On the Possible (and Necessary) Role of Subsidiarity in Legitimate Multi-Level Governance

Federalism has been offered as a framework for analysis of the EU legal order, ie as a useful way for thinking about questions of who does what, where and how. Similar questions have been raised in international law. The principle of subsidiarity is amongst legal mechanisms that purport to answer the ‘who’ and ‘where’ questions. However, in spite of recognition that the federalist questions of ‘who’, ‘where’, ‘what’ and ‘how’ are useful to pose in multilevel governance systems, legal principles for the allocation of authority are much contested, and the principle of subsidiarity is no exception to this. Subsidiarity has critics, but also defenders. This contribution engages with one sceptical view about the role of the principle of subsidiarity for deciding upon and reasoning about competences, and law’s legitimacy in multilevel governance contexts for integrated/liberalised markets in the EU and the world trade order. It is suggested that one needs to distinguish a critique of the principle as enshrined in and applied through positive law from a critique of one amongst several possible constructions of the principle of subsidiarity, and finally from a critique of the best possible construction of the principle of subsidiarity. The last type of critique, this chapter argues, cannot be valid. Ultimately, the suggestion is, it is not the principle of subsidiarity that is problematic, for it is intertwined with our reasoning about law’s validity, but how it is given substance through application. Because the principle of subsidiarity is intertwined with the validity of law, one would expect to find it also in WTO law. The last part of the paper therefore reviews instances in WTO dispute settlement that can be reconstructed as involving elements of the subsidiarity principle as here understood. It analyses the EC-Asbestos, US-Shrimp and Korea-Beef cases