Invisible Cities in Europe

Fernanda Nicola, American University Washington College of Law


Cities in Europe control municipal services, varying from education, public health, waste management and housing policies, that at times clash with European Union rules regulating the functioning of the Internal Market. For this reason, cities are often actors in judicial proceedings before the European courts. The Lisbon Treaty has revived the judiciability of the subsidiarity principle by giving new powers to subnational actors to participate in the formation of EU law. Yet even though policy-makers promote local participation and democracy, judges, in striking down or upholding local welfare policies that conflict with Internal Market rules, have rendered cities invisible. In balancing conflicting EU versus Member States interests as two autonomous and independent spheres of power, European judges rely on a fiction of non-intervention in state-local matters. In their decisions, city interests are either subsumed into State or EU goals, or they are reduced to private market actors. Cities have traditionally been seats of civilization and flourishing of an integrated Europe but with the Internal Market, they have necessarily taken a back seat. To redress the balance, judges should address the fact that what is decided in Luxembourg inevitably affects the redistribution of power and resources in state-local relations. By exposing the interdependence between the powers of the Union, its Member States and the plurality of cities that constitute them, such process will create greater democratic accountability in the Internal Market jurisprudence.