened”. As regards the promotion of political dialogue, see Marco Cecili, “La sussidiarietà e l’early warning system tra diritto e politica. il caso della c.d. “direttiva tabacco” del 2014”, LUISS School of Government, Working Paper Series: http://sog.luiss.it/sites/sog.luiss.it/files/SOG%20Working%20Papers%20WP41%20-%202 017%20Cecili.pdf. Francisco Balaguer Callejón 147 Union. This Europeanist configuration has to do with what has been called "ac‐ tive subsidiarity" in the Report that the Task Force on Subsidiarity presented to the President of the Commission on July 10, 201837. But at the same time, the risk of increasing the presence of national interests in the European debate is also evident and the difficulty in articulating common positions of European scope on the part of national parliaments is also clear38. On the other hand, the fact that the CJEU has not made a rigorous application of the principle of subsidiarity in favour of the States must be contrasted with other pronouncements of the Court in which it grants a wider margin to the States against the valid Law of the Union, modulating the application of Union law by virtue of respect for the constitutional identity of States, for example. Therefore, if subsidiarity is a mechanism of flexibility that has not always worked in the jurisdictional sphere, we must take into account that there are oth‐ er mechanisms of flexibility that are being used by the CJEU. In fact, we can see how the jurisdictional tension between the States and the European Union has shifted from the application of the principle of subsidiarity, where the jurisdictional guarantees of Protocol 2 to the Treaty of Lisbon have proved to be ineffective, up to principles with a more limited scope, such as the respect for the constitutional identity of the States of Article 4.2 TEU. The con‐ stitutional identity of States is not used, however, in a proper sense, but as a usu‐ ally generic reference to modulate the application of European Law39. 37 See “Active Subsidiarity. A new way of working” Report of the Task Force on Subsidiari‐ ty, Proportionality and “Doing Less More Efficiently”, in: https://ec.europa.eu/commission/sites/beta-political/files/report-task-force-subsidiarity-pro portionality-doing-less-more-efficiently_1.pdf. 38 Among other things, it is necessary to take into account, as Antonio Zorzi Giustiniani very well pointed out, the obstacle posed in terms of the possibility of collaboration of the national parliaments of the Member States the “autoreferenzialità delle assemblee legis‐ lative le quali, in quanto “sovrane”, sono tradizionalmente refrattarie a negoziare accordi e strategie politiche con organi rappresentativi di altri paesi” Antonio Zorzi Giustiniani, Parlamento europeo e parlamenti nazionali nella governance economica e finanziaria euro‐ pea, p. 8 in http://www.nomos-leattualitaneldiritto.it/wp-content/uploads/2015/05/Zorzi-Gi ustiniani_ConvegnoPRIN12-13_5_2015.pdf. 39 See on the principle of constitutional identity: Francisco Balaguer Callejón, A relação dialética entre identidade constitucional nacional e europeia, no quadro do Direito Consti‐ tucional Europeu, in UNIO – EU Law Journal. Vol. 3, No. 1 (2017). http://www.unio.cedu.direito.uminho.pt/Uploads/UNIO%203/Corrigidos/francisco_balagu er_callejon.pdf. See also, Francisco Balaguer Callejón, Primato del diritto europeo e identità costituzionale nell’esperienza spagnola”, in I Controlimiti – Primato delle norme europee e difesa dei principi costituzionali, a cura di Alessandro Bernardi, Jovene Edito‐ re, Napoli, 2017, pp. 113-133. See also Augusto Aguilar Calahorro, La dimensión con‐ stitucional del principio de primacía, Thomson Reuters, 2015 and Fausto Vecchio, Pri‐ mazia del diritto europeo e salvaguardia delle identità costituzionali: effetti asimmetrici dell'europeizzazione dei controlimiti, G. Giappichelli, 2012. . The Relevance of Subsidiarity to European Integration 148 If we had to interpret this evolution, we could say, albeit with caution, that the principle of subsidiarity is yielding in its tension to the technique of subsidiarity, so that the criterion of the highest suitability of European action to achieve the objectives previously defined by the European Union is imposed to the criterion of the more proximity of decisions to citizens through the action of States. It is evident that the definition previously establish by the European Union when marking the objectives, predetermines to a large extent the decision on who should achieve those objectives, in favour of the Union itself. It seems inevitable that, in times of globalization, this tendency will be im‐ pelled in the future, determining the progressive ineffectiveness of the technique of subsidiarity and, therefore, the growing erosion of the principle of