The Amsterdam Treaty seeks to bring the European Union
closer to the people of Europe by aligning the
institutions closer to conceptions of subsidiarity
and democracy. Subsidiarity is made operational in
a Protocol to the Amsterdam Treaty. This "Amsterdam
Subsidiarity" regards Community action as
appropriate if "the objectives of the proposed
action cannot be sufficiently achieved by Member States'
action in the framework of their national constitutional
system and can therefore be better achieved by action on
the part of the Community." (art. 5). Thus the determination
of relative efficiency of Community and Member State
action is crucial for this conception of subsidiarity.
Democracy is furthered by reforms which increase the
European Parliament's powers vis-a-vis both the
Commission and the Council of Ministers. These reforms
move the Union towards a bicameral model of parliamentary
democracy (Nentwich and Falkner 1997).
Subsidiarity may seem attractive for deliberative
democrats concerned with the opportunities for preference
formation in "decentralised processes of decision
making ... within constitutional political
structures." (Bohman 1999, 25; Miller 1992: 54, 67).
While there are such reasons for supporting subsidiarity,
the Amsterdam conception of subsidiarity also conflicts
with the concern for democratic deliberation when it
comes to institutional arrangements. The paper identifies
three main areas of tension between Amsterdam
Subsidiarity and deliberative democracy. Firstly, an
urgent but unanswered task is how to secure accountable
applications of Amsterdam Subsidiarity. Secondly, this
conception of subsidiarity seems to grant unwarranted
powers to Member States. Other entities, such as
sub-state regions, might also appeal to considerations of
subsidiarity, yet such applications and arguments are not
recognised. Finally, Amsterdam Subsidiarity may hinder
the development of trans-European values and commitments
necessary for a stable European political order.
The first section provides a brief historical backdrop
about the role of subsidiarity in the European Union. To
understand and assess the Amsterdam conception of
subsidiarity it is then helpful to consider aspects of
deliberative democratic theory, as well as alternative
theories of subsidiarity. The second section sketches
some relevant aspects of deliberative democratic theory.
The third section surveys some competing theories of
subsidiarity. The aim is twofold: to see how subsidiarity
may foster deliberation, and to identify some peculiar
features of the conception of Amsterdam Subsidiarity.
Section four considers conflicts and tensions between
Amsterdam Subsidiarity and deliberative democracy.
1 Subsidiarity in the European Union
The principle of subsidiarity regulates the allocation
or the use of authority within a political order
where there is no unitary sovereign. The principle holds
that powers or tasks are to rest with the sub-units of
that order unless a central unit is more effective in
achieving certain specified goals. Appeals to
subsidiarity take on particular salience in periods of
institutional transformation, often as part of the
bargain among sovereign communities agreeing to a common
authority in federal fashion. A Principle of Subsidiarity
reduces the risks for members of being overruled in
common decisions, by limiting the common agenda.
How are we to assess the Principle of Subsidiarity?
The principle seems to reflect the same normative ideals
as democracy: policies must be controlled by those
affected, to ensure that institutions and laws reflect
the interests of the individuals under conditions where
all count as equals. Only when these considerations
counsel joint action, is central authority warranted.
In the context of the European Union, the Principle of
Subsidiarity has served to quell fears of centralisation.
The Union was established to enhance and complement
domestic sovereignty in areas where there was a
recognised disparity between state borders, electorates,
and affected parties. The European level of governance
ensured beneficial cooperation, regulation of
externalities, and options for collective action.
Talk of subsidiarity was introduced in the late 1980s
through the initiative of the European Parliament,
Britain and Germany. Britain feared European federalism,
and the German L�nder sought to maintain their exclusive
powers enjoyed in the German Federal Republic. To
constrain centralising tendencies, they sought to place
the burden of argument with integrationists. A Principle
of Subsidiarity was included in the 1992 Maastricht
Treaty on European Union (TEU), and further elaborated in
a Protocol of the Amsterdam draft Treaty of 1997.
In the European setting, state governments' fears of
excessive centralisation are understandable, for the
safeguards against centralisation found in many
federations are absent in Europe. There is no doctrine of
enumerated powers, and rather than enjoying competencies
for specific fields of legislation, Community
institutions enjoy whatever competencies they need for
specified ends. Member states enjoy little exclusive
legislative authority, due to doctrines of "Direct
Effect," "Supremacy" and "Absorption
of Community Law," and due to the use of qualified
One reason why subsidiarity serves to constrain
European integration is that the member states presently
disagree about common ends, shared standards, and the
likely results of separate and common action. These
disagreements hinder applications of the principle, and
thus prevent joint action. To illustrate, some Member
States already address ecological problems better than
can be hoped for at the level of the EU, while other
states support EU action.
However, the principle of subsidiarity may also foster
agreement by indicating the issues which must be
resolved, including such topics as the aims of the union,
the likely strategies and their expected effects. This is
because subsidiarity may require that certain arguments
must be made when joint action is contemplated. Thereby
subsidiarity stimulates common deliberation, which in
turn may lead to further integration - contrary to the
constraining role member states envisioned.
There are further reasons why subsidiarity is unlikely
to alleviate worries about undue integration. The
Principle of Subsidiarity can be interpreted in several
different ways, so as to protect against intervention --
or to the contrary, require intervention by the central
unit. These and other issues are addressed in section 3.
Moreover, the Principle of Subsidiarity does not prohibit
centralisation, but only places the burden of proof on
integrationists. Thus it can be disadvantageous to those
sceptical of integration, by providing warrant for new
forms of centralisation. Finally, Subsidiarity may be
invoked against member states by their regions, draining
national state powers from within. Regions may argue that
the Subsidiarity principle must apply all the way down to
ensure that "decisions are taken as closely as
possible to the citizen."
Some of these aspects have been addressed in the
Treaty formulations of the Principle of Subsidiarity. In
the Maastricht Treaty the principle is explicitly linked
to the uncontested objectives of the Treaty, and stated
In areas which do not fall within its exclusive
competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if
and in so far as the objectives of the proposed action
cannot be sufficiently achieved by the Member States and
can, therefore, by reason of the scale or effects of the
proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what
is necessary to achieve the objectives of this Treaty.
As a result of the inclusion of the Principle of
Subsidiarity, the Commission has apparently changed
its mode of operation:
The Commission has undertaken to justify each of
its new proposals in the light of the subsidiarity
principle. It makes more regular use of Green Papers
and White Papers, prompting broad public debate,
before new proposals are submitted.
European Council 1996, 4
The 1997 Amsterdam Treaty goes
further, and includes a Protocol on the application of
the Principle of Subsidiarity which offers a more precise
interpretation of subsidiarity .
This "Amsterdam Subsidiarity" applies to issues
where competencies are shared between the Union
institutions and member states. Subsidiarity provides
some safeguards against centralisation by laying down
certain requirements for central action, and by
increasing transparency about these arguments. Comparative
effectiveness of Community action must be determined,
by showing that the objectives of the proposed action
cannot be sufficiently achieved by member states, and can
be better achieved by the Community. Community action is
a) the issue under consideration has transnational
aspects beyond control by Member States;
b) actions by Member States alone or lack of Community
action would violate the Treaty;
c) action by the Community produces benefits of scale
or effects, as compared with action at the level of the
The Community is also required to legislate in the
weakest form necessary, leaving discretion to member
states. Thus directives are preferred over regulations,
and framework directives over detailed measures.
