The Enforceability of Subsidiarity in the EU and the Ethos of Cooperative Federalism: A Comparative Law Perspective

In this article, I will tackle the issue of the enforceability of subsidiarity in the EU and, more specifically, I will deal with the following questions: if and to what extent subsidiarity is justiciable; if the full justiciability of subsidiarity would be politically sustainable; and if there are any alternatives to the judicial enforcement of subsidiarity. I will argue that subsidiarity is justiciable, even though its judicial enforcement should be limited to particular situations. I will also argue that full justiciability of subsidiarity would be politically unsustainable in the long run and that a balanced combination of judicial review, procedural arrangements and political cooperation is the only alternative to an all-encompassing judicial enforcement of subsidiarity. In tackling this issue, I will use a comparative law approach in that I will make extensive reference to the legal systems of Germany and Italy.