Pls ELI5 the emboldened phrase? I know what a tautology is.

Robert Schütze. European Union Law 2 ed. 2018. pp 261-263 scanned.

Once the Council has found that it is necessary to improve the existing level of protection as regards the health and safety of workers and to harmonise the conditions in this area while maintaining the improvements made, achievement of that objective through the imposition of minimum requirements necessarily presupposes [Union]-wide action, which otherwise, as in this case, leaves the enactment of the detailed implementing provisions required largely to the Member States. The argument that the Council could not properly adopt measures as general and mandatory as those forming the subject-matter of the directive will be examined below in the context of the plea alleging infringement of the principle of proportionality.166

      The quoted passage contained two fundamental choices. First, the Court assumed that where the Union had decided to ‘harmonise’ national laws, that objective necessarily presupposed Union legislation. This view answers the national insufficiency test with a mistaken tautology: only the Union can harmonise laws, and therefore the Member States already fail the first test!
      But assuming the ‘whether’ of European action had been positively established, could the Union law go ‘as far’ as it had? This was the second crucial choice of the Court. It decided against the idea of subsidiarity in a wider sense. For, instead of analysing the intensity of the European intervention under Article 5(3) TEU, it chose to review it via the principle of proportionality under Article 5(4) TEU. And it is there that the Court made a third important choice. In analysing the proportionality of the Union law, it ruled that ‘the Council must be allowed a wide discretion in an area which, as here, involves the legislature in making social policy choices and requires it to carry out complex assessments’. Judicial review would therefore be limited to examining whether the legislature’s discretion ‘has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion’.167 The Court would thus again apply a low degree of judicial scrutiny.168
      Choices one and three have been confirmed in subsequent jurisprudence. By concentrating on the national insufficiency test, the Court has short-circuited the comparative efficiency test.169 It has not searched for qualitative or quantitative benefits of European laws, but confirmed its manifest error test – thus leaving subsidiarity to the political safeguards of federalism.



So the national insufficiency test says the EU should only act where the objective in question cannot be achieved by Member States.

Here, the objective was (in part), harmonisation.

However, if only EU legislation can harmonise laws, as the case says, then the EU will always, automatically be justified in taking harmonising action under this test - making it tautological.

The author suggests that there should be a question asked as to whether harmonisation can be achieved member state level in each case, rather than saying it always requires EU legislation and therefore automatically skipping over that step.

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