Europe after Maastricht : interim report : report, together with the Proceedings of Committee, Minutes of Evidence, and Appendices : first report [of the] Foreign Affairs Committee.

  • Great Britain. Parliament. House of Commons. Foreign Affairs Committee.
Date:
1992
Catalogue details

Licence: Open Government Licence

Credit: Europe after Maastricht : interim report : report, together with the Proceedings of Committee, Minutes of Evidence, and Appendices : first report [of the] Foreign Affairs Committee. Source: Wellcome Collection.

    71/96 (page 55)
    Even so, a general test, no matter how carefully thought out and conceptually sound, will not neces- sarily be predictable in its application to specific policy fields. This means that it might be possible to achieve agreement in the Community to a general definition of the principle of subsidiarity, but such agreement could mask fundamental disagreements about the way in which the principle ought to be interpreted in its application to different specific areas of policy. 1.4 SUBSIDIARITY IN SPECIFIC AREAS OF POLICY Agreement on guidelines for the application of the principle to specific areas of policy would therefore be the most vital element in securing the effective implementation of the principle in the Community. Without such agreement, the implementation of the principle could well prove disappointing both at the legal and at the political level. Competition law and State aids: This field is of particular interest because of an analysis of the poten- tial application of subsidiarity to this field by the Commissioner responsible, Sir Leon Brittan!. As an example of the principle of subsidiarity in operation, Sir Leon points to the division, based principally on turnover limits, between Community and national control of mergers. Mergers which have significant effects at Community level should be analysed and regulated at that level; mergers which only have effects at national level should be left to be regulated at that level. Sir Leon proposes extending this principle to the control of potentially anti-competitive agreements and cartels by, in effect, delegating responsibility for the enforcement of Community competition law to national authorities and courts in cases where multi-country or Community wide investigations and actions are not necessary. Sir Leon also refers to his proposal to exempt state aids amounting to less than 50,000 ECU over a 3 year period from Commission scrutiny, as an example of subsidiarity in action. One can have certain reservations about aspects of Sir Leon’s case. The fact that the Commission is actively pressing for a radical reduction of the merger turnover threshold, so bringing many more merg- ers within its own control, suggests that the Commission sees the need for its own intervention with dif- ferent eyes from more detached observers. The State aids threshold is miniscule and would have to be substantially raised to be taken seriously as an implementation of the principle of subsidiarity. The return of competition law to national authorities is proposed to be delegation merely of the enforcement of Community law and policy, rather than the restoration to Member states of fuller freedom of action in substantive competition law and policy. These reservations point to the necessity of the Commission not being judge in its own cause when it comes to questions of subsidiarity. But despite these reservations, Sir Leon has identified a principle according to which a dividing line can be worked out between Community and national spheres of action in the competition field. Social policy: This is probably the most difficult area to achieve agreement within the Community on how subsidiarity should be applied; or at least to achieve an agreement which reflects Britain’s views and interests. The problem is that, at least on one view, the Treaty objectives in the social policy field themselves offend against the principle of subsidiarity. Article 119 of the Rome Treaty provides for equal pay between the sexes, and has been held to be directly applicable*. Article 118a provides for the adoption of measures (by qualified majority voting) in aid of the health and safety of workers. Art 118a is the Treaty provision which is being used to press the United Kingdom to adopt the 48-hour working week. Health and safety standards, or equal pay at work, within one Member State do not directly affect other Member States. At first sight one would therefore think that measures in the social field would be prime candidates for falling foul of the application of the principle of subsidiarity. This: reckons without the view which found expression in the judgment of the European Court in the Defrenne case on equal 3. pay”: “The aim of Article 119 is to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra- Community competition as compared with undertakings established in States which have not yet eliminated discrimination against women workers as regards pay.” The same line of reasoning could, of course, be used to justify all forms of Community social policy which impose costs on businesses. The problem is that once this argument is accepted, it is very difficult to see any dividing line by which the principle of subsidiarity can be applied in the social sphere. ' Lecture to the London Common Law and Commercial Bar Association, “Subsidiarity in Competition Law”, 2 July 1992. 2 Defrenne v. SABENA [1976] ECR 455. 3 [1976] ECR 455 at 471, para 9.