Is the subsidiarity early warning mechanism a legal or a political procedure? : three questions and a typology

Abstract

This Working Paper investigates whether the Early Warning Mechanism (EWM), in which national parliaments check the legislative proposals of the European Union (EU) for their subsidiarity compliance, is essentially a legal or a political procedure. This is closely related to the longstanding debate over whether the principle of subsidiarity itself is a legal or a political concept. Unpacking this debate reveals three distinct questions. First, should subsidiarity and the EWM be studied by legal scholars or political scientists? Second, should subsidiarity and the EWM be implemented by legal or political institutions? And third, do subsidiarity and the EWM entail a legal or a political mode of reasoning? A thoroughgoing theoretical and historical analysis shows that there is persistent disagreement among academic observers and political practitioners alike concerning the legal or political nature of the EWM. Building upon this analysis, it is possible to construct a typology of three approaches to subsidiarity and the EWM: Legal Rule-Following, Political Bargaining, and Policy Arguing.