The purpose of the ‘subsidiarity principle’ is to ensure that decisions are taken as close as possible to the people they affect and that action is taken at the level where it is most effective. But the EU is taking action in areas where the national, regional and local levels could be more effective and efficient. Markus Nyman, writing for EUWatch (pdf), explores some aspects where this important democratic principle is being ignored.

The subsidiarity principle is intended to ensure that decisions are taken as close as possible to the citizens and that constant checks are made as to whether action at Community level is justified in the light of the possibilities available at national, regional or local level. It is the principle whereby the EU does not take action, except in the areas which fall within its exclusive competence, unless it is more effective than action taken at national, regional or local level.

The subsidiarity principle is often praised by the EU institutions and seems therefore to be of high importance. It is even underlined and strengthened in the EU Constitution. But what about the reality? Do the EU institutions follow the subsidiarity principle? Let me put forward a number of short examples that would question the validity and application of this principle.

Quality of bathing water

Lets start with the directive concerning the management of bathing (76/160/EEC). This directive set standards on the quality of bathing water in the EU. According to the argumentation of the EU Commission the free movement of people within the EU, with increasing cross-border tourism, justifies the need of an EU directive with common high standards in this field. However, the detailed directive has caused irritation among county administration boards and local municipalities in the member states. The argument is largely that the directive is not adopted to particular local circumstances.

Local authorities in northern Sweden have complained that it does not make much sense to control the quality of water in remote lakes on a frequent basis, particularly since the lakes in this part of the country are covered by ice during much of the year. There are obviously major differences between beaches in the Medditereanan, with hundreds of thousands of tourists every year, and small lakes in cold parts of northern Europe. Is it realistic, or desirable, to have common EU rules in this field?

The bathing directive has been improved over the years, in the sence that it is now somewhat more flexible. However, the relevant question is whether bathing-water quality in Europe should be regulated from Brussels in any manner. Are the decisions in this field more efficient if they are taken by the EU, instead of by local or national authorities?

Working hours

The Working Time Directive (93/104/EC) lays down regulations on matters such as how many breaks employees can take, and how much holidays they are entitled to. The directive’s headline regulation is aimed at limiting the average working time for employees in the EU to 48 hours a week. A large majority of the population in the EU probably agrees that it is necessary to have clear labour market legislation. This is in the interest of both the employer and the employee. However, are EU rules more efficient than national rules? Are the member states not capable of deciding their own labour market legislation by democratic procedures and by negotiations between trade unions and employers?

EU countries are democracies with full respect for human rights. They have functional legal systems, including freedom of expression and freedom of organization. The latter means that the employees are allowed to establish and belong to trade unions.

Rules that make sense in one country might be controversial in another due to varying economic development, labour market structures, national conditions and traditions. In the UK, employees can volunteer to work more than 48 hours a week and can in principle work unlimited hours. The current Labour government in the UK does, as in all countries, have a political mandate from the voters. If the political majority in a democratic country is in favour of flexible rules on working hours should the EU then overrule such a political expression? After all, it is not oppressed populations of tyrranical dicatorships we are talking about, but the citizens of EU countries, which are supposed to meet high democratic standards.

Traffic security

The directive on special provisions for passenger vehicles comprising more than eight seats in addition to the driver’s seat (2001/85/EC) aims to secure the safety of passengers in buses. After conciliation between the EU Parliament and the Commission, a number of very specific rules were included in the directive, such as the following paragraph: “When the passenger door is open, the retractable step shall be securely held in the extended position. When a mass of 136 kg is placed in the centre of a single step or a mass of 272 kg is placed in the centre of a double step the deflection at any point on the step shall not exceed 10 mm.”

Another example of detailed regulation in the directive is that the manufacturing of existing low-floor buses with a gangway slope of 12.5% should be stopped within a period of three years, and the provision of a non-slip surface for all sloping areas in buses should be required.

Furthermore, the conciliation negotiations resuted in a broader definition of “persons of reduced mobility” to include not just the elderly and the disabled, but “all people who experience some difficulty when using public transport, such as people with sensory and intellectual impairments, wheelchair users, people with limb impairments, people of small stature, people with heavy luggage, pregnant women, people with shopping trolleys, and people with children (including children in pushchairs)”.

The directive includes safety rules on all buses so they could be used by persons of reduced mobility in accordance with the definition above. However, it did not take into consideration that the member states have chosen different systems for transport of elderly and disabled people. Sweden has a certain transportation service for persons of reduced mobility. Vehicles that are used for this service (taxis and buses) fulfil strict safety criteria. The system with a certain transportation service for disabled people worked satisfactorily. But the country had to implement the EU rules, even in vehicles that are not used for the purpose of transporting disabled people or persons with reduced mobility.

