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The subsidiarity principle44 was formally introduced in general terms in Community Law by the Treaty on European Union, which included in the EC Treaty a new Article 3 B , providing that:

"The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.

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 * &

4 4 There is an extensive literature on the principle of subsidiarity in the European Community. See, e.g., Burgess, Michael "Federalism, Subsidiarity and the European Union", in The European Union at the Crossroads - Problems in Implementing the Single Market Projects Cox, Andrew & Furlong, Paul (eds,), Boston - Lincolnshire, Earisgate Press, 1995, p .l; Cass, Deborah Z., "The word that saves Maastricht?

The principle of subsidiarity and the division of powers within the European Community", CMLRev, Vol.

29, 1992, No.6, pp.l 107-1136; Constantinesco, V., "Article 3B", in Traité de Maastricht sur L'Union Européenne, Constantinesco, Vlad , Kovar, Robert & Simon, Denys (eds.), Paris, Económica, 1995;

pp.l07-118; Dehousse, R., Does subsidiarity really matter?, E.U.I. Working Paper 92/32; Emiliou, Nicholas, "Subsidiarity: An Effective Barrier Against 'the Enterprises of Ambition?' ", ELR, Vol.17, 1992, No.5, pp. 383-407; Emiliou, N., "Subsidiarity : Panacea or Fig Leaf ?", in Legal Issues o f the Maastricht Treaty, O'Keeffe, David & Twomey, Patrick (eds.), London, Chancery, 1994, pp.65-83; Jacqué, J.P.,

"Rapport Communautaire", Le Principe de Subsidiarité, XVI FIDE Congress, Rome, 1994, pp.l3-38;

Koopmans, T. "The Quest for Subsidiarity", in Institutional Dynamics o f European Integration, Vol.II, by Curtin, D. & Heuklels, T.fed.), Dordrecht, Martinus Nijhoff, 1994, pp.43-55; Lenaerts, K. & van Ypersele, P., "Le principe de subsidiarité et son contexte: étude de l’article 3 B du Traité CE", CDE, Vol.30, 1994, No. 1-2, pp.3-85; Marquardt, Paul D., "Subsidiarity and Sovereignty in the European Union", Fordham International Law Journal, Vol.18, 1994, No.2, pp.616-640; Neunreither, K.,

"Subsidiarity as a Guiding Principle for European Community Activities", in Government and Opposition , Vol.28, No.2, pp.206-220; Palacio González, José "The Principle of Subsidiarity (A guide for lawyers with a particular community orientation)“, ELR, Vol. 20, 1995, No.4, p. 355-370; Philip, C. & Boutayeb, C. "Subsidiarité (Principe de - )", in Dictionnaire Juridique des Communautés Européennes, Barav, Ami

& Philip, Christian (eds.), Paris, P.U.F., 1993, pp. 1023-1035; Steiner, J., "Subsidiarity under the Maastricht Treaty", in Legal Issues o f the Maastricht Treaty, op.cit., pp.49-64; Toth, A. G. "The principle of subsidiarity in the Maastricht Treaty", CMLRev, Vol. 29, 1992, No.6, pp.1079-1105; Toth, A.G.. "A Legal Analysis of Subsidiarity", in Legal Issues o f the Maastricht Treaty, op.cit., pp.37-48; Toth, A.G.,

"Is Subsidiarity Justiciable ?", ELR, Vol. 19, 1994, No.3, pp.268-285; Van Kerbergen, K. & Verbek, B.

"The Politics of Subsidiarity in the European Union", JCMS, Vol.32, 1994, No.2, pp.215-236; and Weatherill & Beaumont, op.cit,, pp.779-782. See also, in a more general perspective on division of powers between the Community and Member States: Fischer, Thomas C , M 'Federalism' in the European Community and the United States: A Rose by Any Other Name", Fordham International Law Journal, Vol. 17, 1994, No.2, pp.389-440; Lenaerts, K., "Some Reflections on the Separation of Powers in the European Community", in CMLRev, Vol.28, 1991, No.l, pp.l 1-35; Moravcsik, A., "Preferences and Power in the European Community: A Liberal Intergovemmentalist Approach", in JCMS, Vol.31, 1993.

pp.473-524; Pollack, M. A. "Creeping Competence: The Expanding Agenda of the European Community", Journal o f Public Policy, Vol. 14, 1994, No.2, pp.95-145; and Weatherill, S., "Beyond Preemption ? Shared Competence and Constitutional Change in the European Community", in Legal Issues o f the Maastricht Treaty, op.cit., pp.l 3-31.