At present, the EU institutions are still in flux: the
allocation of competencies and modes of operation are
adjusted at the frequent intergovernmental conferences.
In this phase deliberation about the purposes and
functioning of the Union is particularly important. For
this reason Amsterdam Subsidiarity serves a valuable
function. It facilitates public discussion and
deliberation about the ends and means of the European
Union in at least three ways. It requires openness and
arguments among member states and the Union institutions
about comparative effectiveness.
Secondly, these arguments must draw on arguments
within the member states themselves about the ends and
means of common action. And finally, the common
directives identify certain outcomes which must be
reached through domestic legislation, but leave the
states free in their choice of how to secure these
outcomes. Directives thus require each member state to
choose policies on the basis of their comparative
advantage. Such domestic discussions may consider
expected results, local circumstances, and domestic
history and customs, thus facilitating deliberation.
2 Deliberative Democracy
We may use 'democracy' as a term for certain
procedures for deliberation and decision. After public
deliberation, the electorate votes and runs for office in
elections, decided by majority rule, to bodies which
legislate after public deliberation, and execute rules by
majority rule. Thus rulers are held responsible to
electoral majorities (Dahl 1989, ch. 10, 11; Arneson
1993). Theories of democracy in this broad sense have
also endorsed other features such as constitutionally
specified procedures and constraints.
A broad range of liberal theories hold that
institutions are legitimate only if they can be justified
by arguments in the form of a social contract of some
specific kind. The aim of such theories is not to justify
morality from an assumption of self-centred individuals.
Rather, they assume that individuals generally have an
interest in acting justly, in being "able to justify
one's actions to others on grounds they could not
reasonably reject" (Scanlon 1982, 116). They
"desire to act in accordance with principles that
could not reasonably be rejected by people seeking an
agreement with others under conditions free from morally
irrelevant bargaining advantages and disadvantages"
(Barry 1989, 8). The implications are in accordance with
the principle that "only those norms may claim
validity that could find acceptance by all those
concerned as participants in a practical discourse
(Habermas 1991, 235). This commitment to give reasons
"manifests our respect for the reasonableness of
others" (Macedo 1990).
The aim of these liberal theories is to bring the
commitment to justice to bear on our rules, institutions
and practices. The principles of legitimacy we should
hold institutions to, are those that the affected persons
would unanimously consent to under conditions which
secure and recognise their status as appropriately free
and equal. The specific conditions, and the significance
of consent, vary among theories in ways which need not
concern us here. The set of social institutions as a
whole should secure the interests of all affected parties
to an acceptable degree, including our interests in
peace, stability, basic needs, and shares of goods and
powers. Among the important interests we must take each
other to have, are interests in joint activity as well as
an interest in developing our preferences under
An important challenge to any normative theory is the
plurality of life plans and conceptions of the good which
flourish today and the range of views which will flourish
in the future. While much is shared among citizens, there
are also conflicting views about what the good life and
polity consists in. Respect for all entails that a broad
range of such views must be respected by the social
institutions. All the same, social institutions affect
our lives profoundly: they determine our prospects and
life plans. Moreover, they are important for character
formation, as they affect our preferences and values
deeply. So an important good to be distributed is the
power to influence the institutions that shape one's
lives. Hence the importance of allocating political
rights, the subject of theories of democracy.
The justification of deliberative democratic political
arrangements over other arrangements is not, on this
view, ultimately that they best carry out the will of the
majority, but rather that they best secure the interests
of all affected parties. The case for majority rule, for
instance, must draw on empirical evidence that, when
properly regulated and circumscribed, such mechanisms
best secure substantive justice, i.e. that all affected
parties' interests are expressed and taken care of
acceptably well -- as compared to other arrangements. A
general statement of such justifications of democratic
institutions runs as follows:
The central virtue of democratic forms is that, in
the presence of a suitable social background, they
provide the most reliable means of reaching
substantively just political outcomes consistently
with the public recognition of the equal worth or
status of each citizen. Democratic forms succeed in
achieving this aim, when they succeed at all, less
because they aggregate existing preferences
efficiently than because they foster a process of
public reflection in which citizens can form
political views in full awareness of the grounds as
well as the content of the (possibly competing)
concerns of others.
Charles Beitz 1989, 113
Note that there are two sets of reasons for democratic
arrangements, when combined with public deliberation.
Deliberation followed by majority rule provides both
acceptable interest formation and acceptable
interest aggregation. The discussion of
subsidiarity that follows focuses on the former, and
following the conventions of this book, 'deliberative
democracy' is used about the former features. The
discussion leaves aside important issues pertaining to
the aggregation of votes through majority rule and
mechanisms of representation.
Let us consider some reasons why deliberation is
b Deliberation about ends
Deliberation about ends as well as means is not
a new concern in democratic theory, unique to recent
liberal theories. David Hume (1882), influenced by James
Harrington (1656) and in turn influencing James Madison,
was concerned with institutional mechanisms conducive to
deliberation and criticism. He considered such
arrangements as bicameralism and submission of arguments
for new pieces of legislation, with the aim of 'refining'
the opinion of voters (Beer 1993, 265-270). J. S. Mill
supported the creation of deliberative bodies to identify
and pursue common interests among those sharing national
Deliberation about common ends and means affects
preference and option formation, and are crucial input
for defining the problems. Will formation is fostered by
public deliberation, which allows for the development of
a necessary sense of solidarity, a shared political
culture and possibly a sense of community. Thus John
Stuart Mill (1962) insisted on the role of deliberation
for making individuals understand themselves as
responsible citizens who consider the views of others. A
focus on the constitutional allocation of powers easily
ignores these effects on preferences. An important
question concerns the opportunities for arguments and the
use of public reason under various institutional
arrangements which also must serve as a backdrop for
bargains and co-ordination (Cf. Dahl 1956, Dewey 1927).
The formal powers of putting issues on the political
agenda, and the allocation of bargaining power within the
political process, shapes the form, content and results
of informal norms and arrangements (Follesdal 1998a;
Joerges and Everson in this volume).
Deliberation which uncovers arguments for positions
may shift the participants towards mutual accommodation.
Presenting arguments to one another, based on premises
one assumes all can share, fosters willingness and
ability to take an interest in the interests of others
(Miller 1992). That is,
the need to reach an agreement forces each
participant to put forward proposals under the rubric
of general principles or policy considerations that
others could accept... By giving these reasons,
however, I am committing myself to a general
principle, which by implication applies to any other
similarly placed group.
Miller 1992, 55.
Nino argues that democratic procedures are 'regimented
surrogates of moral discussion' (1996, 117) that allow us
to determine one another's interests, and turn bargaining
procedures in the direction of arguments. (cf. Bohman
1999, 18). This is an element also found in certain
"integrative" bargaining approaches, which
first seek agreement on principles for settling
disagreements, before applying such principles to the
conflict at hand (Fisher and Ury 1987; Raiffa 1982) .
Preference adjustment can occur even when arguments
are presented with the intention of own gain, for
hypocrisy has a civilising impact on character formation
(Elster 1998). Hypocrisy can remove blatant violations of
shared norms, it fosters some adherence to these norms,
and may make people prune their own preferences, since
they feel obliged to "report only those reasons that
others might plausibly be expected to share" (Elster
1998, 238, cf. Habermas 1973, Goodin 1986, 86-89).