subsidiarity. It is understandable that this evolution also leads to the reinforcement of the con‐ stitutional identity of the States as a principle that can influence the relationship between the European Union and the States in the process of applying Union Law. After all, respect for the constitutional identity of States moves in the same direction as the principle of subsidiarity. Tension is thus displaced from the sphere of the articulation of competences to that of the articulation of legal sys‐ tems. At the same time, the conflict is transferred from the scope of the validity of EU law, which is more problematic, to that of its effectiveness vis-à-vis na‐ tional systems, which allows greater flexibility. The evolution of the principle of subsidiarity after Lisbon: the "antisubsidiarity" Since the economic crisis, a series of important transformations have taken place in the European material constitution, which affect the constitutions of the Mem‐ ber States40 and which in fact limit the role recognized in the Treaties to national parliaments41, insofar as that they have rearranged the position of the state legis‐ lative organs and of the European Parliament. They also have defined a new IV. 40 See Francisco Balaguer Callejón Crisi economica e crisi costituzionale in Europa Kor‐ Europa, nº 1 (2012): http://www.unikore.it/index.php/indici/numero-1. Also in: Crise économique et crise constitutionnelle en Europe, Constitutions, avril-juin 2013, Crisis económica y crisis constitucional en Europa, Revista Española de Derecho Constitucional, número 98 (2013) and Una interpretación constitucional de la crisis económica, Revista de Derecho Constitucional Europeo, Número 19 (2013). See also Enrique Guillén López, La crisis económica y la dirección política: reflexiones sobre los conceptos de necesidad y de elección en la teoría constitucional, Revista de Derecho Constitucional Europeo, n. 20 (2013). 41 As indicates Anna-Lena Hoegenauer, the crisis has unleashed new tendencies towards deparlamentarisation despite the efforts of the Lisbon Treaty to involve national parlia‐ ments in European decision-making processes. See Anna-Lena Hoegenauer, The Princi‐ ple of Subsidiarity after Lisbon: Towards a Sustainable System of EU Multi- level Gover‐ Francisco Balaguer Callejón 149 framework for the exercise of political power by the EU that exceeds the provi‐ sions established in the Treaties and that puts in question the EU as a community of Law, in addition to influencing the internal sphere of States, in what concerns, among other issues, the position of national parliaments in the national govern‐ ment system42. The financial crisis has suspended a large part of the fundamental rules of EU legal system and also of some national constitutions of EU Member States. Bud‐ getary limitations have also been, inevitably, limitations on competence and, therefore, the effectiveness of principles such as subsidiarity has been reduced by that parallel legal order that has been generated by the crisis through procedures whose legal nature is still discussed but that have been imposed by the force of economic constraints and not legal or political arguments. Since the economic crisis broke out, there has been an involution of European governance, at least with regard to the adoption of decisions of transcendence. The decisional process is moving away from traditional governance, which was based on the participation of diverse agents in "a polycentric, fragmented and in‐ terdependent decision system, characterized by the absence of clear hierar‐ chies"43. In recent years, on the contrary, as indicated by Fabbrini, a hierarchical structure has been generated within the European Council, so that the States with the best economic situation impose their decisions the others44. This means that the already limited democratic legitimacy that the European Union had based on the representative and democratic nature of the States, which gave it an indirect representativeness to the EU itself, has now been affected by the internal reorganization of power within the EU. European Union. But, at the same time, its legitimacy as a community of law has also been affected, because measures against the crisis have not always been adopted through the exercise of nance? preprint of the same paper published in: N. Papakostas, N. Passamitros (eds.), EU Beyond the Crisis. A Debate on Sustainable Integrationism, Hannover. 2016, p. 22. 42 In relation to the influence of the economic crisis on the constitutional law of the EU and the Member States, see the works included in the volume The impact of the Economic Cri‐ sis on the EU Institutions and Member States/El impacto de la crisis económica en las in‐ stituciones de la UE y los Estados miembros, edited by Francisco Balaguer Callejón, Miguel Azpitarte Sánchez, Enrique Guillén López and Juan Francisco Sánchez Bar‐ rilao. Thomson Reuters ARANZADI, Pamplona, 2015. 