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.

While the first paragraph of this provision confirms the principe d'attribution des compétences, and the third paragraph formalises the proportionality principle, it is the second paragraph that refers to the "principle o f subsidiarity".

The subsidiarity principle has deep historical roots,45 and is not exactly new within the Community legal order.46 It is also subject to various understandings. In any case, its basic idea is that power should be allocated so as to favour local control except where broader common interests predominate.47 A larger unit shall only assume functions

"insofar as the smaller units of which it is composed are unable or less qualified to fulfil their role."48

It is out of the scope o f this chapter, as well as of this thesis, to analyse in depth the subsidiarity principle. Here what is important is to determine whether the subsidiarity principle, as introduced by the Treaty on European Union, brought significant changes to the existing E C Treaty regime on Community competence to act on third country nationals. Does it make any fundamental difference for the possibility that the Community adopt measures on third country nationals?

T o start with, some general remarks can be made.

The first is the following. It is undoubtedly true that the intention behind the inscription o f the subsidiarity principle in the E C Treaty was to limit Community action and emphasise the general competence o f Member States.49 However, it has also been argued that the reasoning underlying the subsidiarity principle actually reinforces the justification for the adoption of Community action, since it calls for a general functional justification o f Community and Member States actions.50

4 5 See, generally, Millon-Delsol, VÉtat subsidiaire, ìngérence et non-ingérence de VÉtat: le principe de subsidiarité aux fondements d e Vhistoire européenne, Paris, PUF, 1992. In one way or another the idea of subsidiarity was used by Aristotle, Thomas Aquinas, Proudhon, Tocqueville. See also the 1931 encyclical Quadragesimo Anno, of Pope Pius XI, and Article 72 of the German Gnindgesetz (the German Basic Law).

4 6 See, e.g., Article 130R(4), introduced by the Single European Act in the EEC Treaty, providing that

"The Community shall take action relating to the environment to the extent to which the objectives [of preserving, protecting and improving the quality of environment; contributing towards protection of human health; and ensuring a prudent and rational utilisation of natural resources] can be attained better at Community level than at the level of the individual Member States. Without prejudice to certain measures of a Community nature, the Member States shall finance and implement the other measures."

See also Article ¹2(2) of the Parliament's "Draft Treaty Establishing the European Union" of 1984, quoted supra. See, generally, Cass, op.cit., pp. 1110-1128.

4 7 Marquardt, op.cit., p.618.

4 8 Neunreither, op.cit., p.207.

4 9 See Constantinesco, op.cit., p.l 1, and Jacqué, op.cit, p.38.

5 0 See Marquardt, who states that: '[subsidiarity reduces the question of sovereignty to one of efficiency.

Without the emotional and historical appeal of the classical vision of sovereignty, the state is reduced to a functional justification. (...) In the long run, nation-states forced to fight on subsidiarity's field of functional efficiency must lose power.' See Marquardt, op.cit., p.636-7. See also Steiner, op.cit., p.52.

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Secondly, the subsidiarity principle is relevant for the Community competence to act on third country nationals since, as explained before, there is no exclusive EC competence to act in this field.51 As will be explained below, the Community may act on issues concerning third country nationals mainly under Articles 100 and 235 of the EC Treaty. These provisions grant the Community a potential competence, which, by its own nature is a concurrent or shared competence. It is to Community action under this type of competence that the subsidiarity principle applies.

Thirdly, it may be recalled that the subsidiarity principle does not confer or withdraw Community competences. It just allocates the exercise of competences that have already been created by other Treaty provisions.52

However, what about the competences' exercise? Does the subsidiarity principle established in Article 3B introduces significant new limits on the exercise of Community competences to act on third country nationals?

In my view that is not the case. It is submitted that the formal inclusion of the subsidiarity principle in the EC Treaty, through the new Article 3B, did not exclude or substantially reduce the possibilities for the EC to act on issues concerning third country nationals.

A first important point to draw this conclusion relates to Articles 100 and 235 of the EC Treaty, which are still in force after the Treaty on European Union. Below, in this chapter, it will be seen that these are the main EC Treaty provisions under which the Community may act on issues concerning third country nationals. Article 100 provides that the Council, acting by unanimity, may

"issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market".

