Subsidiarity Ex Ante and Ex Post: From the Early Warning System to the Court of Justice of the European Union

Abstract

AbstractThe subsidiarity principle divides competences between the European Union and its Member States. The Lisbon Treaty suggests a connection between ex ante and ex post subsidiarity review. Ex ante, national parliaments were given a role via the early warning system (EWS). Ex post, legislation is subject to review by the Court of Justice of the European Union (CJEU). More than 10 years after Lisbon, this article is the first to theorize and evaluate whether there is indeed a connection. Our theory predicts a conditional connection. Quantitatively, we provide a two‐way classification of Member States based on their use of the EWS and CJEU subsidiarity cases. Qualitatively, we look back from court cases to the Council stage and analyse the Advocate General's opinions in subsidiarity cases. We find a weak conditional connection. A key explanation appears to be the Court's limited willingness to enforce subsidiarity and hence the limited incentives to go to court.