43 Cfr. Francesc Morata, Gobernanza multinivel en la Unión Europea, p. 1, in: http://unpan1 .un.org/intradoc/groups/public/documents/CLAD/clad0044413.pdf. 44 “Under the dramatic impact of a financial crisis perceived as an existential crisis (Menéndez 2013), the intergovernmental union has ended up not only in centralizing deci‐ sion-making in the intergovernmental institutions of the ECOFIN Council and the Euro‐ pean Council, but also in institutionalizing hierarchical relations between national govern‐ ments within them. Through the creation of a “euro-zone fiscal colonialism” (Legrain 2014), domination, rather than voluntary and consensual coordination, has become the code of the intergovernmental union”, Sergio Fabbrini: Executive Power in the European Union: The Implications of the Euro Crisis”, 2015, p. 20, en: https://eustudies.org/conferen ce/papers/download/97. The Relevance of Subsidiarity to European Integration 150 EU competences following legal procedures. On the contrary, these are measures with a political status, which follow informal procedures: letters from indepen‐ dent authorities such as the European Central Bank (and, therefore, not represen‐ tative as the European Parliament) public demonstrations by European leaders (as the President of the Eurogroup) and, of course, obligations imposed to the States through economic pressure, by means of the statements of the Eurogroup and the MOU. The consequence of this evolution is that the EU has largely lost one of its most important sources of legitimacy: its status as a community of law. First of all, in the area of legislation, at least with regard to measures adopted in the face of the crisis, through private law systems, international treaties that are not inte‐ grated into European law or through political agreements. This condition of legal community in the field of law enforcement has also deteriorated since the most important norms that are now applied, in the context of the crisis, are not legal norms that can be controlled by the courts, but rather political decisions. We can see a wider regression in the constitutional systems of the Member States45, in which the European model of integration is being reflected by alter‐ ing the conditions of the internal normative constitutions. In this way, not only has there not been an evolution in the constitutional sense of the European Union, but there is a constitutional involution in the Member States instead. This decline manifests itself in all the essential elements of the internal constitutional systems, from pluralist democracy to territorial pluralism, passing through the division of powers between the legislative and the executive, the social State or the normativity of the Constitution. Instead of moving towards a constitutional‐ ization of the European Union that would make possible a greater homogeneity in the political forms of the different public spheres (European, national and ter‐ ritorial), we have moved towards a "deconstitutionalization" of the Member States, weakening the constitutional heritage of Europe. From the principle of subsidiarity as an instrument designed to bring political decisions closer to citizens, we have moved on to a kind of "anti-subsidiarity" by which decisions are adopted by global and supranational instances, leaving little room for national policies and without following the procedures for the control of the application of the principle of subsidiarity. This "anti-subsidiarity" has li‐ mited the principle of subsidiarity in its vertical dimension (in the relations be‐ tween the EU and the Member States) but also in its horizontal dimension, ex‐ traordinarily weakening social care in some States and the principle of the social 45 See Francisco Balaguer Callejón, “Constitutional Courts under Pressure – New Chal‐ lenges to Constitutional Adjudication. The Case of Spain”, in New Challenges to Constitu‐ tional Adjudication in Europe. A Comparative Perspective. Edited by Zoltán Szente, Fruzsina Gárdos-Orosz, Routledge, London and New York, pp. 164-184. Francisco Balaguer Callejón 151 State. Much of what has come later, the development of populism and anti-sys‐ tem positions in the political systems of the Member States has a lot to do with that lamentable drift of the integration process in recent years46. Conclusions. A productive dialectic between subsidiarity as a principle and as a procedure The principle of subsidiarity implies a new methodology in the treatment of pub‐ lic functions and also in the perception of integration processes. Through the principle of subsidiarity, this process is given flexibility by introducing a specific rationality oriented toward