Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

legislative proposal shall not be given further consideration (the 'red card' or 'orange card'
procedure). The Commission shall submit each year to the European Council, the EP, the Council
and national parliaments a report on the application of Article 5 TEU. This annual report shall also
be forwarded to the Economic and Social Committee and the Committee of the Regions.
The CJEU shall have jurisdiction in actions on grounds of infringement of the principle of
subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 263 TFEU.
Hence, MS do not only have the possibility to object when legislation is drafted, but they can also
start a procedure before the CJEU. 229 However, Union institutions have wide discretionary powers
when drafting legislation. There are few judgments of the CJEU on the annulment of a Union
environmental measure for non-compliance with subsidiarity principle. 230 Here, the Court always
judges whether the objective of the proposed action of the Directive could be better achieved at EU
level.
The subsidiarity principle is often complemented with the principles of conferral and of
proportionality. 231 These are also included in Article 5 TEU. While the principle of conferral governs
the limits of Union competences, the principles of subsidiarity and proportionality govern the use of
the Union competences. Paragraph 2 states that 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. In the fourth paragraph it is stated that 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. Here, it is chosen not to go in depth into these principles
since this is not relevant with regard to the research question. This is chosen because in the
current debate on the last recommendation of the Commission it is generally not questioned
whether this exceeded what was necessary. It was the other way around: was this
recommendation actually enough to achieve the environmental objectives of the treaties?
Especially the objectives set out in Articles 191 and 194 TFEU and the principles included herein.
This will be reviewed in the next chapter.
With regard to the subsidiarity principle it is also relevant to make a link with the principle of
decentralization. These two are closely intertwined; they both have as their aim to realise that a
matter is to be handled by the lowest (least centralised) authority possible. This aim is also
confirmed by the Treaty, which states in Art. 1 TEU that "[t]his Treaty marks a new stage in the
process of creating an ever closer union among the peoples of Europe, in which decisions are
taken as openly as possible and as closely as possible to the citizen". This is also recognised by
the European Charter of Local Self-Government, which is however not established by the
European Union, but by the Council of Europe. 232 The decentralization principle will further be
discussed in the next paragraph.
Application of principle to environmental issues
As mentioned, Article 5 of the Protocol states that the legislative acts should be justified with
reference to the principles. Three 'justifications' could be distinguished, which allow for EU
environmental action: transnational environmental effects, conflict with Treaties-requirements
(internal market aspects), or clear EU benefits in scale or effects. 233 With regard to the first, EU
environmental action will probably be easily justified. After all, environmental effects do not stop for
229
http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0017_en.htm
230
Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECR I-6451, paragraphs 99-108;
Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraphs 177-185;
and Case C-377/98 Netherlands v EP and Council [2000] ECR I-6229, paragraphs 30-33.
231
http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0017_en.htm
232
European Treaty Series no. 122 – Local Self-Government, 15.X.1985.
233
Jans & Vedder (2012), pp. 15-17; Jans et al. (2000), pp. 27-29.
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