Under Article 235, also by unanimity, the Council may take "appropriate measures", in case that

"action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and [the EC] Treaty has not provided the necessary powers".

The point here is that, arguably, the conditions for Community action to be taken under these two provisions are equivalent to those of the subsidiarity principle.53 Article 100 refers to approximation of rules that "directly affect the establishment or functioning of the common market". Article 235 refers to Community action that proves "necessary to attain, in the course of the operation of the common market, one of the objectives of the Community". In Article 100 the need for common action is implicitly required in the 51 Unless the legal status of third country nationals comes under the domain of areas in relation to which the Community has exclusive competence.

52 Philip & Boutayeb, op.cit, p.1026 and Toth, ELR , op.cit., p.269.

53 See also Philip & Boutayeb, op.cit., (who consider that these provisions contain implicitly the subsidiarity principle) and Steiner, op.cit., p.50. Against, Toth argues that the subsidiarity principle cannot apply to Community action taken under Articles 100 and 235. See Toth, CMLRev, p. 1082.1 do not agree with Toth but his position has the advantage of reinforcing my view that the inclusion of the new Article 3B in the EC Treaty did not reduce the possibilities for the EC to act on issues concerning third country nationals.

demanded relation to the "establishment or functioning of the common market". In Article 235 the need for common action is both required explicitly ("should prove necessary to...") and implicitly ("in the course of the operation of the common market"). Therefore, it can be said that these two provisions contain a sort of practical application of the subsidiarity principle.

The required conditions for their use are at least equivalent to those required by the subsidiarity principle. In practical and legal terms it does make sense to adopt EC action under those Articles "only if and in so far as the objectives of the proposed action"

can "be better achieved by the Community", "by reason of the scale or effects of the proposed action". At most the subsidiarity principle reinforces the requirement that any Community action, and thus also Community action on third country nationals, be really necessary and "cannot be sufficiently achieved by the Member States". The proportionality principle reinforces further this idea as far as the extension of the Community action is concerned.54 In any case neither the subsidiarity principle, nor the proportionality principle challenge in basic terms the possibility for the Community to act on third country nationals.

This does not mean that the present author underestimates the repercussions of the subsidiarity principle. Such repercussions are valid for an eventual Community action on third country nationals, as well as for action in other fields. Any EC action has to fulfil the requirements of Article 3B, and notably of its second paragraph. All I want to emphasise here is that the subsidiarity principle does not exclude or substantially reduce (in view of the previously existing legal regime) the possibilities for the EC to act on issues concerning third country nationals.

On the other hand, it could even be said that, under Articles 100 and 235, the conditions for adoption of EC measures are actually more stringent than those established by the subsidiarity principle, since those provisions require explicitly a relation of the EC action to the 'establishment*, 'functioning', or 'operation* of the common market".

Furthermore, the subsidiarity principle as included in Article 3B of the EC Treaty does not exclude the wide margin of discretion enjoyed by the EC institutions (e.g. under Articles 100 and 235) to decide whether it is necessary to adopt an EC measure.55

Thus, it does not seem that the subsidiarity principle substantially reduces the possibilities for the EC to act on issues concerning third country nationals.

There is another important factor pointing in that direction. It relates to the fact that the subsidiarity principle applies not only to the Community activities, but also to those of the European Union in general. According to the last paragraph of Article B of Title I, on Common Provisions, of the Treaty on European Union,

54 This is, to a certain extent, an aspect already included in the subsidiarity principle itself, as inscribed in the second paragraph of Article 3B - "if and in so far as" - seen in conjunction with the EC Treaty provisions that define the Community objectives, notably Articles 2 and 3 of the EC Treaty.

55 This has been pointed out by several authors, who, likewise highlight the political dangers of a strict judicial enforcement of the subsidiarity principle. See, for the both aspects: Constantinesco, op.cit, pp.l 12- 4; Emiliou, N., "Subsidiarity : Panacea or Fig Leaf ?", op.cit., p.78; Lenaerts & van Ypersele, op.cit., pp.77-8; Palacio González, op.cit., pp.366-8, Toth, ELRt op.cit, and Weatherill & Beaumont, op.cit., p.782. See also Cass, op.cit., p. 1130.

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The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 3B of the Treaty establishing the European Community".

Therefore, the subsidiarity principle applies also to action taken under Title VI of the Treaty on European Union, on "Cooperation in the fields of Justice and Home Affairs".

