Letter: Subsidiarity in the EC will not preserve national sovereignty

Sir: As a former senior legal adviser of the European Commission, I am dismayed by the way in which the principle of subsidiarity is often presented in the UK. Many of your commentators give the impression that under this principle substantial areas of government will be returned to unfettered national jurisdiction, which is not quite correct.

Whatever the scope of the domain of retained powers, the exercise of these powers is rarely fully sovereign. Abundant case law of the European Court of Justice has made it clear that whenever the exercise of retained powers is liable to affect the proper functioning of the internal market, member states are obliged to adopt such measures as interfere least with the unity of that market. Disregard of this treaty obligation renders the national measure incompatible with Community law, and therefore inapplicable if questioned before a national court.

In other words, the Maastricht treaty imposes a blanket restriction on such exercise of market- related retained powers as would unduly restrict the free movement of persons, goods, services or capital. Even after the adoption of the treaty, the interdiction to protect national markets will continue to intrude in national affairs throughout the Community. Quite often this may be to the UK's advantage.

As a result, subsidiarity presented as a right to reassert unfettered national sovereignty over considerable areas of government gives false hopes to the nationalists on the Community's biggest island, is not in the interest of the United Kingdom and is really a bit of a fraud.

Yours faithfully,

BASTIAAN van der ESCH

Brussels

1 July 1