The abuse, the EU can only establish necessary legislation

TheEuropean Union’s (EU) functions are managed by conferral. By granting EUcompetences1,it seems indispensable. Whereas, exercisingEU competences is controlled by subsidiarity and proportionality2.Theoretically, these principles benefit the EU’s legislative competence, yet,conferral and subsidiarity are applied incorrectly.

 Firstly,conferral enables the EU to establish treaties for Member States to follow andMember States to allocate EU’s legislative competences3.Yet, it is impractical for the EU to wait for the Member State’s’ legislativeapproval before enacting laws as this would be time-consuming4.Teleological interpretation may resolve this5,by allowing the EU to adapt legislative competences6.However, interpretations can be manipulated and stray from the correct usage ofconferral.

Evidently, in UK v Council7,the UK claimed that the Union legislator exceeded powers as there was no linkto health and safety8.However, like the historical standing, the Court backed the Union9.Yet, perhaps this is the superior principle by granting legislativecompetences, merely executed by subsidiarity and proportionality10. Secondly,subsidiarity instructs the EU only to act if Member States cannot meet the Treatyobjectives11.Subsidiarity protects Member States’ identity12,and lets them submit legislative proposals13.

However, the Union enforces subsidiarity14,contradicting the principle’s purpose of Member State autonomy15.Indeed, the Laeken Declaration16allowed National Parliaments to enforce subsidiarity, enabling them to ruleproposals as non-compliant17.Yet, the Court of Justice has never declared non-compliancy. Imperial Tobacco18highlights the problematical subsidiarity legislative discretion. Estellaargues that subsidiarity “fails to meet Member States'”19demands. This is mainly due to the Court’s biased application20.

Thus, perhaps subsidiarity is the weakest principle.  Moreover,to avoid power abuse, the EU can only establish necessary legislation toachieve Treaty objectives21.Schwarze defines proportionality as “the most important principle”,22perhaps due to its flexibility/enforcing human rights23.Proportionality balances competing principles,24and individual rights and public policy, implemented in law-making25.However, Member States can adapt the meaning of “necessary”26to suit their interests. In both Commission v UK27and Spain v Council28,the government were at fault for lack of exercised proportionality29.Although there are some procedural requirements for rational statements30,there may be potential various interpretations of “necessary”31.  Clearly,proportionality and subsidiarity “interlock”32,with legislative competences assigned to the Member States.

Then,proportionality limits them to rationally enact laws33.Proportionality balances individual’s rights and public policy34.Subsidiarity delegates legislative powers to the Member States; proportionalityseems to enable individual people’s rights to be more equal to public policythan at EU level, where there is a greater focus on internationalrelations/issues35.At Member State level, individuals have a larger voice, which may only beidealistic without subsidiarity. Adhering toproportionality, it may be necessary for the EU community to delegatelegislative competence to the Member States, to uphold democratic values andshare legal powers. Seemingly, conferral and proportionality “balance the ..

.opposing forces of …

centralisation and decentralisation”, preservingfederal values (Kumm).36 Indeed, “the MemberStates can only exercise shared competence” 37 if the EU has allocated legal powers. Conferral centralises the Union’s competences as Member Statesassign legislative powers back to the EU38. Subsidiarity decentralises the EU’s legal powers bydelegating to local government. Subsidiarity enforces proportionality as decentralisationappears to allow the fulfilment of democratic and necessary EU Treatyobjectives. Article 10.

3 TEU “provides that citizens should participate inthe (Union’s) democratic life”39, allowing “directparticipation in .. the EU decision-making process” 40. This exercises theTreaty of Lisbon’s participatory democracy41.

Thus, conferral andsubsidiarity are linked in centralisation/decentralisation balancing42, according to EUprinciples.Overall, conferral may be the leading principle in shaping legislativecompetences for it allocates legislative powers to EU government43, where the mainlegislative process occurs. Whereas, subsidiarity and proportionality directthe application of powers44. Thus, the threeprinciples work together to limit the EU’s power so it does not actexcessively.

