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On a lecture, I've heard the EU institutions don't have the right to change laws already in place in the member states, so I tried to investigate what could it relate to and found that the principle of subsidiarity is established by the EU law. So are regulations that seem to contradict this principle like the recently passed gun control directive in fact against the EU's law?

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    Subsidiarity to me means that the smallest possible competent unit should decide the case. Maybe in that case that is the EU? Gun control is surely something that affects everyone, everywhere in the EU, especially in the Schengen zone without any border controls. – Trilarion Jan 15 at 21:31
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On a lecture, I've heard the EU instructions don't have the right to change laws already in place in the member states

This is incorrect, for the simple reason that by definition introducing a new law would change the set of laws that exist at a time. Otherwise the EU would only be able to write laws that already exist in every member country.

The principle of subsidiarity doesn't state that EU laws cannot change existing laws, but restricts its power to areas which either are its exclusive competence or cannot be addressed properly at the state level:

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

In OP's example, the gun control directive aims to limit the acquisition and possession of firearms in the EU. It intends to solve the problem of firearms circulating between member states in the Schengen area: somebody can buy a gun in a member country which has lax gun control laws and bring it freely (no border control) to another member state which has stricter gun control laws. Clearly this problem is related to the absence of border controls and cannot be solved at the state level, so the EU can act on it without contradicting the principle of subsidiarity.

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Technically, the EU cannot simply “change“ laws. Without getting into all the intricate details of the various procedures and instruments it's based on, the most important thing to note is that the bulk of EU law is made of so-called “directives”, which the states then have to implement. So it's now up to each member state to change their laws to bring them in line with the directive and to enforce them. The EU is not doing that for them.

Subsidiarity doesn't say anything about preexisting laws versus new laws. It's about whether an issue is better dealt with at the EU level versus the national level. In almost all cases, there are in fact national laws that need to be adjusted when a directive is adopted, whether it's about veterinary inspections, driving licences, VAT or trademarks. You will easily find people who think we would be better served by a more restrained EU or even should do away with the EU altogether but if it couldn't prompt states from changing their laws, it would be a very different (and much less important) organisation.

Quite clearly, preventing that is not what “subsidiarity” means in EU treaties and there is absolutely nothing specific about the gun control directive that would go against that principle compared to just anything else the EU does. In fact, the case for EU-level gun control is quite straightforward (there are no border control in the Schengen area and many high profile cases of criminals or terrorists traveling to another EU country to procure a gun), much more so than for many other EU-level policies.

It's up to the EU institutions themselves to decide whether and how subsidiarity applies to a particular matter and one of the most important institution is the council, which represents the member states' governments. Not all decisions are consensual and other institutions have a large role as well but if all member states disagree with a directive, it will never get adopted, period.

So another way to describe what really happened here is that the EU member states (the various EU countries) agreed to change their law to bring them in line with a minimum standard of firearms control. It's a bit simplistic but still a lot more accurate than the notion that the EU is changing their laws or would be prohibited by its own treaties from influencing them in any way.

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As currently enshrined in Article 5(3) of the Treaty on European Union :

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

In this interpretation the EU doesn't stop member states from doing "better" than the proposed pan-EU standards, but it does hold them to account otherwise.

  • Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States sounds to me exactly as stopping the EU institutions from proposing something like that (doing "better" than what is standard) – Probably Jan 15 at 21:35
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    @Probably you should note the difference between EU institutions and EU member states. – origimbo Jan 15 at 21:37
  • Yeah and the gun control directive has been passed by the EU institutions – Probably Jan 15 at 21:43
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    Exactly, the EU is the one which gets to set "the objectives of the proposed action", i.e. the minimum standard. – origimbo Jan 15 at 21:45

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