One contested issue concerns to what extent such
public political deliberation affects preferences, as
compared to other inputs on character formation. (cf.
Femia 1996). Thus Miller holds that deliberative
relies upon a person's capacity to be swayed by
rational arguments and to lay aside particular
interests and opinions in deference to overall
fairness and the common interest of the collectivity.
It supposes people to be to some degree communally
orientated in their outlook.
(Miller 1992, 45)
It is important to be clear about both the efficacy
and objectives of preference formation by public
deliberation. This is because each individual faces a
dual threat under partial compliance possibly wrought by
unilateral preference adjustment.
On the one hand, there is a risk of exploitation. My
willingness to abide by principles required by the common
interest as I see it, may be abused by others who claim
to be guided likewise, but who actually pursue their own
self interest under the guise of common interests. When
the stakes are high, such partial compliance is a risk
which institutions should try to protect individuals
against (Elster 1983, 37-8). To allay this risk it is
important to consider evidence of the claim that
"base prejudices will be transformed, and worthy
intuitions like hatred of racism vindicated, through
rational criticism and dialogue" (Ackerman 1980,
353; discussed by Sanders 1997, 351). One mechanism for
preference adjustment is the civilising impact of
hypocrisy mentioned above. It is unclear, however,
whether this and other mechanisms reduce the harms of
partial compliance sufficient to protect against
The second challenge is to lay out publicly observable
limits to appropriate self interest. There is a
legitimate place for self-interest where issues of just
distribution of benefits and burdens arise, since the
complete subjection of self interest for the sake of
"common interests" of others seems
illegitimate. Yet there are few standards available to
determine the reasonable limits to subjection to
altruistic goals. (cf. Sanders 1997, 361). While
deliberation should not be thought to extinguish
self-interest, the appropriate level and content of
self-interest must be clarified, to allow limited self
interest without provoking suspicion of partial
c Deliberation about Means
To be legitimate, decisions must be made by
voters with the appropriate preferences, who are informed
about the available policy alternatives, and the
candidates' performance and promises. Deliberation in
this sense, scrutinising such claims, improves the chance
that voters identify the best policy choices, and the
best candidates, among those available. There are at
least four reasons for this .
a) Option Creation. Deliberation may help
identify better alternatives, for instance by discovering
trade-offs and side payments for mutual gain. This is
consistent with recent bargaining theory, which suggests
that public discussion -- or the use of trusted mediators
-- is helpful for discovering areas of mutual gain and
opportunities for linked bargains (cf. Raiffa 1982, Lax
and Sebenius 1986).
b) Option Assessment. Deliberative procedures
can improve voters' assessments of existing policy
choices. Miller holds that "deliberative democracy
has the resources to attenuate the social choice problems
faced by the political community" (1992, 60). The
reason is that many rankings are eliminated through three
reasons: fact checks which remove preferences based on
false beliefs; through the condition of publicity which
removes morally repugnant preferences; and through
requirements of universalisability: "To be seen to
be engaged in political debate we must argue in terms
that any other participant would potentially accept, and
"It's good for me" is not such an
argument" (61). The main point seems sound, though
important social choice problems may well remain, as
noted by Mill and Nino (1996).
c) Option Choice. Voters of good will are more
likely to cast their votes according to their conception
of the common interest when they are convinced, through
public debate, that they know what choice it requires.
David Miller underscores this role of deliberation even
after deliberation has changed the preferences expressed
"finally when a decision has to be reached
there may still need to be a vote taken between two
or more options, what participants are doing at that
point is something like rendering a judgement or a
verdict on the basis of what they have heard. They
are expressing an opinion about which policy best
meets the various claims that have been advanced, or
represents the fairest compromise between the
competing points of view that have been expressed.
Miller 1992, 55-6
It is unclear why Miller's conjecture will always be
the case. There is no guarantee that voters who through
deliberation are more likely to understand the
common good, always will vote accordingly. The
more cautious claim seems more plausible.
d) Majority constraint. Deliberation can also
indicate the limits to majority rule. Public deliberation
can identify weaknesses of majoritarian decisions.
Consider Brian Barry's argument for majority rule (Barry
1991). He claims that majority rule is wise under four
conditions: when there is only one decision, only two
alternatives, when the constituency is not open to doubt,
and when the outcome is not of vital importance. The
majority principle itself offers no guidance for
identifying which issues should be on the agenda, the set
of alternatives, the constituency, or the set of vital
interests which should be kept off the agenda. Public
deliberation may provide answers to these important
questions, and remind people that under majority rule no
one should be permanently in the minority. This may also
be Miller's point, when he claims that
The emphasis in the deliberative conception is on
the way in which a process of open discussion in
which all points of view can be heard may legitimate
the outcome when this is seen to reflect the
discussion that has preceded it, not on deliberation
as a discovery procedure in search of a correct
Miller 1992, 57
The challenge for Miller is to show how the outcome
"reflects" the discussion, beyond for instance
identifying the alternatives.
d Democratic deliberation at the European level?
The reasons in favour of deliberation for
interest formation rests on assumptions that are
presently less plausible at the European level than at
the national level (see Schlesinger and Kevin, this
volume, for a careful consideration of these arguments).
The opacity of European institutions, the present lack of
a well-developed European public space, and the relative
absence of European political parties reduce the
opportunities for character formation, and limit the
informational bases and range of political choice.
Additional problems arise in the scenario of multiple
Europes - that is, extensionally different sets of Member
States forming a "Defence Europe", "Common
Currency Europe", "Human Rights Europe".
Different arenas for public deliberation may arise
clustered around each functional regime, without arenas
for addressing the issues arising across functions.
Segments of citizens, including those in small states,
harbour reasonable fears of becoming permanent minorities
in the absence of trans-sectoral arenas for public
One might hope that the Principle of Subsidiarity as
found in the Amsterdam Treaty alleviates some of these
hindrances to democratic deliberation, and brings the
European Union closer to the citizens. However, the
Amsterdam conception of subsidiarity has characteristics
which suggest that high hopes are premature.
3 Traditions of Subsidiarity
To get a better grasp of the features of the Amsterdam
conception of Subsidiarity it can be contrasted to five
alternative theories of subsidiarity, each of
which has different implications both for institutional
arrangements and for the role of political deliberation.
