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Subsidiarity and Self-Interest: Federalism at the European Court of Justice

Harvard International Law Journal, Vol. 41, No. 1, Winter 2000

133 Pages Posted: 7 Apr 2000  

Edward T. Swaine

George Washington University Law School

Abstract

Subsidiarity is the principle which the European Community has begun applying to consider whether federal legislation is necessary, or whether action by the Member States will suffice. This article considers whether subsidiarity should constrain the Court of Justice's jurisprudence as well. It begins by analyzing the federalism problems posed by the Court's case law concerning remedies for the violation of Community law, in particular the doctrine holding Member States liable in damages for failing properly to implement Community directives. After concluding that the Court is required to review this jurisprudence for consistency with the subsidiarity principle, and that the Court's existing compensation and rights-centered rationale is largely insufficient, the article develops a two-fold argument for sustaining Member State liability even under the subsidiarity principle: such liability is essential to deterring Member State cheating on implementation, and encourages the development of directives that delegate rather than precisely prescribe regulatory content. The article concludes by describing possible modifications to prevailing liability doctrine in order to render it more consistent with the subsidiarity and proportionality principles.

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JEL Classification: D7, H7, K0, K1, K2, K4

Suggested Citation

Swaine, Edward T., Subsidiarity and Self-Interest: Federalism at the European Court of Justice. Harvard International Law Journal, Vol. 41, No. 1, Winter 2000. Available at SSRN: https://ssrn.com/abstract=203091 or http://dx.doi.org/10.2139/ssrn.203091

Edward Swaine (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-0608 (Phone)

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