Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level. The concept is applicable in the fields of government, political science, cybernetics, management, military (Mission Command) and, metaphorically, in the distribution of software module responsibilities in object-oriented programming. Subsidiarity is, ideally or in principle, one of the features of federalism, where it asserts the rights of the parts over the whole.
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The word subsidiarity is derived from the Latin word subsidiarius and was first described formally in Catholic social teaching .[1] The concept or principle is found in several constitutions around the world (for example, the Tenth Amendment to the United States Constitution which asserts States rights and further, the rights of the people).
Subsidiarity is also a tenet of some forms of conservative or libertarian thought. For example, conservative author Reid Buckley writes:
Will the American people never learn that, as a principle, to expect swift response and efficiency from government is fatuous? Will we never heed the principle of subsidiarity (in which our fathers were bred), namely that no public agency should do what a private agency can do better, and that no higher-level public agency should attempt to do what a lower-level agency can do better – that to the degree the principle of subsidiarity is violated, first local government, the state government, and then federal government wax in inefficiency? Moreover, the more powers that are invested in government, and the more powers that are wielded by government, the less well does government discharge its primary responsibilities, which are (1) defense of the commonwealth, (2) protection of the rights of citizens, and (3) support of just order.[2]
Subsidiarity is perhaps presently best known as a general principle of European Union law. According to this principle, the EU may only act (i.e. make laws) where action of individual countries is insufficient. The principle was established in the 1992 Treaty of Maastricht.[3] However, at the local level it was already a key element of the European Charter of Local Self-Government, an instrument of the Council of Europe promulgated in 1985 (see Article 4, Paragraph 3 of the Charter) (which states that the exercise of public responsibilities should be decentralised). Subsidiarity is similar in concept to, but should not be confused with Margin of appreciation.
Subsidiarity was established in EU law by the Treaty of Maastricht, which was signed on 7 February 1992 and entered into force on 1 November 1993. The present formulation is contained in Article 5(3) of the Treaty on European Union (consolidated version following the Treaty of Lisbon, which entered into force on 1 December 2009):
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 objectives 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 reason of the scale or effects of the proposed action, be better achieved at Union level.
A more descriptive analysis of the principle can be found in Protocol 2 to the European Treaties.
Formally, the principle of subsidiarity applies to those areas where the Community does not have exclusive competence, the principle delineating those areas where the Community should and should not act. In practice, the concept is frequently used in a more informal manner in discussions as to which competences should be given to the Community, and which retained for the Member States alone.
The concept of subsidiarity therefore has both a legal and a political dimension. Consequently, there are varying views as to its legal and political consequences, and various criteria are put forward explaining the content of the principle. For example:
The Court of Justice of the European Union in Luxembourg is the authority that has to decide whether a regulation falls within the exclusive competence of the Union. As the concept of subsidiarity has a political as well as a legal dimension, the Court of Justice has a reserved attitude toward judging whether EU legislation is consistent with the concept. The Court will examine only marginally whether the principle is fulfilled. A detailed explanation of the legislation is not required; it is enough that the EU institutions explain why national legislation seems inadequate and that Community law has an added value.
An example is the judgement of the Court of Justice of the European Union in a legal action taken by the Federal Republic of Germany against the European Parliament and the Council of the European Union concerning a Directive on deposit guarantee schemes (13 May 1997). Germany argued that the Directive did not explain how it was compatible with the principle of subsidiarity. The Court answered:
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