Dating Cinderella: On Subsidiarity as a Political Safeguard of Federalism in the European Union

The aim of this paper is to provide a brief overview of the debate on the subsidiarity principle. Subsidiarity is one of the most ambiguous and debated notions in law and it definitively belongs to all the legal disciplines; from EU law to constitutional and administrative law passing through human rights law . The debate on this principle has been enriched recently by a number of papers and books focused on the new provisions concerning national parliaments included in the Lisbon Treaty. When dealing with subsidiarity, the impression, at the first glance, is that of a Cinderella principle because of its evanescent nature (rule or principle?) and of its difficult justiciability. This paper suggests that just a strong change in the ECJ’s case-law might transform our Cinderella into a real constitutional principle. Despite the vast existing literature , I have decided to focus on a few, in my view, fundamental readings on this point, by attempting to describe the noble design behind the introduction of the subsidiarity principle in EU law and the re-evaluation of the weight of this concept in the practice of courts. In doing so, I started from the very recent contribution of Robert Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law , where he defines subsidiarity as a “political safeguard” of EU federalism. The first part of the paper thus will be devoted to the theoretical analysis of subsidiarity principle, understood. In the second part of the paper, I will try to show how the interpretation of subsidiarity as followed by the ECJ is misleading and, consequently, how the choice of the Lisbon Treaty to rely on the national parliaments as the most suitable watchdogs of subsidiarity has to be regarded as unsatisfactory.