Arguably, proportionality is the least controversial principle45, due to being moral anddemocratic46. The main issue is thelacking enforcement, rather than a faulty principle.  1Author unknown, Analysisof Development Co-operation, ‘The Lisbon Treaty: Article 5’,

html>, accessed 03/12/172 Author unknown, Analysisof Development Co-operation, ‘The Lisbon Treaty: Article 5’, , accessed 03/12/173Author unknown, Analysisof Development Co-operation, ‘The Lisbon Treaty: Article 5’,

lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-european-union-and-comments/title-1-common-provisions/9-article-5.html>, accessed 03/12/174 AnthonyArnull, Damien Chambers, The OxfordHandbook of European Union Law, (Oxford University Press, First Edition,2015),

uk/books?id=WEEFCgAAQBAJ&printsec=frontcover&dq=conferral%20and%20subsidiarity%20EU&hl=en&sa=X&ved=0ahUKEwij-5qEouzXAhXMaVAKHZ13DXMQ6AEIKzAA#v=onepage&q=union%20judiciary%20&f=false>, accessed 06/12/17, pg 775 AnthonyArnull, Damien Chambers, The OxfordHandbook of European Union Law, (Oxford University Press, First Edition,2015), , accessed 06/12/17, pg 776 AnthonyArnull, Damien Chambers, The OxfordHandbook of European Union Law, (Oxford University Press, First Edition,2015),

co.uk/books?id=WEEFCgAAQBAJ&printsec=frontcover&dq=conferral%20and%20subsidiarity%20EU&hl=en&sa=X&ved=0ahUKEwij-5qEouzXAhXMaVAKHZ13DXMQ6AEIKzAA#v=onepage&q=union%20judiciary%20&f=false>, accessed 06/12/17, pg 777 United Kingdom of GreatBritain and Northern Ireland v Council 1996, Case 84/948 Anthony Arnull, Damien Chambers, TheOxford Handbook of European Union Law, (Oxford University Press, FirstEdition, 2015),

co.uk/books?id=WEEFCgAAQBAJ&printsec=frontcover&dq=conferral%20and%20subsidiarity%20EU&hl=en&sa=X&ved=0ahUKEwij-5qEouzXAhXMaVAKHZ13DXMQ6AEIKzAA#v=onepage&q=union%20judiciary%20&f=false>, accessed 06/12/17, pg 789 AnthonyArnull, Damien Chambers, The Oxford Handbook of European Union Law, (Oxford University Press, First Edition,, 2015),

uk/books?id=WEEFCgAAQBAJ&printsec=frontcover&dq=conferral%20and%20subsidiarity%20EU&hl=en&sa=X&ved=0ahUKEwij-5qEouzXAhXMaVAKHZ13DXMQ6AEIKzAA#v=onepage&q=union%20judiciary%20&f=false>, accessed 06/12/17, pg 7710Author unknown, ‘The Lisbon Treaty: Article 5’, , (Analysis of Development Co-operation), accessed 03/12/1711Author unknown, ‘Reviewof the balance of Competences between the United Kingdom and the European UnionSubsidiarity and Proportionality’, (HM Government,December 2014),

gov.uk/government/uploads/system/uploads/attachment_data/file/388852/BoCSubAndPro_acc.pdf>, December),accessed 05/12/17, pg 1712 Rosa Raffaelli, FactSheets on the European Union, ‘The Principle ofSubsidiarity’, (Europarl, October 2017),

europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_1.2.

2.html>, accessed 06/12/1713 Author unknown, , (Europedia, 2011),accessed 09/12/1714 Phil Syrpis, In Defence ofSubsidiarity: The EU Principle ofSubsidiarity and Its Critique by Antonio Estella, (Oxford Legal Journal,Volume 24, No 2, 2004),

jstor.org.openathens-proxy.

swan.ac.uk/stable/pdf/3600595.pdf>, accessed 06/12/17,pg 32915 Rosa Raffaelli, FactSheets on the European Union, Europarl, ‘The Principle ofSubsidiarity’, (Europarl, October 2017),

eu/atyourservice/en/displayFtu.html?ftuId=FTU_1.2.

2.html>, accessed 06/12/1716 Laeken Declaration, 200117 Phil Syrpis, In Defence ofSubsidiarity: The EU Principle ofSubsidiarity and Its Critique by Antonio Estella, (Oxford Legal Journal,Volume 24, No 2, 2004),

org.openathens-proxy.swan.ac.

uk/stable/pdf/3600595.pdf>, accessed 06/12/17,pg 32918 R v Secretary of Stateex parte BAT and Imperial Tobacco, C-491/01, 200219 Phil Syrpis, In Defence ofSubsidiarity: The EU Principle ofSubsidiarity and Its Critique by Antonio Estella, (Oxford Legal Journal,Volume 24, No 2, 2004),

swan.ac.uk/stable/pdf/3600595.pdf>, accessed 06/12/17,pg 32620 Stephen Weatherill, EUConsumer Law and Policy, (Edward Elgar Publishing Ltd, 2013)