The five accounts draw on insights from Althusius, the
American Confederalists, Economic Federalism, Catholic
Personalism, and Liberal Contractualism, respectively
(Follesdal 1998). These accounts may regard subsidiarity
as proscribing or prescribing central
intervention, apply subsidiarity to the allocation
of political powers or to their exercise, and add
or remove issues from the sphere of political
decision-making altogether. Some of these features reduce
the room for democratic deliberation, while some may
a Liberty: Althusius
Althusius, "the father of federalism",
developed an embryonic theory of subsidiarity drawing on
Orthodox Calvinism. Communities and associations are
instrumentally and intrinsically important for supporting
("subsidia") the needs of the holy lives of
individuals. Political authority arises on the basis of
covenants among associations. The role of the state is to
co-ordinate and secure symbiosis among associations on a
consensual basis. The notion of symbiosis may be
interpreted as requiring deliberation about common ends
among sub-units, since it involves "explicit or
tacit agreement, to mutual communication of whatever is
useful and necessary for the harmonious exercise of
social life" (Althusius 1614, ch. 28). At the same
time, Althusius recognised that deliberation will not
always yield agreement, particularly not in matters of
faith. In such cases, he counselled religious toleration:
"the magistrate who is not able, without peril to
the commonwealth, to change or overcome the discrepancy
in religion and creed ought to tolerate the dissenters
for the sake of public peace and tranquillity, blinking
his eyes and permitting them to exercise unapproved
religion" (Althusius 1614, ch. 28)
This interpretation of subsidiarity would appear to
take the existing sub-units for granted - a feature it
shares with Amsterdam Subsidiarity. While this account
allows for negotiation among sub-unit representatives
based on existing preferences, agreement on ends is not
expected - which is why subsidiarity is required in the
first place. Althusian subsidiarity thus seems based on a
fundamental pessimism regarding the complete obliteration
of disagreement by means of preference formation through
b Liberty: Confederalists
Similar conclusions emerge from confederal
arguments for subsidiarity based on the fear of tyranny.
On this view, individuals should be free to choose in
matters where no others are harmed. This is thought to be
best secured by decentralised government enjoying veto
powers. Thus sub-units may veto decisions, or
super-majoritarian mechanisms must be established. An
added reason for local politics often found in this
tradition is that participation -- and possibly
subsidiarity -- might be thought to facilitate learning
and to secure political virtue, clearly embracing
Two drawbacks of this view should be mentioned.
Firstly, the exclusive focus on tyranny as the sole ill
to be avoided is questionable. In the context of the
European Union, similarly, abuse of centralised powers is
not the only risk: inability to secure necessary common
action is also a threat.
Secondly, as Madison pointed out, the plight of
minorities is uncertain, since it is unlikely that
smaller units are completely homogeneous. Indeed, tyranny
may emerge more easily in small groups. It might also be
easier for minorities to muster courage in larger
settings (Sanders 1997).
Regarding deliberation, let us note that there is room
for deliberation regarding ends within sub-units, but not
between them. Thus subsidiarity and veto powers may
reduce opportunities and need for agreement, rendering
such solutions unattractive for discourse democrats. If
we agree that it is easier to reach agreement about ends
in local polities, i.e. that individuals are likely to
come to agreement on ultimate values, this may be an
argument for subsidiarity. Montesquieu held that common
interest is easier to see in a smaller setting. We may
note that Scharpf (1988) makes similar arguments for
subsidiarity in the European Union.
Agreement may be easier to reach in small democracies
with homogeneity of socio-economic circumstances and
closed borders, where politicians are less likely to
pursue own advantage, and where demands are stable over
time. However, these conditions are unlikely - as the
American Federalist debate made clear. Perfect
homogeneity is never achieved, and "the fewer the
distinct parties and interests, the more frequently will
a majority be found of the same party; and the smaller
the number of individuals composing a majority, and the
smaller the compass within which they are placed, the
more easily will they concert and execute their plans of
oppression." (Madison 1787). These risks should be
kept in mind when considering the deliberative
implications of Amsterdam Subsidiarity.
A final implication for deliberation of this kind of
subsidiarity might be illustrated by Montesquieu's
suggestion, that once agreement was secured by
homogeneity in sub-units, this should be combined with a
limited central agenda. For instance, an agreement on the
common end of defence should move on to a discussion of
the best means of defence, rather than a more expansive
discussion of other common ends (Beer 1993, 230). In
effect this argument supports a proscriptive version of
subsidiarity, and limits deliberation of ends from the
outset. It is similar to the Amsterdam conception of
subsidiarity in that the objectives of cooperation are
laid down in advance.
c Efficiency: Economic Federalism
This theory of subsidiarity holds that powers
and burdens of public goods should be placed with the
populations that benefit from them. Decentralised
government is to be preferred insofar as a) local
decisions prevent overload, or b) targeted provision of
public goods is more efficient in economic terms. This
conception of subsidiarity seems to match the
Euro-sceptics' wariness of European cooperation -- though
they might object to the label "federalism".
This theory is concerned with competence allocation,
and provides standards for sub-unit identification and
tasks. Sub-units do not enjoy veto powers, since
free-riding individual sub-units may be overruled to
ensure efficient co-ordination and production of public
goods, namely non-excludable and inexhaustible goods.
Weaknesses of this view include the following: it is
limited in scope to such public goods. Moreover, it
suffers from the standard weaknesses of economic theory
regarded as a theory of normative legitimacy. Standard
economic theory does not address the important issue of
preference formation, and relies on Pareto improvements
from given utility levels, ignoring the pervasive impact
of unfair starting positions.
Deliberation about means and strategic cooperation is
important on this view, partly in order to determine
win-win situations. The focus on expressed preferences
without regard for how the preferences develop sets this
approach apart from deliberative democracy. Also note
that arguments of economic federalism may recommend that
issues are removed from democratic and political control,
and left to market mechanisms or other non-political
arrangements within sub-units. Finally, of relevance for
Amsterdam Subsidiarity, we may note that this argument
questions the presumption in favour of Member States as
the appropriate sub-units, and instead supports placing
powers with sub-state regions. Subsidiarity, on this
view, may go "all the way down".
d Justice: Catholic Personalism
The Catholic tradition of subsidiarity is
expressed clearly in the 1891 Encyclica Rerum Novarum,
and further developed in the 1931 Encyclica Quadragesimo
Anno against fascism. The Catholic Church sought
protection against socialism, yet protested capitalist
exploitation of the poor. As developed in Personalism, a
tradition which influenced Delors, the human good is to
develop and realise one's potential as made in the image
of God. Voluntary interaction is required to find one's
role and promote one's good. A hierarchy of associations
allow persons to develop skills and talents, and assist
those in need. The state must serve the common interest,
and intervene to further individuals' autonomy.
Subsidiarity should regulate both competence
allocation and exercise. It allows both territorial and
functional applications of the principle, possibly
placing issues outside of the scope of democratic
politics. Sub-units do not enjoy veto rights, and
interpretation of subsidiarity may be entrusted to the
Christian Democratic governments and the European
People's Party hold views on subsidiarity close to this,
for instance supporting just wage constraints on market
This view rests on contested conceptions of the social
order as willed by God, and human good as a particular
mode of human flourishing. Thus it cannot settle beyond
reasonable disagreement which sub-units and cleavages
should be embedded - e.g. families, or labour unions -
and what their responsibilities should be regarding care
for infirm, wages, or unemployment. Deliberation might
reduce these disagreements for purposes of reaching
This theory recognises an important role for
deliberation, both so that individuals and social groups
may discover their proper function, and in the exercise
of powers regulated by considerations of subsidiarity.
This aspect is shared by Amsterdam Subsidiarity, which
holds in paragraph (1) that subsidiarity primarily
regulates how institutions exercise their powers, and not
how these powers should be allocated. However, the
Catholic view would deny that standards and functions are
determined by deliberation, paralleling Amsterdam
Subsidiarity in that the objectives of the social order
are to be taken as given. Aspects of the natural social
order are at most discovered, and not constituted, by
e A Liberal Contractualist case for subsidiarity
Liberal Contractualism of the kind associated
with Rawls, Scanlon or Barry might acknowledge a limited
role for subsidiarity. Socialisation into a sense of
justice is important. However, this does not amount to
full-fledged support for a Principle of Subsidiarity.
