Reproduced here are the "Main Theses" of the report Between Europe of nations and a superstate. Doctrinal, legal and economic aspects of the project of “deeper integration” in the European Union, edited by Bartosz Zalewski and Tymoteusz Zych and published by the Collegium Intermarium in Warsaw, in cooperation with the Ordo Iuris Institute, during 2021 (but still fully relevant).
The principle of subsidiarity and the problem of ‘legislative inflation’ in the legal order of the European Union
- Any action of the European Union is limited by the powers conferred on it by the Treaties in specific areas, as well as the principles of proportionality and subsidiarity. It is unacceptable to presume the authority of EU bodies in any case with regard to matters not directly communicated to the EU by the Member States.
- The principle of subsidiarity – expressed in Article 5 of the Treaty on European Union and specified in Protocol No. 2 – is one of the fundamental principles of the EU legal order.
- Its essence is the assumption that in areas not falling within its exclusive authority, the Union takes action only if and only to the extent that the objectives of the intended action cannot be sufficiently achieved by the Member States. This is applicable both to the central, regional, and local levels of jurisdiction, and where – due to the scale or effects of the action proposed – the particular solutions can be better achieved at the Union level.
- The principle of subsidiarity is both legal and political. It determines the basic elements of the powers of the European Union bodies and their legislative authority, while also constituting the basis for their political activities.
- The existing doctrine and jurisprudence of the Court of Justice of the European Union have rightly asserted that the essence of the subsidiarity principle is – with the exception of the EU’s exclusive scope of powers – to make decisions at the level closest to its citizens, i.e. the authorities of the Member States.
- The CJEU gives the EU authorities a wide margin of appreciation in making political, economic, and social choices. Hence, only actions directly contrary to the powers of the EU bodies are considered contrary to the subsidiarity principle. For this reason, the best safeguard for the observance of the subsidiarity principle is appropriate activity by the Member States, especially at the stage of EU legislation.
- Taking into account the analyses published by EU bodies, it is reasonable to conclude that failure to comply with the material aspects of the principle of subsidiarity negatively affects the legislative process in the European Union. This in turn leads to its ‘inflation’, i.e. a decrease in the quality of regulations, with a simultaneous increase in their number. This phenomenon is paralled by increasing attempts to ensure security and legal certainty through the legal positivisation of the social life of EU citizens. Moreover, it leads to centralisation and ineffectiveness of implemented public policies.
- Unfortunately, the legislative policy of the European Union – as noticed even in the internal analyses of EU bodies – is characterised by a tendency to create an excessive number of low quality regulations. Due to the fact that these regulations then have to be implemented into national legal systems, the phenomenon of ‘legislative inflation’ is also reciprocated at the level of the Member States.
Inefficiency of management at the central level
- The European Union is not a single region that can be managed effectively without the needs of individual states. Various historical, religious, cultural, social, economic and legal conditions mean that the heterogeneity of the inhabitants of the European Union should be recognised, also in the economic sense.
- The diversity of the inhabitants of the EU means that they have different needs and different desires. The organisation was founded to strengthen peace in Europe. True and lasting peace cannot be achieved without freedom and responsibility. The subsidiarity principle helps to safeguard these key responsibilities. It also has an economic dimension.
- Further federalisation of the European Union may lead to its division into more uniform areas and, as a result, to its disintegration. This is largely due to the strong national identity in countries such as Poland, a different approach to the euro, and other fundamental issues among the inhabitants of EU countries.
- Efforts should be made to develop a governance model in the European Union that will allow for true peace as well as free and responsible development for all its inhabitants.
Are convergence processes taking place in the eurozone countries?
- Research shows that divergence processes are taking place in the analysed euro zone Member States. There was a positive correlation between the level of GDP per capita for the euro zone in 1999 and the increase in GDP per capita of this zone in the years 2000-2019. This means that the poorer countries of the euro zone are losing the race in economic development to the richer countries of this area even more.
- The countries that lost the most from monetary integration were: Greece, Italy, Portugal, Spain, and France. It is worth noting that in the case of these countries, over the years 1999-2019, the gap between the level of GDP per capita of a given country and the average level of GDP per capita for the group of 12 euro zone countries did not decrease but, on the contrary, increased.