the preference of the entities closest to the citizens. The problem is that, in the context of globalization, to be effective, only the EU can exercise many of the functions that formerly belonged to the national State. Only the EU is in a position to limit the power of the great global agents and in these matters there is no possible intervention of the principle of subsidiarity. Therefore, in order to generate a productive relationship between subsidiarity as a principle and subsidiarity as a procedure, a prior reflection is necessary on the competencies that must be exercised by each level of government, European, state and, where appropriate, territorial. It is necessary then to rethink the meaning of subsidiarity in general terms (and not only in its current formulation) in the context of globalization: what should be given as competencies to the EU and what are the powers that may correspond to the State. One criterion in this regard may be the capacity of medi‐ ation that each power has to adequately perform its functions. As an orientation, we could say that the EU should exercise its power of mediation between the great global agents, public or private, and the States. In a global and supranational context, each instance of power must function as an instrument of mediation between the higher and the lower level. For example, in general terms, the EU must have the competencies that are necessary to medi‐ ate between agents of global power and the Member States (without prejudice to their competences as States in terms of international relations, for instance). Therefore, the EU must defend states against agents of global power, since states V. 46 As the EU itself has come to recognize with the implementation of the European Pillar of Social Rights, an initiative that tries to counteract the tremendous erosion of the integration project and to calm to some extent the internal tensions within the Member States, trying to provide a different orientation of the social policies that make possible a certain recov‐ ery of the social climate prior to the crisis, see Francisco Balaguer Callejón, La prospet‐ tiva spagnola sul pilastro sociale europeo, federalismi.it. Numero speciale 4 (2018): https:// www.federalismi.it/nv 14/articolo-documento.cfm?Artid=37065&content=La%2Bprospett iva%2Bspagnola%2Bsul%2Bpilastro%2Bsociale%2Beuropeo&content_author=%3Cb%3 EFrancisco%2BBalaguer%2BCallejón%3C%2Fb%3E. The Relevance of Subsidiarity to European Integration 152 can act much less effectively (if not ineffectively) in this area, as evidenced by the two major crises we have had in the 21st century, the financial crisis and the democratic crisis that we are experiencing now and that is related to the possibil‐ ities of political manipulation that are being generated through social networks and with the active participation of large platforms of services on the Internet. The same applies to the State, which should mediate in a preferable (though not exclusive) manner between supranational and infra-state entities (without prejudice to the full effectiveness of the principle of institutional autonomy). This does not mean that the State does not have a direct relationship with global agents (we are talking about trends or orientations of the areas of competence) or that the Länder, the autonomous communities or the regions do not have a direct relationship with European bodies. What we are talking about, therefore, is the general features or tendencies of the distribution of functions between the differ‐ ent territorial instances. These functions should be understood as such, more as a responsibility than as a rigid competency, taking into account the current condi‐ tions of acceleration of historical time with globalization. We have a clear example of what the European Union can do to defend the States and the European citizenship against the great global agents, both in the financial and communication fields in the two great crises of the constitutional‐ ism of this century, which have been also two major European crises47. It is not a matter of developing here a critique of the economic interpretation of the Consti‐ tution that has been imposed in Europe and of defending a constitutional inter‐ pretation of the crisis that should have guided European policies. Suffice it to say that this financial crisis has ended up being also the strongest crisis experienced by the constitutionalism of normative constitutions since the middle of the 20th century. The economic crisis has led to the first of the two major crises of consti‐ tutionalism in the twenty-first century, which has denatured some constitutional systems of member states, reducing the emancipatory impulse that was at the base of constitutionalism and establishing external limits to pluralist