Even though political virtue must be fostered, possibly
through political participation, local democracy need not
be given priority in the form of subsidiarity as long as
some learning takes place locally.
Two other arguments within this tradition provide
better support for subsidiarity. Firstly, individuals
must be acknowledged to have an interest in controlling
the social institutions that in turn shape their values,
goals, options and expectations. Such political influence
secures and promotes two important interests. Agreeing
with the republican claim of Confederalists, it protects
our interest in avoiding domination by others. In modern
polities this risk is reduced by a broad dispersion of
procedural control. And control over institutional change
serves to maintain our legitimate expectations. We have
an interest in regulating the speed and direction of
institutional change. This interest is secured by
ensuring our informed participation, to reduce the risk
of false expectations. When individuals share
circumstances, beliefs or values, they have a prima facie
claim to share control over institutional change to
prevent subjection and breaking of legitimate
expectations. Those similarly affected are more likely to
comprehend the need and room for change. Insofar as this
holds true of members of sub-units, there is a case for
subsidiarity. However, this account does not single out
Member States as the only relevant sub-units, contrary to
The second argument for subsidiarity concerns its role
in character formation. The Principle of Subsidiarity can
foster and structure political argument and bargaining in
ways beneficial to public deliberation, and to the
character formation required to sustain a just political
order. By requiring impact statements and arguments of
comparative efficiency, Amsterdam Subsidiarity
facilitates the socialisation of individuals into the
requisite sense of justice and concern for the common
good. For this purpose the Principle of Subsidiarity need
not provide standards for the resolution of issues, as
long as it requires public arguments about the legitimate
status of sub-units, the proper common goal, and the
likely effects of sub-unit and centre-unit action.
This argument underdetermines subsidiarity. That is:
other rules for the exercise of political power could
serve the same purpose, which is to ensure public
argument about shared ends and suitable means, leading to
preference adjustment. Furthermore, this argument must be
supplemented by theories of institutional design in order
to suggest suitable institutional reforms. Whether
sub-units should enjoy veto, votes or only voice is a
matter of the likely institutional effects on character
formation, and on the likely distributive effects.
f Summary: Subsidiarity improving deliberation
In light of these brief sketches, we may
conclude that Amsterdam Subsidiarity may improve the
deliberative aspects of democratic decision-making. This
is in accordance with some deliberative theorists, who
prefer decentralisation and direct democracy (Bohman
1999, 20). Thus Miller seeks a "reshaping of those
[liberal democratic] institutions in the light of a
different regulative ideal", including subsidiarity
to allocate decisions downwards to the sub-constituencies
according to who are affected (Miller 1992, 54, 67). The
five accounts of subsidiarity sketched above suggest
several reasons to support these claims that subsidiarity
and deliberative democracy are compatible and indeed
a) Sub-units are better able to secure shared
interests, particularly if shared geography, resources,
culture or other features make for similar interests and
policy choices among members of the sub-units. Option
assessment and option choice are facilitated.
b) A reduction of issues on the agenda and parties to
agreements serve to reduce the risk of information
overload, and foster joint gains. Preference formation,
option assessment and option choice are
c) The deliberation fostered by subsidiarity can help
build community, partly by preference formation
towards the common good. The deliberation about ends also
supports an important sense of community for a minority,
that these decisions are "ours", and can foster
a sense among the majority about majority constraints.
Deliberation may thus enforce the boundary within which
majoritarianism is accepted as a legitimate decision
procedure (cf. Miller 1995, 257, Manin 1987, 352).
d) Subsidiarity helps protect against subjection and
domination by others, by proscribing intervention into
local affairs. Option choice is fostered.
e) Deliberation outside direct political control may
be warranted by considerations of subsidiarity, since it
allows for preference formation without the risks
associated with political domination. Thus Habermas
stresses the importance of deliberation in the public
sphere, rather than deliberation in state institutions.
This can be said to express a non-territorial application
of subsidiarity, where some important aspects of
preference formation are placed outside political
4 Subsidiarity versus Deliberation?
This final section considers some unresolved dilemmas
between Amsterdam Subsidiarity and deliberative
democracy. Classical features of democratic rule -- free
agenda setting and accountability -- appear to conflict
with political orders as regulated by Amsterdam
Subsidiarity. Some of these objections are presented only
to be rebutted. Other criticisms survive scrutiny. In
particular, the Amsterdam conception of subsidiarity
embeds states in ways incompatible with deliberative
democracy, and it remains an open question whether the
present institutions can foster the requisite
trans-European values and commitments.
a Agenda setting
Subsidiarity constrains political agenda in ways
which might appear incompatible with fundamental norms of
democratic theory, by moving some issues away from
democratic control in the same way as federal
arrangements split the agenda (Dahl 1983, 95-105).
Constraints on the political agenda are of course
particularly worrisome if some affected parties are not
part of the sub-unit which deliberates and decides.
However, when subsidiarity regulates the allocation of
competencies, the agenda of political discourse is
reduced correspondingly. This immunity from majority
control is indeed central to several arguments for
subsidiarity, and is crucial for the protection of
minorities and other protections of individuals through
legal rights and immunities (Lijphart 1991).
In response, we must first note that the alternatives
to splitting competencies are also problematic.
Allocation of competencies according to who is affected
makes for an opaque distribution of authority. The
problem is that it "easily leads to overlapping
jurisdictions of communication flows" (Habermas
1992, 11; and Schlesinger and Kevin, this volume).
From the point of view of liberal political theory,
the removal of some issues from day-to-day political
debate is not necessarily to be regretted. Surely,
allegiance to the political system may be threatened if
everything can be put on the agenda. If the elected
representatives are able to redefine the basic rights of
all, or revoke minority protections, trust may not be
forthcoming. More importantly, constitutional protections
and competence allocations by such means as subsidiarity
do not remove issues from public debate, even though the
issues are taken off the day-to-day political agenda.
Thus some objections to constitutional constraints should
be reconsidered. Dryzek, for one, argues against
constitutional guarantees which violate a claim to
"unconstrained political debate" which should
allow discussion of "the authority of prior norms or
requirements" (Dryzek 1990, 170). But constitutional
constraints on the political agenda, for instance by a
constitutional court, remove issues from ordinary
legislative debate, but do not remove issues from
political debate tout court. Instead, such
measures may serve to give notice to the public that the
political process now yields extraordinary effects; or
that the unintended systemic effects of political
decisions now cross certain limits defined as trigger
issues by a constitution. Such warnings do not stifle
political debate. To the contrary, they may indicate that
further public deliberation is in order, for there are
ways of revising the constitution or the Union treaties.
Such procedures typically involve further political
debate and deliberation, and further opportunities for
reconsideration, than the deliberations required for
ordinary legislation (Ackerman 1988, 192; and cf.
Sunstein 1994, 13-14). Requisite arenas for public
constitutional deliberation must be present -- a
requirement which is not satisfied as yet in the European
Union (cf. Schlesinger and Kevin, this volume).
These considerations aside, there are clearly risks in
limiting local or central agendas, e.g. through rights.
