A common sense test sounds almost too good to be true. It introduces, at least in a political sense, a third legal principle – besides subsidiarity and proportionality – to safeguard the rights of the Member States. The already existing two principles ensure that – in case of subsidiarity – the Union can act better than the Member States and that – in case of proportionality – the European solution affects the legal systems of the Member States in the least possible manner.

However, a common-sense test, which seems very hard to conceive at the practical level, would add another layer to avoid PR-disasters such as legislation dealing with olive oil labelling, or the famous myths of size of artichoke or shape of cucumber legislation. To implement this, however, is much more difficult than that. This difficulty lies in the fact that there are good reasons to make more European legislation as much as there are good reasons to make less European legislation. This is a matter of perspective, rather than common sense.

For years, legal academics have published on the question of spill over. Spill over refers to the phenomenon that once legislation is made in a certain area, other supporting legislation is needed to ensure its proper functioning. This problem is increasingly become more important as the body of EU law grows.

The European Commission, in other words, will not have a lot of problems applying and passing a common sense test from a pro-European, pro-internal market perspective. The Member States will have no problems claiming that much European legislation does not pass a common sense these.

A nice idea, but very difficult to apply in practice.

Photo: Wikipedia