co.uk/books?id=rfYBAQAAQBAJ&printsec=frontcover&dq=eu+consumer+law+and+policy+stephen+weatherill&hl=en&sa=X&ved=0ahUKEwjC-4Dy4_XXAhUEZVAKHfxQDaIQ6AEIKTAA#v=onepage&q=annulled%20&f=false>,accessed 06/12/17, pg 2221 Author unknown, ‘ProportionalityPrinciple’, (Europa), , accessed 05/12/1722 Wolf Sauter, ‘Proportionalityin EU Law: a balancing act?’, (Nederlandse Zorgautoriteit, 2013),

pdf>, accessed 03/12/17,pg 223Alan Brady, Proportionality and Deference under the UKHuman Rights Act, (Cambridge University Press, 2012), ,accessed 08/12/17, pg 6124Tor-Inge Harbo The Function ofProportionality Analysis in European Law: NijhoffStudies in EU Law,(Brill, 2015),

com/lib/swansea-ebooks/reader.action?docID=2006477&ppg=213>, accessed 05/12/17,pg 21225 Wolf Sauter,’Proportionality in EU Law: a balancing act?’, (Nederlandse Zorgautoriteit, 2013),, accessed 03/12/17,pg 126Author unknown, ‘TheLisbon Treaty: Article 5’, (Analysis of Development Co-operation),, accessed 03/12/1727 Commission v UnitedKingdom (Judgment) Commission of the European Communities v United KingdomKingdom of Great Britain and Northern Ireland C-40/82, (1982) EUECJ28 Spain v Council, C-310/0429 Elspeth Berry, MatthewJ. Homewood, Barbara Bogusz, Complete EULaw, (Oxford University Press, Third Edition), 201730 Wolf Sauter,’Proportionality in EU Law: a balancing act?’, , (NederlandseZorgautoriteit, 2013), accessed 03/12/17, pg 1431 Author unknown, ‘ProportionalityPrinciple’, (Europa), , accessed 05/12/1732 Author unknown, (HM Government,December 2014), ‘Review of the balance of Competences betweenthe United Kingdom and the European Union Subsidiarity and Proportionality’,, accessed 05/12/17,pg 4633 Author unknown, ‘ProportionalityPrinciple’, (Europa), , accessed 05/12/1734 Wolf Sauter,’Proportionality in EU Law: a balancing act?’, , (NederlandseZorgautoriteit, 2013), accessed 03/12/17, pg 135 Author unknown, ‘TheEU’s International Roles’, (European Union External Action, June 2016), , accessed 07/12/1736Katherine Shaw, LLB(Hons) (Exeter), (June 2015),  ‘Anchoringa subsidiarity and proportionality review by the Court of Justice of theEuropean Union in the context of residency rights and shared competence: alegal, doctrinal and critical analysis’, ,accessed 06/12/17, pg 10337Katherine Shaw, LLB(Hons) (Exeter), (June 2015),  ‘Anchoringa subsidiarity and proportionality review by the Court of Justice of theEuropean Union in the context of residency rights and shared competence: alegal, doctrinal and critical analysis’, ,accessed 06/12/17, pg 10238Katherine Shaw, LLB(Hons) (Exeter), (June 2015), ‘Anchoring a subsidiarityand proportionality review by the Court of Justice of the European Union in thecontext of residency rights and shared competence: a legal, doctrinal andcritical analysis’, ,accessed 06/12/17, pg 10339 Juan Mayoral, ‘DemocraticImprovements in the European Union in the Lisbon Treaty’,(European University Institute, 2011),,accessed 07/12/17, pg 440 Juan Mayoral, ‘DemocraticImprovements in the European Union in the Lisbon Treaty’,(European University Institute, 2011), ,accessed 07/12/17, pg 441 Petr Novak, RosaRaffaelli, Fact Sheets on the European Union, (Europarl, October 2017), ‘ThePrinciple of Subsidiarity’, , accessed 09/12/1742Katherine Shaw, LLB(Hons) (Exeter), (June 2015), ‘Anchoring a subsidiarityand proportionality review by the Court of Justice of the European Union in thecontext of residency rights and shared competence: a legal, doctrinal andcritical analysis’, accessibleat: http://bura.brunel.ac.uk/bitstream/2438/11629/1/FulltextThesis.pdf,accessed 06/12/17, pg 10343Author unknown,(Analysis of Development Co-operation), ‘The Lisbon Treaty: Article 5’, , accessed 03/12/1744 Author unknown,(Analysis of Development Co-operation), ‘The Lisbon Treaty: Article 5’, , accessed 03/12/1745 Author unknown, (HMGovernment, December 2014), ‘Review of the balance ofCompetences between the United Kingdom and the European Union Subsidiarity andProportionality’, , accessed 05/12/17,pg 1746Alan Brady, Proportionality and Deference under the UKHuman Rights Act, (Cambridge University Press, 2012), , accessed 08/12/17,pg 61