The current allocation of authority between the EU and
Member States is biased in favour of some conception of
the proper relations between Member States and the
Community, which may not be legitimate (Femia 1996, 370).
Other divisions than those based on citizenship -- class,
gender, profession or age -- might be more appropriate
for certain issues, but states are identified in the
treaties as the main sub-units. We consider these issues
Moreover, institutional arrangements for re-assigning
competencies must be available. Miller suggests that this
task might be handled better by deliberation than by
other means. Apparently, only deliberative democracy
reveals what sort of issue is at hand - whether it is
indeed a topic where
personal preferences should reasonably play a
large role in deciding them. This will be true of
many ordinary public goods, for instance. If we have
to make a budget allocation as between football
pitches and the swimming pool in the local park, the
main consideration is likely to be the general
direction and strength of preference between these
options. ... this is a case where the role of
deliberation is to identify a procedure for making a
decision rather than to arrive at a substantive
... deliberative democracy, precisely because the
content of people's preferences emerges in the course
of deliberation, can in theory select the decision
procedure most appropriate to the case in hand."
Miller 1992, 66
On Miller's argument, observe that it is unclear
whether such deliberations avoid the problems of partial
compliance and strategic arguments shared by deliberative
democracy and integrative bargaining. Individuals may
reasonably fear that others will promote principles which
favour them, in the guise of allegedly reasonable
principles. A second concern arises if we grant that
deliberative democracy might in theory be better equipped
to select procedures, and allocate authorities. Still,
empirically informed arguments are needed to support
Miller's view about the likely effects of deliberative
procedures for institutional redesign and competence
A further challenge to some applications of
subsidiarity stems from the requirement of
accountability. Subsidiarity can prevent the public from
placing responsibility for actions on particular
officials, who may appeal to vague and complex notions of
comparative effectiveness and limited room for
independent action. Such responses hinder accountable
government. This opacity may occur when competencies are
shared between sub-units and central units, as in the
European Union, or when the principle of subsidiarity
guides discretion without making the deliberations
public. These features also hinder the desired effects of
subsidiarity on preference formation.
In response, we may note that Amsterdam Subsidiarity
partly alleviates these fears by requiring public,
substantiated arguments for comparative effectiveness of
central action (paragraph 4). However, the objection
points to general challenges of institutionalising
deliberative democracy. The information required for
making and assessing claims for centralisation is
exceedingly complex, and relies in part on counterfactual
hypotheses. Recall that Amsterdam Subsidiarity requires a
comparison of the likely effects of decentralised action
with the effects of central action, assessed by some
standard of efficiency. Information overload threatens.
On the other hand, witholding information also violates
precepts of democratic deliberation. Robert Dahl warns
against institutionalising deliberative democracy on such
grounds: as long as governments fail to inform the public
about the problems of health care services, well-grounded
political choices are impossible (Dahl 1997). A major
challenge of liberal, deliberative institutional design
is thus to enhance the public's ability to hold officials
c Equality vs Democratic Sovereignty
We may also note a problem which arises for
subsidiarity from the perspective of egalitarian
political theories, such as John Rawls' theory of Justice
as Fairness (Rawls 1971). For such theories it would
appear that few distributive decisions should be left to
sub-units and domestic democratic institutions. It would
appear that such theories support centralisation and
uniformity of policy. These egalitarian distributive
implications are consistent with the EU objective to
"promote ... economic and social cohesion and
solidarity among Member States" (Art 2 ECT). But
this egalitarianism appears to conflict both with our
judgments regarding the priority of compatriots (Beitz
1983) and with the traditional scope of domestic
sovereignty, since egalitarianism puts drastic
constraints on the legitimate outcomes of democratic
An unresolved challenge to the egalitarian objective
concerns whether and how to reduce differences in living
conditions across Member States when some differences may
be due to
costly local policy choices made according to the
principle of subsidiarity. Given that some egalitarian
objectives are found in the treaties, Amsterdam
Subsidiarity might support Community action which
overrides such local variations. However, Member States
then risk a complete erosion of such kinds of autonomy
As a preliminary response, the egalitarian commitment
requires careful delineation of which goods and burdens
must be secured on an equal basis across sub-units.
Furthermore, this commitment to equal respect may allow
some democratically generated distributive variations
among sub-units. It remains, however, an open question
whether the best justification for equal political
control among Europeans also supports equal shares of
other goods and benefits - and how this egalitarianism is
to be squared with subsidiarity.
The tension between equality and sub-unit autonomy
points to a central problem of Amsterdam Subsidiarity:
the status of states.
d Political Equality: among persons or states?
Subsidiarity arrangements often grant small
states powers beyond what the number of inhabitants
should suggest, so too in the European Union.
Historically, in the EU and in other systems of pooled
sovereignty, the prominent role of states is no doubt due
to the historical bargain that took place among the
formally equal sovereign joining members. This feature
ensured the concerns of smaller states within the
community. Such arrangements seem illegitimate, as they
violate the ideal of one person - one vote. Note,
however, that such discrepancies between voting powers of
individuals are not a necessary feature of subsidiarity
or of federal arrangements. David Hume, in defending a
federal design, suggested electorates of equal size.
However, the apparent anti-egalitarian feature occurs
when sub-units are of different sizes - as is the case in
The future institutional design of the EU is at stake.
In order to increase the equal influence of citizens,
institutional reform could increase the powers of the
European Parliament, a 'federal' institution.
Furthermore, the electoral bases of the seats should be
reallocated to equalise representation, roughly
reflecting the influence of the population of Spain. The
populations of Germany, the United Kingdom, Italy and
France should then receive seats from the rest. This
conception of political equality also suggests that state
votes in the Council of the European Union should reflect
population size. Thus the influence of large states
should be increased so that individuals of those states
gain more equal control over the conditions shaping their
Alternatively, 'peoples', that is states, should be
represented as equals in federal arrangements. From this
perspective, small states should continue to wield power
irrespective of population size. The question might then
be whether Germany, with 10 votes in the Council, are too
influential in comparison to Luxembourg's two and
Ireland's three -- even though Germany has a population
more than 200 times that of Luxembourg and 22 times that
One might argue that such federal features can be
endorsed by considerations of subsidiarity, in that they
allow states to protect their vital "national
interests" through cooperation restricted by veto
powers and blocking abilities. A defence of this kind
must indicate how a system of checks and balances serves
these ends, and how it constrains the day-to-day
political bargaining between tiers, possibly giving the
bargaining more of a deliberative bent. The grounds for
veto or blocking must be specified, perhaps through a
list of individual and state rights. A definite list of
the objectives of the federation, coupled with a
Principle of Subsidiarity, must provide further guidance.
Such an account must draw on a theory indicating which
interests and values are at stake, and what are the
legitimate ends of state and federal institutions.
