The Function of Subsidiarity in Area of Freedom, Security and Justice Law. Some Preliminary Thoughts
Europarättslig tidskrift (2017) Issue 1
Posted: 5 Jun 2017
Date Written: april 2016
The function of subsidiarity in the EU has always been contested and often considered a too political notion in legal context. In the EU setting a major concern for the EU has predominantly been the idea of effective enforcement of EU law at the national level (inter alia supremacy and direct effect) and where national courts have acted as agents of EU values with a strict loyalty obligation towards the EU. In more recent years and in the light of subsidiarity concerns, a move towards regional models and pluralism has started a trend of challenging the traditional judicial hierarchy order with the EU Court of Justice at the apex of the EU law project and of EU legislation overriding Member State concerns. This tension between effectiveness concerns and respecting national and regional templates are well known in EU integration law. Yet the notion of subsidiarity seems particularly relevant in security related context and the idea of an “Area of Freedom, Security and Justice” (AFSJ). This paper serves the purpose of outlining some important questions about the function of subsidiarity in the AFSJ. The ambition of the paper is not so much to provide any sufficient answers, but rather it is to highlight some important aspects of the meaning of subsidiarity in the AFSJ and why it matters for its future.
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