- Germany, a key country for further monetary integration, benefits significantly from membership in the monetary union, while the countries of southern Europe are losing out. Germany’s GDP per capita increased significantly compared to the GDP per capita of other euro zone countries between 1999-2019. For example, at the time of the start of currency integration (1999), Germany and Italy recorded a similar level of GDP per capita. On the other hand, 20 years later, i.e. in 2019, Germany’s GDP per capita increased by as much as USD 13,936 more than Italy’s GDP per capita.
- Euro zone countries are going through a period of severe economic crisis caused by the coronavirus pandemic. In 2020, we saw a sharp decline in the real GDP of these countries, and the beginning of this year is also very difficult for them. Industrial production is being rebuilt relatively slowly. We are still dealing with negative dynamics in this segment of the economy
Interference by the European Union in the family law of Member States
- The European Union has no power to intervene in matters of substantive family law in the Member States. Regulations in the field of family law, including matters relating to marriage and parenthood, remain in the exclusive authority of these countries.
- Any pressure on states to create a legal possibility to formalise same-sex relationships, be it in the form of partnerships or same-sex marriage, or to grant marital privileges to such relationships, should be considered as unauthorised attempts to interfere with the family law of the Member States.
- This applies both to attempts to encroach upon these powers through legislation and through strategic litigation aimed at shaping international jurisprudence obliging states to amend their national laws.
- On 5 June, 2018, the CJEU ruled that Member States should recognise ‘same-sex marriages’ entered into in other EU countries under the Free Movement Directive. This judgment constitutes an unjustified and direct interference in the family and constitutional order of a number of EU Member States, including Poland. Article 18 of the Polish Constitution establishes the protection of marriage as ‘a union between a woman and a man’.
- This CJEU judgment constituted a first serious interference in the family law and constitutional order of EU Member States. It was also a formal challenge of the Member States’ legal principles that protect the identity of marriage as a union between a woman and a man.
- Consent for this type of interference by the EU was the first step for further unauthorised actions which constitute violations of Treaty principles.
- In the reality of the Polish legal system, it is unacceptable to grant any kind of recognition to a legal institution or relationship similar to marriage. Article 18 of the Polish Constitution unambiguously closes the path for a potential introduction of ‘same-sex marriage’ in Poland.
- The initial assumptions of the EU regulation on the recognition of parenthood between Member States indicate that the aim of the regulation will be to lead to the acceptance of adoptions made in another country by same-sex couples.
- The proposed regulation is another example of an infringement of the provisions of the Treaty by exceeding the powers vested in the Union’s bodies by the Member States.
The European Union and social rights
- The social policy of the European community has been shaped for many years, starting with the provisions of the treaty establishing the European Coal and Steel Community.
- The creation of the European Union and equipping its organs with the power to issue binding acts of secondary legislation was of great importance for its development.
- Some of the introduced secondary legislation in the field of social policy significantly affected the Polish national interest, and consequently led to a reduction in its competitiveness in relation to other countries.
- The assumptions of the European Pillar of Social Rights lead to the conclusion that the European Union is seeking more and more interference in the legislation of the Member States, often against the scope of granted authority
- The factor limiting the process leading to the creation of the Social Union should be the country’s national interest.
The interference of the EU in the issues of migration policy
- . Immigration policy is another area of internal powers of the Member States in which the institutions of the European Union intervene to a greater extent than they are authorised to do so by the Treaties.
- Certain favourable solutions cannot of course be denied, such as the right of EU citizens to enter and stay in the territory of any Member State only on the basis of an identity card without the need for additional formalities or the right of immediate family members to join them under similar privileged conditions. These powers result from the Treaties and there is no basis for questioning them.
- At the same time, however, in the activities of the EU there is a clear tendency to strengthen the position of the EU institutions, not so much in the interest of citizens, but in the interest of the structures of the organisation itself, which is the European Union. Examples of such actions are the legislation on the Frontex agency, which takes over more and more national powers in the field of border protection, as well as the still pending proposals to strengthen the powers of the European Asylum Support Office, which would completely take over the authority of states to decide on granting asylum to foreigners.
- It is worth mentioning the law-making jurisprudence of the Court of Justice of the EU, which – from the point of view of the Treaties – was to be the body responsible for the interpretation of EU law, and more and more often acts as a quasi-constitutional court, expressing its opinion on the legality of national laws of the Member States, and even imposing on these countries specific solutions in areas where the Union has no authority. An example of such case law is the Coman judgment, which extended matrimonial rights on freedom of movement between Member States to same-sex couples.