However, these "national" interests must be
specified in terms of the interests of individuals. Why
should states otherwise enjoy political powers? After
all, democratic deliberation is fundamentally concerned
not with the interests of states but the interests of
In response, skewed representation can be justified on
one of two grounds compatible with deliberative
democracy. Such arrangements can ensure that
representatives of all affected parties are able to
participate as equals in the deliberations. States'
representatives present the views and interests of
citizens, and it is not obvious that proportional
representation is required. Instead, skewed voting
weights, veto, double majorities or qualified majority
mechanisms, typical of federal arrangements, may be
appropriate to give citizens of small states both voice
Alternatively, one might argue that states are
appropriate units for controlling cultural and
institutional change. Small states may properly be
overrepresented in federal decision-making bodies, since
equal concern for the similar interests of all is
sometimes appropriately secured by allowing citizens of
small states to enjoy influence in deliberative settings
beyond what their population size should entail. Citizens
of small states are threatened in other ways than
citizens of populous states. For instance, if decisions
were made by majority vote, small states will tend to be
permanent policy takers rather than policy makers,
risking massive and systematic changes to the
expectations of their citizens. It therefore seems
acceptable to allow small states extra opportunities for
voicing concerns and receiving a fair hearing for their
arguments, for instance through disproportionate votes,
or by veto rights.
To illustrate how subsidiarity might be defended along
this line, recall that subsidiarity insulates sub-units
from majority rule in the larger polity, by offering
sub-units a veto or by separating competencies. This
effect is similar to that of consociational arrangements
(Lijphart 1979); and federal arrangements (Dahl 1983).
True, majority rule is constrained. But for deliberative
democrats, this is not an objection, since it is not
clear that the preferences of the majority should always
win out. What matters is that the interests of all should
be secured to an acceptable degree, after preference
formation through public deliberation has run its course.
Majoritarianism is plausible when everybody benefits
acceptably in the long run (Barry 1991). One problem
arises for minorities in polities with deep structural
cleavages. Two assumptions in favour of majority rule are
broken for permanent minorities in small Member States:
their chances of being in the majority are not equal to
the chances for citizens of larger states, and the
compounded outcome of several decisions against their
votes can amount to major disadvantages for them.
Subsidiarity would secure these minorities control over
such issues among others.
Liberal theories of the kind explored here recognise
that majoritarianism poses risks, even when we grant an
important role for democratic deliberation. If possible,
institutions should protect against miscarriages of
deliberation wrought by partial compliance with the norm
of voting one's conception of the common interest.
Institutional safeguards should protect against these
e Why are states the appropriate sub-units?
This strategy in defence of subsidiarity against
majoritarianism highlights a problem for Amsterdam
Subsidiarity. The case for states as sub-units remains to
be made. Given pluralism of values and shared
circumstances both within and across state borders,
claims that states should be privileged parties regulated
by Amsterdam Subsidiarity must be substantiated better
than as yet. Why allocate powers precisely at the level
of nation states, rather than insisting that decisions
must be local? It would seem that subsidiarity sometimes
should go "all the way down", at least to the
various regions of states, as argued by the Committee of
the Regions. Individuals' concern for political control
suggests precisely that jurisdiction should be local
except insofar as larger scale arrangements are required
for co-ordination or externalities.
State governments have traditionally enjoyed control
over institutional design, so citizens' expectations have
to a large extent reflected the domestic institutions and
cultures. As primary implementors of policies, these
governments are also the most plausible agents of union
directives. Yet this does not mean that state governments
are the primary locus for shared purposes and goals.
Pluralism of cultures and values within states suggest
that they are too large and heterogeneous for inhabitants
to agree to common ends. Indeed, regional unrest and
regionally based political parties indicate that the unit
of the state is too large. Moreover, permanent minorities
within states, such as migrant workers, cultural
minorities or the unemployed, have needs that are not
secured by Amsterdam Subsidiarity. It regulates
co-decisions by states and the Community, and does not
recognise other units. Arguments for subsidiarity as
explored in section 3 can support non-territorial
representation in some functional areas, since non-state
units may be better equipped to ensure efficacious
A central problem with Amsterdam Subsidiarity is thus
that it embeds states even further, together with any
injustice that exists between them, for instance unfair
shares of resources. Amsterdam Subsidiarity perpetrates
the original status of groups clustered by state borders,
freezing patterns, rather than accommodating groups under
common institutions as counselled by some deliberative
democrats (cf. de Buys 1997, and Eriksen this volume).
The embedded partitioning may limit mutual respect, and
reduce the interest in political participation beyond
sub-units, as witnessed in consociational arrangements
(Lijphart 1979, cf. de Beus 1997). The problem
from the point of view of deliberative democracy is not
that some groups have counter-majoritarian power, but
that the wrong groups may have it. Those likely to
benefit unfairly from unjust advantages may enjoy
disproportionate control over political decisions, and
they may be insulated from the processes of public
preference formation. Insofar as the present system of
nation-states in Europe is taken for granted, Amsterdam
Subsidiarity does nothing to alleviate such injustices.
f How secure support for polity-wide values and
A second problem with the status of states in
Amsterdam Subsidiarity has to do not with the lack of
justification, but with problematic and unintended
effects. It is unclear that stability and support for
basic democratic values is likely across Europe, if local
cultures and political culture flourish within Member
States, but not between them.
This is indeed one reason why one may object to
subsidiarity, consociational democracy and other
quasi-federal arrangements which embed, rather than
remove, entrenched divides among inhabitants. Borders
between sub-units may limit mutual respect, and limited
political participation beyond the sub-unit. Appeals to a
historically shared European identity is unhelpful for
these purposes. Indeed, several writers note that the
essence of Europe in fact is diversity and complexity of
localised societies (Kundera 1984; Enzenberger 1987),
with competing attempts at redefining the concept of
Europe (W�ver 1990). Thus the quest for shared values,
identities and loyalties through deliberation may be
arduous and yield few suggestions about the ends of
The significance of this worry depends on the extent
that shared values and commitments are needed in a
polity. If "thicker" sentiments are needed, as
e.g. indicated by David Miller (1995), this may challenge
subsidiarity. On the other hand, Habermas'
"Constitutional Patriotism" may make modest
demands on empathy and compassion. Empathy generated on
the basis of shared history or deliberation plays a small
role. On this point, we might agree with Habermas'
... our task is less to reassure ourselves of our
common origins in the European Middle Ages than to
develop a new political self-confidence commensurate
with the role of Europe in the world of the
Habermas 1992, 12
Of course, it also remains to be seen what sort of
institutional arrangements can foster Europe-wide
deliberation. Interaction in a shared public sphere might
be necessary to foster and maintain mutual respect and
solidarity. Considerations of subsidiarity might support
local deliberation and action, either to foster the
required shared sense of justice (Blichner and Sangolt
1994), or because Amsterdam Subsidiarity requires a
comparison of the effects of member states acting on
their own, with the effects of common action. The
comparisons required by Amsterdam Subsidiarity may require
domestic deliberation about common ends and proper means.
We should also be aware that this practice of
justification may become a model for domestic political
Insofar as popular support for institutions is
required, considerations of subsidiarity might also
require local measures to ensure support for whatever
common endeavours are needed. Thus, if a common political
culture must be developed among all members of the
polity, including a commitment to justice or the European
common-weal (Habermas 1992, 9), this is no objection to
subsidiarity in general. However, it may be a problem for
Amsterdam Subsidiarity insofar as that conception of
subsidiarity limits the interaction between citizens of
different Member States.
One lesson to be drawn is that important dilemmas may
occur where system capacity suggests centralisation,
while deliberative preference formation requires local
decision-making. In the European Union, cumulative impact
of policies and responses to international market
competition suggests central responses. At the same time,
there is still reason to doubt whether individuals across
the EU are able to achieve deliberative agreement in the
relative absence of European public spheres. The
Principle of Subsidiarity as expressed in the Amsterdam
Treaty offers little hope for resolving these issues.
