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ABSTRACT
The diffusion of the principle of subsidiarity across countries and regions has taken on a variety of forms. In the case of the EU and Australia the observed variation is most striking. The detailed comparison of the governance arrangements in a quasi-federal system with those of a fully established federation reveals a continuing divergence in the actual recognition of subsidiarity concerns.
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Notes
1. Article 23, Basic Law. See Bröhmer (Citation2014, p. 150).
2. According to Article 5, paragraph 2 TEU, ‘under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States’.
3. Article 5, paragraph 4 TEU, according to which ‘under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’.
4. United Nations General Assembly, 16 September Citation2005, Resolution A/RES/60/1.
5. See the last recital of the preamble to the Treaty on European Union, according to which the Union is ‘resolved to continue the process of creating a closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity’.
6. For Aroney (Citation2011, p. 217) also the exercise of the competences according to the principle of proportionality may be seen as a way for principle of subsidiarity to take form.
7. Although favorable to the federation, the case law of the Court shows nevertheless that the Court itself considers the principle of federalism as an issue capable of judicial enforcement, which is less sure for the principle of subsidiarity under the case law of the European Court of Justice (Moens & Trone, Citation2014, p. 168).
8. Amalgamated Society of Engineers v Adelaide Steamship Co Limited (Citation1920).
9. Mutatis mutandis, the same may be said for the European Court of Human Rights.
10. An important line of jurisprudence is related to the definition of the notion of excise duties provided by Section 90 of the Constitution. According to this last provision, the competence in matter of excise duties belongs to the federation but the High Court accepted a broad definition of this notion, making it more likely that state taxes would fall within the definition. See especially Ha (Citation1997). In addition, extension of federation competences has passed through an extensive interpretation of the notion of corporation adopted in Section 51(xx) of the Constitution. See Work Choices (Citation2006).
11. The so-called Melbourne principle has evolved in the case law of the High Court. However, its main scope remains to block federal legislation that may have the effect to threaten the continued existence of a State or States.
12. Queensland Electricity Commission v Commonwealth (Citation1985).
13. See http://www.abc.net.au/news/2016-04-28/malcolm-turnbulls-$5-million-tax-white-paper-scrapped/7367204.
14. United Kingdom v Council (Working time Directive) (C-84/94) [Citation1996] [47]. For the Court whether the measures adopted were too stringent or not must be resolved according to the principle of proportionality: ‘The argument that the Council could not properly adopt measures as general and mandatory as those forming the subject-matter of the directive will be examined below in the context of the plea alleging infringement of the principle of proportionality’.
15. By contrast, in Germany the powers attributed by the Basic Law (Constitution) to the federal states are clearly enumerated, see Bröhmer (Citation2014, p. 132).
16. In the political debate the principle of subsidiarity is commonly associated with the realisation of the common good either in the Catholic tradition or in the Calvinist one (Aroney, Citation2014, pp. 9–10; McKinley Brennan, Citation2014; Weinberger, Citation2014). However, while some scholars establish a link between the specific level of governance and the specific common good to be achieved in order to ascertain the so-called ‘right’ level, others remain much more generic or assume that this level is always the closest level to the citizens.