Directive 96/53/EC on weights and dimensions in road transport sets out the maximum allowable length for buses in international traffic. But since the length of buses varies in the EU the rules caused irritation at the national level. Directive 96/96/EC on roadworthiness tests for motor vehicles and their trailers sets out detailed rules on how the member states should conduct motor vehicle inspections. After long debates and negotiations it was decided, among other things, that windscreens must be replaced if scratches are found on them during regular motor vehicle inspections in the member states.

The added value of EU rules compared with national rules within the field of traffic security could be debated in many cases. The geographical conditions in the EU differ, in particular the climate, and recommendations and legislation that might be valid in one country, are not necessarily practical in another. It becomes somewhat comical when in its report on the European Road Safety Action Programme (A6-0449/2006) the European Parliament “calls on the Member States to acknowledge the dangers inherent in driving vehicles (in particular commercial vehicles) with snow and ice on their roofs and, on that basis, to draw up recommendations for the establishment of a comprehensive network of ‘snow removal areas’”. Is this a recomendation for Finland, as well as for Malta?

Hunting

The EU does not have a common hunting policy, but a number of EU directives affect hunters, as well as the possibility for local and national authorities to make decisions related to hunting and nature conservation.

The Habitats Directive (92/43/EEC) and the Birds Directive (79/409/EEG) aim to protect certain predators and birds in the member states. The directives aim to ensure that the populations of rare species in the EU are kept stable. However, the populations of specific species differ radically within the EU. It is therefore difficult to apply the same directive from Gibraltar to the border of Murmansk.

Species that are rare in one member state might be common in another EU country. The county administrative board in Sweden’s fourth largest city, Uppsala, was in favour of protective hunting of rooks, which are very common in the city, causing problems in terms of noise and guano. However, protective hunting was not a possible option due to the fact that rooks are protected in EU’s Birds Directive. The Commission proposed to the local authorities to fell trees, remove tree branches or to cover the tree tops with net. The local authorities had to accept the opinion of the Commission, knowing that those specific measures caused new problems, in particular for other bird species in the area.

There are similar examples where local authorities in member states advocate protective hunting of bird species, for example cormorants, or of predators, such as wolves, but where the Commission’s response was in the negative due to the fact that the species in question are rare in the EU as a whole, even if considered to be common at the local level. The question arises as to whether the local authorities in the member states have a better knowledge than the Commission about species that should be protected at the local level, and whether they are in a better position to take the necessary measures to maintain the desirable population levels of certain species.

Other issues - from circus to urban environment

The European Parliament report on new challenges for the circus as part of European culture (A6-0237/2005) proposes a number of harmonization measures for circuses in Europe. The report “Calls on the Commission to introduce specific measures to ensure that the circus is recognised as forming part of European culture” and “Calls on the Commission […] to create a standardisation mandate for the European Committee for Standardisation (CEN) to prepare a comprehensive set of standards relevant to mobile circus facilities, including finalisation of current work on the Safety Standard for Temporary Structures (such as tents), to facilitate the movement of circuses among the Member States through harmonisation and thereby contribute to the conservation of the European classical circus and public safety”.

The Parliament report on the thematic strategy on the urban environment (A6-0233/2006) includes a number of detail-regulating proposals. In this report, the Parliament “believes that more attention should be paid to preventing and removing dirt, litter, graffiti, animals’ excrement and excessive noise from domestic and vehicular music systems”. In addition, the report has views on congestion charges, parking limitations and town planning within the EU.

The Parliament report on film heritage and the competitiveness of related industrial activities (A6-0101/2005) put forward a number of proposals on how the member states should archive, catalogue and collect films. Member states should also “promote the use of the film heritage as a way of strengthening the European dimension in education and promoting cultural diversity; foster and promote visual education, film studies and media literacy in national educational systems”. In fact, even the EU Constitution states that action by the EU shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and complementing their action in the area of artistic and literary creation, including the audiovisual sector (Article III-280).

The proposed EU Constitution states that the “Union shall complement the action of the Member States in the tourism sector, in particular by promoting the competitiveness of Union undertakings in that sector” (Article III-281) and that Union action shall be aimed at “encouraging the development of distance education” (Article III-282). It could be seen as somewhat contradictory that the same constitution that underlines the importance of subsidiarity and introduces a major innovation in this regard, even suggesting that the national parliaments should be directly involved in monitoring the proper application of the subsidiarity principle, should also include areas such as tourism and distance education.

The debate on whether the subsidiarity principle is followed or not is of importance not only for the academic record, or in order to provide some entertaining examples of questionable proposals and legislation from the EU institutions. It is important because it is a vital question concerning democracy and at which level decisions should be taken.

Markus Nyman is a researcher with the Swedish delegation in the IND/DEM Group in the European Parliament.

Source: EUWatch (pdf)