democracy. But at the same time, the economic crisis has also been a European crisis in which subsidiarity could have been an inspiring principle of European policies and, unfortunately, has not been fully implemented. The European Union has helped to sustain the countries in crisis but not with an adequate political orienta‐ tion, respecting the internal constitutional sphere of these countries and defend‐ ing the States facing the pressure of the markets and the financial speculators. Although the European Central Bank began to do effective work starting from the Mario Draghi Presidency, the results of excessively rigid austerity policies 47 See Francisco Balaguer Callejón, Las dos grandes crisis del constitucionalismo frente a la globalización en el siglo XXI, Nomos, Le attualità nel diritto, 2018: http://www.nomos-l eattualitaneldiritto.it/wp-content/uploads/2018/09/Balaguer_Costituzionalismo.pdf. Francisco Balaguer Callejón 153 are at the base of the rise of populisms in some countries and the loss of legiti‐ macy of the European project with the consequent rise of anti-European atti‐ tudes. The same can be said of the second crisis, which we are experiencing right now, when we still we have not ended the previous one, and which is a political crisis, derived from the capacity for propaganda manipulation through the use of communication platforms, which have altered the conditions of the public sphere and that have intervened very effectively in electoral processes such as the Brexit or the North American presidential elections, affecting the internal conditions of pluralist democracy. Platforms that manage social networks or companies that use them, have conditioned the orientations of the vote through a type of propa‐ ganda that looks a lot like subliminal advertising and through the massive use of personal data for the construction of user profiles. Also in this area, the absence of Europe is resounding and should be the object of reflection. No European country can act effectively against these global giants of communication that control, in an oligopoly regime, social networks world‐ wide. Only the European Union has the necessary dimensions to establish con‐ trol measures respected by these companies. Here too the principle of subsidiari‐ ty should be read in a way that goes beyond the technique of articulation of pow‐ ers to consider what should be within the scope of action of the European Union to adequately fulfil its functions as a supranational institution that can control the most negative effects of globalization for the benefit of European citizenship. Abstract Subsidiarity is projected in the European Union as an inspiring principle of the structure of European integration and as a technique for the articulation of com‐ petences between the European Union and the Member States. Between both di‐ mensions of subsidiarity, as a principle and as a technique, there is a tension that is caused by the double nature or the double face of the latter. On the one hand, the articulation of competences should follow the formulation of the principle of subsidiarity but, on the other hand, this orientation is conditioned by the suitabil‐ ity to achieve the objectives of the proposed action. In this way, the technique of subsidiarity is not oriented to the purpose established by the principle of sub‐ sidiarity but to a different one, not necessarily compatible with it: that of achiev‐ ing the objectives pursued by the EU. When these objectives cannot be suffi‐ ciently achieved by the Member States or can be better achieved, by the scale or effects of the proposed action, by the European Union, the principle of subsidiar‐ ity does not apply. So we could say that subsidiarity as a principle promises much more than what subsidiarity as a technique allows it to deliver. The Relevance of Subsidiarity to European Integration 154 The question is who interprets and, therefore, who decides what are the objec‐ tives to achieve according to the Treaties. Once the EU defines the objectives it is normal that the EU itself also understands that they will be better achieved with their intervention since for the Member States in many cases they are not even objectives that have been raised as such. Therefore, differentiating between yes and how is complicated. Generally who has the ability to define the objec‐ tives also has the ability to decide how they should be achieved. This explains the fact that if we had to interpret the evolution of subsidiarity in the European Union, we could say that the principle of subsidiarity is yielding in its tension to the technique of subsidiarity, so that the criterion of the greater suitability of European action to achieve the objectives previously defined by the European Union is imposed on the criterion of proximity