The Lisbon Treaty and the New Dimensions of the Principles of Proportionality and Subsidiarity

• Author: Professor Vasilica Negrut, PhD
• Position: "Danubius" University of Galati

Introduction

The debates determined by the European principles of subsidiarity and proportionality occupy a very important place in the present context and are concretized in a vast specific literature.

The theoretical assets in this filed underline multiple perspectives of approach but also the difficulty of characterizing the aspects related to the application of the two European principles as this problematic does not belong to a sole scientific field. Although there is an important number of works and studies consecrated to this subject, we have the purpose of underlining the premises of applying the principles of proportionality and subsidiarity according to the modifications produced after the entering into force of the Lisbon Treaty.

The consecration of the two principles, in distinct manners, in the Treaty on the European Union demonstrates their role and functions on the organization and reorganization of the European construction. If according to the principle of proportionality the means used by authorities have to be proportional with their purpose, subsidiarity is a manner of proximity political organization, that merges the necessity of sovereignity respecting the autonomy and is the only that can assume the diversities of the European Union and the simultaneously objectives of extension and thoroughgoing of the process of integration and preservation of member states' sovereignity (Veliscu, p. 174).

I The Concept of Proportionality

The principle of proportionality is expressly consecrated in article 5, paragraph (3) in the Maastricht Treaty¹ but in the literature (Jacobs, 1999, p. 23) it is asserted that the origin of this principle is found in article 40, paragraph (3) of the Treaty Establishing the European Economic Community, signed in Rome on March 25^th, 1957.

According to the German perception (Schwarze, 1992, p. 687) the principle of proportionality has three dimensions: the measure has to be adequate to the purpose intended; the measure has to be necessary and there is not another way to solve a problem; the measure has to be proportional with the purpose intended.

A very special role in developing the principle of proportionality belongs to the European Court of Justice that initially followed the path of the German legislation and then, thorough the legislation of the European Community penetrated most of the European administrative systems. The Court approaches proportionality as a general principle of law² which, together with the other general principles of law (Apostol Tofan, 2006, p. 29) has the purpose of controlling the community actions where there are express regulations in the specific field at European level (Jacobs, 1999, p. 3). According to this principle, the means used by the authorities have to be proportional with their purpose (Manolache, 2006, p. 43). The administrative action has to be performed in a proportional manner with the process, not depriving the citizens of any right that would lead to the reaching of the purpose

The principle is imposed especially in applying administrative or criminal measures. Considering this aspect, it has been established that any measure that surpasses what is strictly necessary for the purpose of giving the member state the possibility of reasonably obtaining complete information on the movement of goods that belong to the specific frame of the commercial policy measures has to be interpreted as being a measure with the equivalent effect of a quantitative restriction forbidden by the Treaty.

The literature indicates that the principle of proportionality in present in the public law of most of the member states³ of the European Union (Ziller, 1996, p.185). At the same time it is stated that there should be a distinction between the states in which this principle is applied in the administrative law (Germany, Portugal, Austria and The Netherlands) and those in which its use is limited to the field of applying the community law.

The nature of the principle of proportionality differs according to the state because of its formal origin⁴ as well as because of the functions it fulfils (Ziller, 1996, p. 186). The principle of proportionality is found also in the European Code of Good Administrative Conduct that stipulates that "in adopting decisions, the public servant will make sure that the measures taken are proportional with the purpose". Also, "the public servant will avoid the limitation of citizens' rights or imposing obligations to the citizens, in case such limitations or obligations are not in reasonable relation with the purpose of the action". In the decision making, the public servant has to respect the right balance between the interest of private persons and the general public interest.

If in the national law, the principle of proportionality is applied in fields such as expropriation, legitimate defense, power abuse, in the community law it application is related to the limitation of the community competencies and the means used for accomplishing it.

In the community law, the principle of proportionality has the role of identifying the substance and the sense of fundamental liberties declared in the constitutive treaties, complementary with the principles of justice and equity. The principle or proportionality has a considerable importance in protecting the individual due to its role of "guarantee of substance" regarding the protected fundamental rights (Alexandru, 2005, p. 221). Also, proportionality is in strong connection with the reasonable and it also means that is...