The Principle Of Subsidiarity In EU Judicial And Legislative Practice: Panacea Or Placebo?

This paper considers the failure of subsidiarity as a judicial review principle and its somewhat more successful record as a legislative review principle in the European Union. Although the founding Treaties make clear that subsidiarity is a legally binding principle, the European Court of Justice has adopted an excessively deferential approach to its judicial enforcement. The Treaty provisions have been rendered essentially meaningless platitudes so far as judicial enforcement is concerned. The European Court's under-en- forcement of subsidiarity should be contrasted with the Court's history of judicial activism.

While the Court has often fashioned novel legal doctrines without express support in the founding Treaties, in the case of subsidiarity an express guarantee in the Treaties has been emptied of content by judicial interpretation.