EU federalisation in the field of health policy, taking into account selected assumptions of the EU Action Programme in the field of health (‘EU Health Program’) for 2021–2027
- Pursuant to the provisions of the Treaty on the Functioning of the European Union (TFEU), in all its activities the EU is required to respect the sovereignty of the Member States as regards the definition of their health policy and the organisation and delivery of health services and medical care; in this respect, the EU institutions are only authorized to support, supplement, and coordinate actions of the Member States.
- Since the 1980s, we can observe the involvement of the European Union in the promotion of “sexual and reproductive health and rights”. The interpretation of this concept developed by the World Health Organization (WHO) and adopted by the EU institutions mainly focuses on the issue of access to contraception and abortion. The EU consistently attempts to interfere in the health policies of the Member States in order to legalise abortion as an element of ‘sexual and reproductive rights’.
- The ‘EU Health Programme’ adopted in the form of a regulation is based, among others, on the UN sustainable development goals and aims to introduce the concept of ‘sexual and reproductive rights’ into the legal orders of the Member States in the sense given by the WHO.
- The harmonisation of pharmaceutical law is an exception to the principle of the exclusive authority of the Member States in organising national health services and medical care provided for by the provisions of the TFEU. However, also within this regulation, EU law provides for the possibility for the members of the community to sovereignly decide on the admissibility of selling contraceptives and abortifacients on their territory, which is additionally confirmed by the above-mentioned treaty principle.
Cui bono, or the role of the public interest in competition law and its consequences
- The relinquishment of power by a Member State in favor of the European Union is not always an appropriate solution, especially from the perspective of the possibility for the state to protect its „individual” (national) public interest.
- On the basis of antitrust law, it is worth considering whether the solution may be to deprive the European Commission of the authority to conduct antitrust cases and transfer these powers to the exclusive domain of the Member States, with the simultaneous establishment of a cooperation mechanism between the Member States themselves.
- The principle of subsidiarity does not establish a dualism such that: „power belongs either to a Member State or to the European Union”. It establishes a triplicity in the following form: „power belongs to a Member State or to a group of Member States or, ultimately, to the European Union. Further federalisation of the European Union does not have to be connected only or mainly with the deprivation of autonomy from national states, but with a gradual increase in the scope of tasks and powers of the central organs. The recent introduction of the ‘Next Generation EU’ mechanism and its implementation by the reconstruction plans of individual EU countries can be seen as an example of this process.
The ‘Next Generation EU’ mechanism and the threat of further federalisation
- The value of the European Reconstruction Fund, adopted in December 2020 during the meeting of the Council of the European Union, is EUR 750 billion. Due to its scale and the fact that the main element of the fund is the debt mechanism, ‘Next Generation EU’ can be considered a unique programme in the history of the European Union and previously the European Economic Community. Formally, ‘Next Generation EU’ is a special fund which is not an element of the European Union budget but is related to it.
- Further federalisation may be related, in particular, to the introduction of a uniform public-legal levy, which is the plastic tax, and of a completely new, digital levy. Among the levies introduced, it is also the most controversial one. The revenues to the EU budget from the ‘plastic tax’ are estimated at over EUR 5 billion a year. It is also worth noting that although the plastic fee is introduced with ‘Next Generation EU’, which is a programme with a specific time frame, the fee itself is unlimited in time. Thus, from the perspective of the threat of further federalisation, it should be assessed that the nation states took a great risk by agreeing to introduce this levy.
- The introduction of the ‘Next Generation EU’ mechanism, especially in the part related to debt, may herald a significant change in the functioning of the European Union. In the future, there will certainly be other needs and temptations to incur new financial obligations common to all EU countries.
- In the perspective of further federalisation of the European Union, the desired situation – the development of which should be supported by the efforts of Polish lawmakers, politicians and diplomats – should be considered the state in which Poland maintains a high level of transfers from the redistribution mechanism for as long as possible, while simultaneously, constantly and possibly dynamically increasing the benefits of the common market.
Professor and Director General for Development at the Collegium Intermarium in Warsaw, Poland. He has been executive director of the Ordo Iuris Institute and consultant to the Council of Europe, European Parliament, Venice Commission, and U.S. State Department. A Ph.D. in Legal Science, he has taught at leading universities in Warsaw.