ࡱ> TVSM Tbjbj== jWWPl@@@@@@@Tv v v v  4T| $2 R~!@ !@@ 6 J@ @  ~f@@ OɕlT" v  L0|TT@@@@ Sofia, 30/01/2003 CURRENT CHANGES OF THE MEANING OF THE STATE IN THE EUROPEAN UNION UNDER THE INFLUENCE OF THE PRINCIPLE OF SUBSIDIARITY Ladies and Gentlemen, I would like to express my gratitude to the Rotary Club for honouring me by inviting me to give a lecture. I would also like to thank you for honouring me by coming in such a great number. The theme of our lecture will be the meaning of the state is currently changing in the European Union the principle of subsidiarity. Which means that this change would be considered only through a prism of influence exerted by this principle on the concept of the state. Although there are other factors influencing the changes in the concept of the state in the European Union, we shall, due to lack of time, focus on the principle of subsidiarity only. We shall divide this lecture in two parts. In the first part we shall discuss the state in general, but not in the framework of a strict legal discussion, but we shall follow the development of a theme set a long time ago by the French Professor and sociologist of law, Georges Burdeau. On the possible question of why Ive chosen this particular development, I would say that each one has his own criteria. In my opinion it would not be in the interest of our subject today to ask whether the theory of legal personality of the state is under doubt or not. For it is not. Experts on constitutional law, such as the Germans Laband and Jellinek or the French Duguit, have set up a good background for this theory, and thus ensured the depersonification of state authority and the continuity of the state in the dimension of time. However, I believe that the views of the aforementioned university professor, are more suitable for analysing the current political and philosophical background of united Europe. I might succeed in my lecture to make a step ahead in this necessary synthesis. In the second part, we shall look more closely at the meaning and use of the principle of subsidiarity in the European Union, mainly from the point of view of co-existence among common European institutions, on the one hand, and the same bodies with the member-states of the European Union on the other. Finally, I believe it is necessary to always bear in mind the following: The European Economic Community, born in Rome in March 1957, was transmuted (so to speak) in February 1992 into the European Union by virtue of the Maastricht Treaty. The latter was subsequently amended in 1997 and was named after the beautiful city of Amsterdam where it was signed. This Treaty of Amsterdam is still in force. Thus, a political union was created. A union that represents a grouping of sovereign states and therefore is an international organization although a sui generis one, which also possesses a court the European Court in Luxembourg. The term sui generis is taken here in the sense that the organization has the legal personality only in as far as the first or community pillar of the Treaty on EU is concerned. By first pillar is meant a corps of provisions regulating the formerly European Community. These provisions were eventually incorporated successively into the Maastricht and Amsterdam Treaties, and are subject to the jurisdiction of the Court. There are two more pillars in the Treaties, in other words two more corpuses of provisions, which primarily are sectors of inter-governmental cooperation and in the main are not subject to the jurisdiction of the Court. The second pillar pertains to Common Foreign Policy and Security, the third to Justice and Home Affairs. A 1 What is a state, asks G. Burdeau? Well, if we agree that the whole enterprise of political thinking for the past three centuries of the European history aimed at separating authority from the persons exerting it, then we could accept that after this separation, the state submitted itself to the concept a society holds for its own future, as well as to the politico-economic organisation necessary for controlling this future. It goes without saying that no society could exist without possessing a purpose, a goal, which would seal the coexistence of its members. This common agreement (what the Latins named consensus) is formed around this purpose the members of a community have for their union, a union that is either already in existence or must be accomplished for the first time. Then there is also a need for a set of rules that would regulate relations among the members of the society. These rules, which would be made compulsory, would determine the behaviour of each member towards the accomplishment of the aforementioned goal. As such rules could only be rules of law, then let us name all of them the idea of justice that every individual possesses for the society to which it belongs, this idea being the strength of a collective perception of the social agreement (or consensus), we referred to previously. We could analyse further this idea of justice: it is the concept society possesses about a system of rights and obligations, which is transposed to, and regulates, relations between members of the society. Hence, the rule of law included in the legal system of a given society demands its application, so that this legal order be realised -i.e., the goal of a given society to be achieved. From this point of view, a rule of law places obligations on people, but its main concern is society. Of course, there are also other social rules achieving the same result, but the law has three added characteristics that the others lack: it requires a concept stated in its formulation, a will to impose it, as well as the obligation to apply it. These three characteristics of the rule of law are to be found in the concept of Authority. We could also add at this moment that the co-existence of authority and the idea of justice that we mentioned before, could be almost perfectly accomplished within the framework of state institutions. Through this line of thought we see how important the Constitution is, for a given state, a Constitution drafted by the ruling body (whoever that may be in our era we maintain it is the people). Through the Constitution the ruling body determines the way of understanding the desired social order for his society, forcing those who govern (and not only those who are governed) to respect the idea of justice. Thus, if the state possesses the power to rule, this power is not absolute. Because it is subordinate to law, as the idea of Justice which created Authority acts in the same way towards the state power: it created it also. Hence in this brief outline there is no place for abominable deformations, such as those witnessed in some European countries in a not far remote past. Justice had been then regarded as a creation of the state, and the state