Appendix 2: Could Subsidiarity Be ‘Praemunire’ in Sheep’s Clothing?

Publication Date06 December 2018
Date06 December 2018
Under current EU Law, both of the supranational legislative bodies (The
European Commission and The European Parliament) are restrained in what
they can do by the principle of subsiduarity, which is set out in the
Governing Treaties and is interpreted by the European Court of Justice.
The EU framework for the Subsidiarity Principlewas formally adopted in
the Maastricht Treaty, further codied in the Amsterdam Treaty and embed-
ded into the Lisbon Treaty.
In practical terms, this mechanism acts by
challenging the right of the European Institutions to be the rst and right
place to legislate. The subsiduarityprinciple suggests there should always
be a preference to take action at a Member State level rather than EU level
unless the competence is specically assigned to the EU in the Governing
This Principlehas been tested in the European Courts. For example, in
the 2010 Fundación Gala-Salvador Dali case, the court recused itself on the
basis that the issue as to whom royalties on copied artworks should be paid
is not within EU competence as [the];
preamble to Directive 2001/84 [] did not, in accordance with the
principle of subsidiarity, consider it appropriate to take action
through that directive in relation to Member Stateslaws of
succession, thus leaving to each Member State the task of dening
the categories of persons capable of being considered, under
national law, as those entitled. (ECJ, 2010)
Importantly, the decision was based on how the preamble in the Directive
was worded and not upon the Treaty Article governing Subsiduarityitself.
Although the Treaty grants an absolute right, in practice, the court restricted

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