Deliberation and subsidiarity may both be crucial
components of a legitimate European order securing the
equal dignity of all Europeans. The tensions and risks
suggest that there is a long way to go. Three main
challenges have been identified. Amsterdam Subsidiarity
must be applied transparently and accountably. Member
States are institutionally entrenched in ways difficult
to justify by any theory of subsidiarity. This is
particularly problematic in the absence of procedures for
institutional redesign and competence re-allocation. The
task of generating and maintaining the requisite
trans-European values and commitments is a daunting
challenge, given the current flaws of a European public
sphere. European institutions may one day embody the
ideals of deliberative democracy and subsidiarity, and
secure and express respect for all Europeans as equals.
Careful and public deliberation is needed to get us
* To appear in Erik Oddvar
Eriksen and John Erik Fossum, eds., Democracy and the
European Union - Integration Through Deliberation,
London: Routledge, 1999.
Included as an appendix, below.
distinct additional role of political deliberation
associated with "ideal pure procedural
deliberation" should be noted.. Sunstein holds that
answers to political problems "are understood to be
correct through the only possible criterion, that is,
agreement among equal citizens." (Sunstein 1993,
137). One reading of this claim is compatible with the
arguments laid out above, that deliberation plays roles
in preference formation, in discovering correct or good
policy outcomes, and in enhancing majority mechanisms of
preference aggregation. Such deliberation is the most
reliable method for attaining correct answers. However,
an additional claim may also be ascribed this position,
regarded as "ideal pure procedural
deliberation" (Estlund 1997, 1989). On this
interpretation, the standard for moral truth is
constituted as the result of actual deliberation under
certain conditions. These issues go beyond the arguments
of concern in this paper. There are particular challenges
to this view concerning why majority rule should be
included as a democratic feature, and how to identify
intentional and unintentional political abuse. We do not
pursue these issues here.
ON THE APPLICATION OF THE PRINCIPLES OF
SUBSIDIARITY AND PROPORTIONALITY,
in Amsterdam Treaty 1997
THE HIGH CONTRACTING PARTIES,
DETERMINED to establish the conditions for the
application of the principles of subsidiarity and
proportionality enshrined in Article 3b of the
Treaty establishing the European Community with a view to
defining more precisely the criteria for applying them
and to ensure their strict observance and consistent
implementation by all institutions;
WISHING to ensure that decisions are taken as closely
as possible to the citizens of the Union;
TAKING ACCOUNT of the Interinstitutional Agreement of
25 October 1993 between the European
Parliament, the Council and the Commission on procedures
for implementing the principle of subsidiarity;
HAVE CONFIRMED that the conclusions of the Birmingham
European Council on 16 October 1992 and the overall
approach to the application of the subsidiarity principle
agreed by the European Council meeting in Edinburgh on
11-12 December 1992 will continue to guide the action of
the Union's institutions as well as the development of
the application of the principle of subsidiarity, and,
for this purpose,
HAVE AGREED UPON the following provisions which shall
be annexed to the Treaty establishing the European
(1) In exercising the powers conferred on it, each
institution shall ensure that the principle of
subsidiarity is complied with. It shall also ensure
compliance with the principle of proportionality,
according to which any action by the Community shall not
go beyond what is necessary to achieve the objectives of
(2) The application of the principles of subsidiarity
and proportionality shall respect the general provisions
and the objectives of the Treaty, particularly as regards
the maintaining in full of the acquis communautaire
and the institutional balance; it shall not affect the
principles developed by the Court of Justice regarding
the relationship between national and Community law, and
it should take into account Article F(4) of the
Treaty on European Union, according to which "the
Union shall provide itself with the means necessary to
attain its objectives and carry through its
(3) 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 3b of the Treaty shall relate to areas for
which the Community does not have exclusive competence.
The principle of subsidiarity provides a guide as to how
those powers are to be exercised at the Community level.
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
conversely, to be restricted or discontinued where it is
no longer justified.
(4) For any proposed Community legislation, the
reasons on which it is based shall be stated with a view
to justifying its compliance with the principles of
subsidiarity and proportionality; the reasons for
concluding that a Community objective can be better
achieved by the Community must be substantiated by
qualitative or, wherever possible, quantitative
(5) For Community action to be justified, both aspects
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 constitutional system and can therefore be
better achieved by action on the part of the Community.
The following guidelines should be used in examining
whether the abovementioned condition is fulfilled:
the issue under consideration has transnational
aspects which cannot be satisfactorily regulated by
action by Member States;
actions by Member States alone or lack of
Community action would conflict with the requirements of
the Treaty (such as the need to correct distortion of
competition or avoid disguised 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.
(6) 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
directives 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.
(7) Regarding the nature and the extent of Community
action, Community measures should leave as much scope for
national decision as possible, consistent with securing
the aim of the measure and observing the requirements of
the Treaty. While respecting Community law, care should
be taken to respect well established national
arrangements and the organisation and working of Member
States' legal systems. Where appropriate and subject to
the need for proper enforcement, Community measures
should provide Member States with alternative ways to
achieve the objectives of the measures.
(8) Where the application of the principle of
subsidiarity leads to no action being taken by the
Community, Member States are required in their action to
comply with the general rules laid down in Article 5
of the Treaty, by taking all appropriate measures to
ensure fulfilment of their obligations under the Treaty
and by abstaining from any measure which could jeopardise
the attainment of the objectives of the Treaty.
(9) Without prejudice to its right of initiative, the
except in cases of particular urgency or
confidentiality, consult widely before proposing
legislation and, wherever appropriate, publish
justify the relevance of its proposals with
regard to the principle of subsidiarity; whenever
necessary, the explanatory memorandum accompanying a
proposal will give details in this respect. The financing
of Community action in whole or in part from the
Community budget shall require an explanation;
take duly into account the need for any burden,
whether financial or administrative, falling upon the
Community, national governments, local authorities,
economic operators and citizens, to be minimised and
proportionate to the objective to be achieved;
submit an annual report to the European Council,
the European Parliament and the Council on the
application of Article 3b of the Treaty. This annual
report shall also be sent to the Committee of the Regions
and to the Economic and Social Committee.
(10) The European Council shall take account of the
Commission report referred to in the fourth indent
of point 9 within the report on the progress
achieved by the Union which it is required to submit to
the European Parliament in accordance with Article D
of the Treaty on European Union.
(11) While fully observing the procedures applicable,
the European Parliament and the Council shall, as an
integral part of the overall examination of Commission
proposals, consider their consistency with
Article 3b of the Treaty. This concerns the original
Commission proposal as well as amendments which the
European Parliament and the Council envisage making to
(12) In the course of the procedures referred to in
Articles 189b and 189c of the Treaty, the European
Parliament shall be informed of the Council's position on
the application of Article 3b of the Treaty, by way
of a statement of the reasons which led the Council to
adopt its common position. The Council shall inform the
European Parliament of the reasons on the basis of which
all or part of a Commission proposal is deemed to be
inconsistent with Article 3b of the Treaty.
(13) Compliance with the principle of subsidiarity
shall be reviewed in accordance with the rules laid down
by the Treaty.
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[Date of publication in the ARENA
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