as the personification of force, thus only force could create Right. Maybe it is now time to end the following way: the state is not limited by justice, precisely because it was born through the idea of Justice, which is also the source for its legality, and is thus limited since the time of its birth. Limiting the state since the time of its birth is based on the fact that those who govern cannot act against the idea of Justice, which has been accepted by society at large. When those who govern perform their duties in administering the collective existence, then they should bring this idea of Justice to the level of current problems, increasingly complex ones, set by the existence and the progress achieved by political societies. A 2 The last point of this first part of the lecture is the concept of the state sovereignty, indeed one of the thorny issues of Public Law. Let us determine it on the basis of one of its sufficiently acceptable forms, i.e. a set of specific privileges enjoyed by only one ruler, who, due to the enjoyment of these privileges is placed on the higher level from which to impose his will. We could also add that state sovereignty is a force born out of the sum of social circumstances, historical and national ones, where a political society lives in that moment of its existence. Let us summarise: the one who rules is the one who decides on the idea of Justice dominating a given social group, with the clarification however that the ruler is not the one causing the idea of Justice to be born, only that this idea of Justice cannot be applied, nor can it be effective, unless it is accepted by the ruler. B 1 The word subsidium is Latin for that which is subsidiary, that which is complementary. The etymology must have encouraged Bishop Ketteler to invent the term, when in the 19th century German thought explored this notion. Nevertheless, some analysts take the idea of subsidiary authority, that which is complementary to the state authority, back to Aristotle and Saint Thomas Aquinas. The first explained in his work Politika that society is comprised of individuals-citizens that form groups (such as family or villages) mutually connected in the social articulation for the purpose of satisfying concrete needs. Otherwise, he said, the city-state (of his time) was suitable only for ensuring self-sufficiency to its citizens, i.e. the full provision of goods, material and spiritual ones. The latter, who replaced the ancient Greek term citizen with the Christian term person, in his work Contra Gentiles maintains that the state is a simple means in the service of society, and must aim at the perfection of the people whose care is in its hands, because they have both the will and the ability to assure the satisfaction of their needs. In his other work, De Regno, he notes that the state should only correctassist.perfect. This brief historical overview shows us that the focal point of the two concepts is the autonomy of the individual (citizen or person) and the social groupings, in relation towards state authority. Similar elements of analyzes can be found as well in the works of 17th century German jurist Althusius, as well as in the works of Hegel. It is known that this concept dominated German state structure in its life, with the exception of autarchic periods. But also in states where centralized view of the state was always dominant, for example in France, minds like Montesquiew and Tocqueville, caustically described this centralizing notion, which the French themselves call Jacobinism (from the name of her supporters during the French revolution). Perhaps we have began to become acquainted with an already old concept of political philosophy, which recently shook of the dust of history in order to assist in the new quest of a united Europe, in which the welfare state, as we witnessed after the Second World War its appearance as the organiser of almost all social activities, ceased to satisfy societys large group and its effectiveness came under doubt. B 2 This concept began to appear explicitly for the first time, in the European texts, in July 1987, when the Single European Act became effective, and prepared the great, unified European market of 1992. There can be no doubt that the initiator of the Act was the then President of the European Commission, Jacques Delors, a firm advocate of the subsidiarity principle. But we should note that the reference made to this principle in the SEA (Article 130) was made in order to stress the supranational competence of the European Community (instead of the competence of the member states) in fields such as the environment, research and development. On the contrary, member-states would not surrender these competencies to social groups, as we saw in our historical overview. Thus, the double meaning of the principle of subsidiarity is beginning to appear. In fact, as we noted beforehand, political-philosophical analyzes requires of the state to relinquish competencies to social groups, while according to the European texts of 1987 these should be surrendered to the supranational authority, namely, the European Community. As the aim of the reference made in the SEA was increased integration of the, then, 12 member states of the European Community, it was included again in the Maastricht Treaty (Article 3B) creating the European Union. But the content of the term the principle of subsidiarity was not finally determined. The criteria for judging it are indeterminate, and there is also the issue of who will judge whether the preconditions are met. Although we will try to deal with the legal aspect of this issue immediately after, we can note that a number of member-states do not wish for the European Commission to be the sole judge of these preconditions, as they would thus lose privileges emanating from their sovereignty. But we should accept that, as well-informed European politicians observed during the time of the Maastricht Treaty negotiations, it is precisely this uncertainty surrounding the concept of the principle (uncertainty which allows often mutually excluding interpretations), which permitted its acceptance by the member-states. Thus they can refer to this principle and each one use it to support its own opinion : on the one hand for example the advocates of the Federal Europe, where great competencies are surrendered to the supranational authority, as well as on the other hand supporters of greater autonomy of member states. In the end, the differing political and legal traditions of the member-states could co-exist under only that roof whose vagueness would facilitate this cohabitation. If we now attempt to summarize we should note that the two aspects of the subsidiarity principle, as we have already referred to them (I repeat, on the one hand the surrendering of competencies from the member-states to the supranational authority and on the other hand the surrendering of the responsibilities from the center to the level of periphery or region) are due : the first to the gradual development of the internationalization of economic exchanges of the last decades and the creation of supranational structures, such as EEC, the second to the establishment of the periphery or region level as a user of authority parallel to the state center. This is mostly true for member states, which did not previously have a federal internal structure, as we find it in Germany and Austria, for instance. In both these cases we witness the search for a state paradigm different from the so-called centralised one, to which we had almost all been accustomed. The full picture shows us that the subsidiarity principle represents an effort to resolve the new and multiple problems in the organisation of the state. At this point I think we should look back to the first part of this lecture, when we stressed that the idea of justice a society possesses must meet the demands of contemporary problems, increasingly complex ones, arising from the progress achieved in political societies, i.e. states. A last observation necessary for the present chapter to conclude: The way, already described above, of how gradually the state extricates itself of the competencies with which it has been burdened, especially in last few decades, shall limit it to those that in any case belong to it, i.e. foreign and monetary policy, defense, sustaining the social equilibrium and education, objects that are all closely related to the concept of state sovereignty. B 3 But in general the evolution of the application of the subsidiarity principle within the framework of the European Union, with the European Commission tending to apply its supranational value, provoked the reaction of some member-states, and especially of the United Kingdom, which submitted a Memorandum on this issue to the Working Group chaired by Ambassador Carlos Westendorp, which prepared the new Treaty on the European Union, known as the Treaty of Amsterdam. We cannot avoid observing at this point, that the general political-philosophical concept of society in United Kingdom, especially since the times of Thomas Hobbes, requires its ethnic societies, succeeding one another in time, to assimilate, and for the individual and the societal groups to submit, to the wider purposes of the state. This observation does not at all mean that there is a lack of democracy in the United Kingdom; on the contrary, it means the existence of an idea of Justice in society, as we saw in the first Part of this lecture, an idea however whose societal aim is different from other member-states ones. But since it had been accepted that the wording of article 3B of the Maastricht Treaty should remain as it is, the UK Memorandum, after the negotiations, was incorporated as a Protocol in the new Treaty of Amsterdam. In the Protocol we can detect a sense of displeasure towards the European Commission, for the way it uses the principle of subsidiarity, continuously evoking the supranational legal rules and procedures, which limit the sovereignty of the member-states. Because of this, guidelines were set in the Protocol, which should be taken into account by the institutions of the European Union, during the examination of whether the preconditions set by the subsidiarity principle are met when a legislative act of the Union is going to be issued. The new aspect was that the European Council of Vienna, in December 1998, decided that these guidelines should be already taken into account by the institutions of the European Union. B 4 Up to this point we have of course dealt with the general aspects of the subsidiarity principle and to conclude we should also examine, even if on a limited level, one of the legal aspects of this issue. We already stated that Article 3B of the Maastricht Treaty, provides a definition of this principle, albeit one which suffers from vagueness. Of course, a simple mention to this principle can be found as well in Article B of the General provisions of the Treaty, which refer to the aims of the Union. It can also be found in Article K3, which refers to co-operation between the member-states on issues of justice and internal affairs. In spite of this, the Edinburgh European Council, which took place as far as in December 1992, reduced this vagueness by adopting a global approach to the subject. The Council estimated them that Article 3B includes three main points: strict limits of Community action, a rule for answering the question should the Community act or not (instead of the member-states)? a rule for answering the question-how should we measure the intensity or the nature of Community action (if the Community acts instead of the member-states)? This third element is made clear in the third paragraph of Article 3B, where it is stated that (quote) Community action shall not go beyond the necessary limits for achieving the goals of the present Treaty (unquote). The portion of the phrase necessary limits is defined by many as the principle of proportional action (in other words: proportionality) and by others as the criterion for the intensity of Community action. It is anyway the most important precondition for applying the subsidiarity principle and like all Community provisions of the Treaty, is subject to the jurisdiction of the European Court, which has relegated it to the guiding principle of its jurisprudence. It is also called the criterion of intensity, because as we have already seen from the above, the issue of the second question namely should the Community act or not instead of the member-states, is taken to be already resolved, as we are talking now about Community action and not about member-states action. Thus the problem of its intensity arises, or otherwise the nature of the action. When the European Court examines the principle of proportional Community action it is also entering the field of qualitative and, if possible, quantitative indicators which are supposed to have imposed action by the Community instead of action by the member-states. I shall give an example: in the Shrader case the Court, in its decision of 1.7.1989, accepted that it is not permissible for the Community to impose an economic burden on the tax-payers of the member-states, which is disproportionally greater than the one imposed by the member-states on their tax-payers. This, the Court believes, should not happen and it will annul the Community act, even if, as mentioned in its decision, the aims of the Treaties are better served by Community action than by national one. Ladies and Gentlemen, I would be pleased if I helped you understand the problem at least a little bit, by what I said. 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