This is further confirmed by Article K.3(2)(b) of that Title, which provides that the Council may

"adopt joint action in so far as the objectives of the Union can be attained better by joint action than by the Member States acting individually on account of the scale or effects of the action envisaged".

The fact that the subsidiarity principle is equally applicable to the Community pillar, and to the third pillar seems to be of a fundamental importance. Some of the most fundamental activities planned of Title VI relate precisely to third country nationals: to ’immigration policy and policy regarding nationals of third countries’, to 'asylum policy' and to ’rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon'.56 There seems to be no reason to believe that an action may be justified under the subsidiarity principle if adopted under Title VI of the Treaty on European Union, but not if adopted under the Community framework. The explicit reference in Article B of the Treaty on European Union to the new Article 3B shows unequivocal that we are talking here of the very same principle. Therefore, it seems clear that the subsidiarity principle, as such, is not an obstacle for the Community to adopt any type of measure, whatsoever, which may be adopted under Title VI of the Treaty on European Union.

What conditions the adoption of EC measures that can be adopted within the third pillar is not the subsidiarity principle, since it applies to both pillars. What conditions the adoption of EC measures on third country nationals are, first, the requirements laid down in Articles 100 and 235 and, secondly, the Community objectives. The objectives of Title VI of the Treaty on European Union may eventually be seen as being broader than those of the European Community. However, to most extent the first pillar (Community) and the third pillar (Title VI of the Treaty on European Union) have common objectives.57 This is particularly clear as far as free movement of persons is concerned. Insofar as Title VI of the Treaty on European Union and the EC Treaty have the same objectives, any measure that can be adopted under the framework of Title VI, can also be adopted under the Community framework - provided the conditions of Articles 100 and 235 are fulfilled.

The subsidiarity principle makes no difference in this respect, since in both frameworks it has to be respected in the same manner. Again, it seems clear that the formal inclusion of the subsidiarity principle in the EC Treaty, in the new Article 3B, did not diminish the possibilities for the EC action on issues concerning third country nationals. It could even be argued that by establishing that the third pillar has to respect the subsidiarity principle, while explicitly envisaging that it will act on third country nationals, the Treaty on 56 See Article K. 1 of the Treaty on European Union.

57 Compare Articles B and Article K.1 of the Treaty on European Union, with Articles 2 and 3 of the EC Treaty. See also, supra in this chapter, point 3 of section B, and, below in chapter 7, my remarks on the relation between Title VI and Community Law.

European Union actually stresses the need for common action on them. In this respect, it may reinforce the justification for adoption of Community measures on third country nationals.

This permits to emphasise another important point.58 The need for common action on third country nationals may be separated from the precise framework in which that action will be adopted and carried out.

Articles 100 and 235 of the EC Treaty, and the subsidiarity principle in general terms, stress the need for a common action as a fundamental condition for Community action to be adopted. But the need for common action on third country nationals is beyond doubt in most of the issues concerning them. The fact that intergovernmental cooperation (both on an ad hoc basis and under Title VI of the Treaty on European Union) acts on issues related to third country nationals is evidence that common action on them is necessary.59 Clearly, the "objectives of the proposed action cannot be sufficiently achieved by the Member States".

This may be of interest for the following reason. In my view, the subsidiarity principle, as established in Article 3B of the EC Treaty, does only consider two hypotheses: either action is better taken by individual Member States, or by the Community. The implicit principle is that action is better taken by Member States.60 In case that is not so, then action should be taken by the Community. In itself, the subsidiarity principle established in Article 3B of the EC Treaty, does not consider a third possibility, i.e. that action may not be adequately taken by Member States, but that it may be satisfactorily taken within an intergovernmental cooperation framework.61 Thus, to this extent, it may be argued that it reinforces the possibility that the Community takes action

This may be of interest for the following reason. In my view, the subsidiarity principle, as established in Article 3B of the EC Treaty, does only consider two hypotheses: either action is better taken by individual Member States, or by the Community. The implicit principle is that action is better taken by Member States.60 In case that is not so, then action should be taken by the Community. In itself, the subsidiarity principle established in Article 3B of the EC Treaty, does not consider a third possibility, i.e. that action may not be adequately taken by Member States, but that it may be satisfactorily taken within an intergovernmental cooperation framework.61 Thus, to this extent, it may be argued that it reinforces the possibility that the Community takes action