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One of the arguments of this paper is that it is important, within an increasingly interdependent global economic and political environment in which the fora and sites of authority continue to multiply and grow in complexity, to identify criteria for managing the relations between these different sites, [59] and for assessing the appropriateness of decision-making at a given level or levels of government. Within the EU system, these questions find expression largely through the language of subsidiarity and associated concepts such as competence and legal basis. However, although a set of conceptual tools for addressing these issues is clearly necessary, the way in which subsidiarity has been conceived as a legal principle within the EU context is very narrow and limited in its focus. The primary legal formulation in Article 5 (formerly 3b) relies on a series of concepts such as exclusive competence which are unhelpful and circular, it addresses only the two main levels of authority within the European Community (the EC and the Member State), and it privileges efficiency over all other criteria for assessing the appropriateness of particular levels of decision-making.
The Protocol on subsidiarity and proportionality, added by the Treaty of Amsterdam to the EC Treaty, incorporates a somewhat more fluid and potentially more useful approach by 'constitutionalising' the guidelines which were to some extent already being followed by the Community, blurring the lines between the principles of subsidiarity and proportionality, focusing less on the idea of exclusivity and more on the possibilities for sharing competence across different levels of authority through the use of specific types of legal instrument, and emphasising the importance of reasoning and justification of decision-making at least at EC level. However, the range of questions arising in relation to the role of different levels of government and of the various institutions, actors and tiers of political authority go well beyond what is expressed in the various legal formulations of subsidiarity in the EU treaties. Some significant and relatively concrete issues, such as the role of the Court of Justice in managing and altering the relationship between different levels of authority, and many other important questions concerning the relationship with lower and higher levels of government - the subnational, transnational and international levels - are not addressed at all. Nevertheless, it is undoubtedly the case that the relevance and salience of the issues expressed through the language of subsidiarity in the EU context (as indeed is evident from the fact that the political scope of that concept in European law and policy-making is more extensive than its legal parameters would suggest) is increasing rather than declining in recent years. Far from being a transitory notion whose usefulness to seal a political compromise was exhausted once the Maastricht bargain had gelled, the concept of subsidiarity continues to express, and to raise, fundamental questions about the appropriate locus of political and legal authority within a complex and multiple-layered polity, which is itself situated within an increasingly interconnected international 'order'.
[59] See R. Dehousse, EUI Working Paper
92/93 on subsidiarity as a principle for managing interdependence.