of decisions to citizens through the action of States. It seems inevitable that, in times of globalization, this tendency will be im‐ pelled in the future, determining the progressive ineffectiveness of the technique of subsidiarity and, therefore, the growing erosion of the principle of subsidiarity. It is understandable that this evolution also leads to the reinforcement of the con‐ stitutional identity of the States as a principle that can influence the relationship between the European Union and the States in the process of applying Union Law. After all, respect for the constitutional identity of States moves in the same direction as the principle of subsidiarity. Tension is thus displaced from the sphere of the articulation of competences to that of the articulation of legal sys‐ tems. At the same time, the conflict is transferred from the sphere of the validity of EU law, which is more problematic, to that of the modulation of its effective‐ ness vis-à-vis national systems, which allows greater flexibility. In order to generate a productive relationship between subsidiarity as a princi‐ ple and subsidiarity as a technique, a prior reflection is necessary on the compe‐ tences that must be exercised by each level of government, European, state and, where appropriate, territorial. One criterion in this regard may be the capacity of mediation that each power has to adequately perform its functions. In a global and supranational context, each instance of power must function as an instrument of mediation between the higher and the lower level. In general terms, the EU must have the competencies that are necessary to mediate between agents of global power and the Member States. We have a clear example of what the Euro‐ pean Union can do to defend the States and the European citizenship against the great global agents, both in the financial and communication fields, in the two great crises of the constitutionalism of this century, which have been also two major European crises. The financial crisis, on the one hand, and the democratic crisis we are experiencing now and which is related to the possibilities of politi‐ cal manipulation that are being generated through social networks with the active Francisco Balaguer Callejón 155 participation of large platforms providing Internet services. Only the European Union has the necessary dimensions to defend States and European citizenship against financial speculators, in the economic field, and in front of the big global communication agencies, in the political field. The Relevance of Subsidiarity to European Integration 156

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Abstract

The EU’s vulnerability to crises is not a novelty, but disintegrative trends have reached a new quality. The financial and fiscal crisis shook the Union, which had just been consolidated by the Lisbon Treaty, to its foundations. The refugee crisis becomes a heavy test of European solidarity. For the first time, a member state, the United Kingdom, wants to leave the Union and in doing so, as at least the Brexiteers argue, regain its sovereignty. Even the member states themselves are not spared from moments of disintegration. One might think of the secessionist movements in Catalonia or Scotland etc. Against this background, the SIPE Congress in Hamburg has brought together high-ranking experts from all over Europe in order to explore the tension between integration and disintegration, as well as Europe’s prospects of being “united in diversity”. The discussions paint a differentiated overall panorama of the constantly challenged integration project. With contributions by Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck

Zusammenfassung

Die Krisenanfälligkeit der EU ist kein Novum, doch haben desintegrative Strömungen eine neue Qualität erreicht. Die Finanz- und Fiskalkrise erschütterte die eben erst durch den Lissabonner Vertrag konsolidierte Union in ihren Grundfesten. Die Flüchtlingskrise wird zur schweren Belastungsprobe für die europäische Solidarität. Mit dem Vereinigten Königreich will erstmals ein Mitgliedstaat den Integrationsverbund verlassen und, so die Brexit-Advokaten, seine Souveränität zurückgewinnen. Auch die Mitgliedstaaten selbst bleiben von Desintegrationsmomenten nicht verschont, man denke etwa an die Sezessionsbestrebungen in Katalonien oder Schottland. Vor diesem Hintergrund hat die Hamburger Jahrestagung der SIPE hochrangige Expertinnen und Experten aus ganz Europa versammelt, um im Spannungsfeld von Integration und Desintegration auszuloten, welche Zukunftschancen Europas „Einheit in Vielfalt“ hat. Die Diskussionen zeichnen ein differenziertes Gesamtpanorama des immer neu herausgeforderten Integrationsprojekts. Mit Beiträgen von Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck