Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.39 N° 68
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 39, Nº 68 (Enero - Junio) 2021, 356-368
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
The Subsidiarity Principle and Legal and
Economic Aspects of The Decentralization
in Ukraine
DOI: https://doi.org/10.46398/cuestpol.3968.22
Sergiy Kvitka*
Yevgeniy Borodin**
Volodymyr Yemelyanov***
Mykhailo Moskalets****
Viktoriia Zubchenko*****
Abstract
The research highlights the peculiarities of the decentralization
of power in Ukraine in the political and legal implementation
aspect of the principle of subsidiarity. The objective of the study
was to determine compliance with the political and legal aspects of
the decentralization process in Ukraine based on global standards
of the use of the principle of subsidiarity, during the implementation of
decentralization reform. The research methodology is based on the fact
that the principle of subsidiarity is the main feature of the interaction of
all levels of power. This premise is recognized in the European Charter
of Local Self-Government and therefore means an urgent task in modern
Ukraine. Financial decentralization, district consolidation, the creation of
different but united territorial communities, changes in the administrative-
territorial structure, ensuring the capacities of communities, the provision
of public services in accordance with national standards must be based on
* Doctor of Science in Public Administration, Professor, Dnipropetrovsk Regional Institute for Public
Administration National Academy for Public Administration under the President of Ukraine, Ukraine.
ORCID ID: https://orcid.org/0000-0003-3786-9589. Email: skvitka14790@gmail.com
** Professor, Dnipropetrovsk Regional Institute for Public Administration National Academy for Public
Administration under the President of Ukraine, Ukraine. ORCID ID: https://orcid.org/0000-0002-
7331-5981. Email: e.i.borodin@vidr.dp.ua
*** Doctor of Sciences in Public Administration, Professor of the Department of Public Management
and Administration, Director of the Institute of Public Administration of the Petro Mohyla Black Sea
National University, Ukraine. ORCID ID: https://orcid.org/0000-0002-2995-8445. Email: d_idu@
ukr.net
**** PhD, Associate Professor in the Department of Public Administration and Law of Communal Institution
of Higher Education «Dnipro Academy of Continuing Education» of Dnipropetrovsk Regional Council,
Dnipro, Ukraine. ORCID ID: https://orcid.org/0000-0003-3079-158X. Email: m_moskalets@ukr.
net
***** PhD, Associated Professor, Department of Finance, Banking and Insurance, Bila Tserkva National
Agrarian University, Ukraine. ORCID ID: https://orcid.org/0000-0002-1292-1726. Email:
vikazubchenko@ukr.net
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the principle of subsidiarity. The information gathered makes it possible to
conclude that the principle of subsidiarity is a barrier to the overly profound
centralization of the state body and the separation of power.
Keywords: subsidiarity; political and administrative decentralization;
deconcentration of power; local self-government; Ukraine.
El principio de subsidiariedad y los aspectos legales y
económicos de la descentralización en Ucrania
Resumen
La investigación da cuenta de las peculiaridades de la descentralización
del poder en Ucrania en el aspecto de la implementación política y legal
del principio de subsidiariedad. El objetivo del estudio fue determinar
el cumplimiento de los aspectos políticos y legales del proceso de
descentralización en Ucrania con base a los estándares mundiales del
uso del principio de subsidiariedad, durante la realización de la reforma
de descentralización. La metodología de investigación se basa en el hecho
de que el principio de subsidiariedad es la característica principal de la
interacción de todos los niveles de poder. Esta premisa es reconocida en
la Carta europea de autogobierno local y signica, en consecuencia, una
tarea urgente en la Ucrania moderna. La descentralización nanciera,
la consolidación de distritos, la creación de comunidades territoriales
diferentes pero unidas, los cambios en la estructura administrativo-
territorial, el aseguramiento de las capacidades de las comunidades, la
prestación de servicios públicos de acuerdo con los estándares nacionales
debe fundarse en el principio de subsidiariedad. La información recabada
permite concluir que, el principio de subsidiariedad es una barrera para la
centralización demasiado profunda del organismo estatal y la separación
del poder.
Palabras clave: subsidiariedad; descentralización política y
administrativa; desconcentración del poder;
autogobierno local; Ucrania.
Introduction
In conditions of the digital transformation, the decentralization in
Ukraine has acquired the new signicance and importance as a process
that leads the country to the principles of interaction between the state and
society, recognized in Europe. The main political and legal aspect of this
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The Subsidiarity Principle and Legal and Economic Aspects of The Decentralization in Ukraine
movement is the interaction of the state with another form of the public
power - local self-government. Although the decentralization covers a
very wide range of public relations with other spheres of society (such as
business, culture, science, education, etc.), but the denition of the activities
coordination principles of two most important power structures is the most
pressing issue of Ukrainian politics and law enforcement. In this regard,
one of the main European principles of the interaction between central and
local government is the principle of subsidiarity.
The necessity for its practical implementation in Ukraine in order to
full the tasks of the European integration has been recognized widely
by experts. However, at the political level, the term “subsidiarity” is
used rarely, as in some cases it is associated with the federalization. The
discrepancy between the objective meaning of the subsidiarity principle
and its subjective perception by political forces requires more detailed
analysis and even its promotion among civil servants and the municipal
community (Kvitka, 2015).
1. Literature review
In recent decades, a lot of researches on political and legal issues of
regional policy and local self-government were conducted. Many reference
books and statistical collections have been published (Decentralization in
Ukraine, 2020). However, a little attention is paid directly to the problem
of applying the subsidiarity principle in the Ukrainian context, especially
in the context of the digitalization. Most of materials are based on the
European experience and were prepared with the support of international
organizations.
First, they explain the importance of the subsidiarity principle, its
role for Ukraine’s European integration. But these publications provide
only general remarks on the specics of its use in Ukraine. As for specic
studies, most of which are conducted on a grant basis, in almost all of them
the decentralization and the subsidiarity are offered as the main recipes
for overcoming the existing socio-economic problems in Ukraine (Hrubas,
2015). By our opinion, during the last years the best research on these issues
have been conducted in the framework of Ukrainian-Canadian projects
(MLED, 2020).
In these researches the question of the existence of restrictions on the
implementation of the subsidiarity have been raised, especially, for local
budgets and local economic development. Despite the rather big amount
of publications, the task of dening the clearer criteria and mechanisms
for implementing the subsidiarity principle in the everyday work of public
administration in Ukraine is still urgent. The biggest problem remains
the ambiguity of national standards of public (administrative, communal,
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etc.) services, which of them should be provided on the territory of the
country. The inuence of digital transformation on the peculiarities of the
subsidiarity principle’s introduction and political and legal aspects of this
process are ignored by scientists (Batanov et al., 2014).
The aim of the study is to determine the political and legal aspects
of the subsidiarity principle’s introduction during the implementation
of the decentralization reform in Ukraine in the context of the digital
transformation.
2. Results
Subsidiarity (from the Latin Subsidiaries - auxiliary) is the organizational
and legal principle, according to which tasks should be solved at the
lowest, smallest or the most remoted from the centre level, at which their
solution is possible and effective. The idea of the subsidiarity is akin to the
decentralization. In the context of decentralization and expansion of the
powers of territorial communities, the development of territories takes
place, including the creation of conditions for attracting investments in
the development of the tourism industry and other spheres of the economy
(Koval et al., 2018; Koval et al., 2019; Popova et al., 2020; Yankovyi et al.,
2020).
This principle has become a part of the European Union law as one of the
main mechanisms to deter the excessive centralization. The very principle
of the subsidiarity goes back to the ideas of Plato and Aristotle, as well as
to the medieval city law. In Catholic social teaching, this concept became
part of the ofcial doctrine after the publication of the encyclical “Rerum
Novarum” (1891) by Pope Leo XIII. The initial purpose of the principle
was to resolve the conict between the individual and society, which would
avoid the extremes of both individualism and collectivism (Noyhauz,
2005). A further contribution to the theory was made by the encyclical
“Quadragesimo Anno” (1931) by Pope Pius XI, where the concept was called
“subsidiarity”. In particular, it says:
The basic principle of social philosophy, established and unchanged, is
that no one should take away from individuals and transfer to the society
the opportunities that they can do by their own initiative and efforts. Hence,
at the same time the transfer of those functions that can be provided and
implemented by the lower and subordinate structures to a larger and more
complex community will be injective, grave sin and will become the violation
of the proper politics. Since any social activity, by its nature, should serve as
a means of helping members of social education, it should never destroy or
absorb them (individuality) (Noyhauz, 2005).
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The Subsidiarity Principle and Legal and Economic Aspects of The Decentralization in Ukraine
According to the principle of the subsidiarity, the government should
be as close as possible to the citizens. The state should take the initiative
only in those issues where the capabilities of independent individuals and
organizations are insufcient. If the task can be solved at the local level as
effectively as at the national level, the preference should be given to the
local level. This principle works not only for governments, but also for all
those in power: parties, corporations, trade unions, leaders of political
movements, large business and banking structures.
The subsidiarity principle is based on the autonomy of the individual
and their self-esteem. All forms of society - from the family to international
bodies - must serve the individual. It is also followed by the fact that the
source of the political power is the people. At the same time, the personalism
states that people by their nature feel the necessity to communicate and want
to be members of the basic units of society, such as the family, the parish,
the neighborhood, the professional community, the volunteer organization.
These cells act as intermediaries between a person and larger structures
and, thus, give them real power. This scheme is reproduced at the level of
medium and large public structures. This leads to the conclusion that the
delegation of power to higher levels of government should be carried out
only if it is really needed. In particular, the state can use its power only to
the extent, necessary for the common good.
From an ethical point of view, the subsidiarity obliges the state and
society to create conditions for the full development of the individual,
including the provision of socio-economic human rights and security
(Nazarova et al., 2019). The state is obliged to respect the independence of
individuals and organizations, but, at the same time, it should promote the
establishment of links between them. Even though it has no right to impose
restrictions on the fair demands of individuals, but it must protect some
members of society from the harm, connected with the private interests of
others.
However, the subsidiarity not only recognizes the limitations of the
central government, but also suggests a methodology for determining
the scope of local government powers. In 1985, the European Charter of
Local Self-Government (1985), going from the subsidiarity principle,
assigned local administrations to solve all tasks, except those that they can’t
overcome. Thus, Article 4, paragraphs 3, 4, 5 and 6 of the Charter states:
Public powers are performed mainly by those authorities which are the closest
to the citizens. The transfer of any function of any power body to another authority
should be carried out taking into account the scope and nature of the specic task,
as well as the requirements of the efciency and economy”, “As a rule, powers,
granted to local governments, should be complete and exclusive. They may be
questioned or restricted by any other central or regional authority only within the
limits, established by law”, “When delegating powers to any central or regional
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authority, local governments should have the right to adapt their powers to local
conditions as much as possible”,” It is necessary to consult with local governments
as much as possible in a timely manner, especially in the process of planning and
decision-making that affect them directly.
In 1986, the Common European Act divided the powers on the
environment issues between the EU and its member countries in accordance
with the principle of the subsidiarity. Together with the growth of concerns
about the European centralization, the subsidiarity became increasingly
attractive as a deterrent factor. In 1992, the Maastricht Treaty limited all EU
powers to those areas where action by individual countries was insufcient.
These articles were further developed in the amendments to the Treaty
on the establishment of the EU. According to the current version of this
document, in areas which do not fall within its exclusive competence,
the European Community acts in accordance with the principle of the
subsidiarity only if the objectives of the supposed action can’t be sufciently
achieved by the Member States and therefore, can be achieved more
successfully by the EU.
The subsidiarity in relation to individual states in the world community
and in the EU means that public authority in the world community does
not aim to limit the scope of public authority of the individual political
community (i.e. the state), much less to take its place. On the contrary,
its aim is to create a global system, in which the public authorities of each
political community, its citizens and their associations at different levels
have the opportunity to carry out their tasks, perform their duties and enjoy
their rights on a more sustainable basis. Accordingly, in order to implement
the principle of the subsidiarity in the European legislation, legal acts must
meet two requirements. Firstly, the EU needs a basis for action. Secondly,
the scale of its actions should be proportional to the necessity (Noyhauz,
2005). When substantiating the compliance of the suggested measures
within the subsidiarity principle, several criteria are used:
- Closeness of government to citizens. Political decisions must be
made at a level, which is as close to the population as possible;
- Sufciency. Is it possible for the set goals to be achieved sufciently
at lower levels (including by the citizens themselves);
- Benet. Will solving the problem at a higher level be more efcient or
protable.
The newest stage in the development of the local self-government
in Europe was based on the subsidiarity principle. At the end of the XX
century in most European countries important structural, functional and
organizational reforms of the system of local government were made. These
reforms were aimed at redistributing functional relations between local,
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The Subsidiarity Principle and Legal and Economic Aspects of The Decentralization in Ukraine
regional and central governments. They were carried out simultaneously
with structural reforms and are linked closely to such concepts as
“centralization”, “decentralization” and “deconcentration”.
Their result was the expansion of the competence of regional and local
authorities, i.e. the decentralization of management, which means the
transfer of certain powers by the central government to local governments
(transfer of decision-making rights to bodies that are not hierarchically
subordinated to central authorities and are often elected by the interested
citizens).
The decentralization may be accompanied by the deconcentration
– the transfer of power from the central level ofcials to the local level
ofcials, appointed by the central government (organizational technique,
which lies in the transfer of important decision-making rights to central
government ofcials, appointed at various administrative districts or public
services). There are vertical and horizontal deconcentration. Within the
vertical deconcentration, all powers to represent the interests of the central
government at the local level are transferred to one governmental ofcial
(prefect, commissioner, etc.), and horizontal deconcentration involves the
division of responsibilities between several centers of government at the
local level on a sectoral basis.
At the same time, it should be kept in mind that the democracy of the
political system as a whole is not always directly linked to the level of the
decentralization and deconcentration. In democracies, the necessity to
decentralize the power may exist not because of democratic principles, some
of which are better provided centrally, but because of administrative factors.
And in countries where there are no established democratic traditions and
the formally existing system of local government does not correspond
to the real mechanism of the local government, the decentralization can
even reduce the level of democracy in local governments. As the powers,
delegated by the central government, are usually aimed at satisfying
corporate interests of local elites (Assembly of European Regions, 2015).
Therefore, the excessive decentralization and autonomy of local
authorities can’t be understood as an absolute benet from the point of
view of democracy. The centralization of power also has a certain positive
signicance, it provides the benets of a one government, free from local
political disputes and prevents, as noted “an abuse of power by rural
tyrants” (Brown et al., 1998). In some cases, the centralization means
better coordination of local services and lower costs of services provided
by local authorities. Thus, in carrying out reforms in European countries,
decentralization and centralization are not seen as diametrically opposed
concepts of the local government. The main problem in carrying out reforms
is not to choose between decentralization and centralization, but to establish
the necessary and appropriate balance between them. This balance should
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correspond adequately to the real socio-economic and political conditions
of a particular country.
Foreign experience of the local self-government allows us to identify the
following trends in its development:
- While maintaining the leading role of the representative bodies of
the local self-government (councils) in resolving local affairs, the
importance of the executive apparatus is increasing gradually and
the inuence of municipal ofcials is growing. This indicates the
strengthening of professionalism of the municipal administration.
Strengthening of executive bodies can take various forms. In
particular, in determining the structure and status of local self-
government bodies, an increasing amount of authority’s rights is
assigned to executive bodies by the law. The representative bodies
transfer part of their functions to executive bodies voluntarily
(temporarily or on a permanent basis).
- The material and nancial foundations of the local self-government
are being strengthened. Each community has its own municipal
(communal) property, which is necessary for the functioning of
vital communal services. Municipalities use economic management
methods widely - local taxes, licensing, signing contracts for
performance of the municipal functions with private rms, etc.
- All this contributes to increasing the revenue part of local budgets,
the development of the municipal economy and the stimulation of
the entrepreneurial activity (Bantash et al., 2020). At the same time,
in many countries (especially in the “post-Soviet” ones) the problem
of forming a sufcient nancial basis for the local self-government
remains acute.
- The functions of local self-government bodies are changing
signicantly. This happens due to the following factors: rst, there
come new functions, the implementation of which was not necessary
at the local level before (for example, the environmental ones) and
which are now delegated to local governments by the state; secondly,
some of the functions that were previously traditionally performed
by local governments are transferred to private companies or public
associations, bodies of self-organization of the population (for
example, cleaning and recycling); third, the role of local governments
in addressing social issues is declining.
Urbanization processes and demographic changes help, on the one
hand, to reduce the number of rural settlements and to increase the number
of urban ones, and, on the other, to deep an urban crisis (the growth of the
suburbs leads to the movement of industry and social services from the city
center to the periphery and, as a result, the mass relocation of the “middle
class” to the suburbs).
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Urbanization gives rise to various agglomerations (metropolitan areas),
which are a unity of the city itself, its suburbs and the surrounding small
towns and villages, which are economically interconnected. There are
many different, independent municipal management systems within these
agglomerations, and the lack of coordinating bodies makes it difcult to
follow a coherent policy within the agglomeration.
The absence of an approach to the agglomeration as a single whole
causes the phenomena of territorial mismatch of resources, needs and free
consumption. The rst phenomenon is connected with the fact that local
governments of those communities that are within the agglomeration try to
provide the widest possible range of services, which leads to the irrational
use of resources (the cost of services increases with the reduction of the
number of residents, whom they are provided to).
The phenomenon of free consumption is that certain services are used
by those for whom they are not directly targeted to and who do not pay
for them. In particular, the inhabitants of suburbs (which are independent
municipalities) use some services that the city provides to its residents.
Many municipal services (environmental protection, re and police
services, etc.) cannot be located within a separate agglomeration
municipality, it is difcult to quantify and squeeze them into appropriate
territorial boundaries in order to exclude outsiders living in other municipal
agglomerations from the users of these services.
A steady trend in the development of the local self-government in Europe
is the consolidation of administrative-territorial units, the reduction of
the number of local authorities, the creation of various regional forms of
government. These processes are aimed at forming a sufcient territorial,
demographic, material and nancial base for the maintenance of modern
utilities and other municipal services.
For example, in Italy, according to the Law on the Organization of Local
Autonomies, new communes can be created with the presence of at least
10,000 inhabitants, and provinces with 200,000 inhabitants. Signicant
nancial incentives are provided for the unication and subsequent merger
of communes with a population of less than 5,000 inhabitants or their
accession to larger communes. Radical measures, aimed at the reduction of
the number of communes, were used once in Sweden, Belgium, Denmark,
Germany and other European countries. For example, in Sweden the
number of communes was reduced from 848 to 288, in Belgium – from
2359 to 589.
At the same time, the number of grassroots self-governing units
(communes) in some European countries still remains to be quite big: in
France – 36,757; Germany – 8,500; Italy – 8,090; Spain – 8,056; Greece –
5,750 (OECD, 2020).
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In some European countries (post-Yugoslav states) reverse processes
take place, there communes are divided. This happens as the existing
communes are too big. For example, in Slovenia, the average commune
has an area of 321 square kms and a population of about 31 thousand
inhabitants, in Macedonia the average size of the municipality is 850 square
kms and the population exceeds 60 thousand people.
In many countries, the solution to the problem of forming a proper
material basis for the local self-government is seen not in the consolidation
of communes, but in the development of cooperation between individual
communes (cooperative approach). Such cooperation is carried out through
the signing the contractual agreements on the provision of services and
fullling joint activities in certain areas by different bodies and levels of the
local government (Regional Policy of the European Union, 2018).
Municipalities may enter the contractual relationships with other
municipalities or regional authorities in different spheres, such as
construction, re safety, civil defense, health care, disaster management,
and so on. There is a practice of creating a confederation of cities, which
perform those functions that are beyond the power of the territorial
communities of individual cities (Kvitka et al., 2020).
Conclusion
The legal principle of the subsidiarity is one of the most important
principles of power institutions’ organization. This principle is connected
directly to the local self-government. The basic idea of this principle is that
the central and regional authorities should interfere in activities of local
self-government bodies only to some extent when the territorial community
cannot meet its diverse needs by itself.
According to this principle, the distribution of powers between the bodies
of different territorial levels should be carried out in such a way that, on the
one hand, to be as close as possible to the citizen in the decision-making
process, on the other hand, this level should have organizational, material
and nancial resources to provide the necessary volume and quality of
social services, which are supplied to the population in accordance with
national standards
The implementation of this principle includes two important aspects.
On the one hand, the subsidiarity presupposes that a higher territorial
authority can interfere the activity of a lower-level government only to
such extent where the latter one demonstrated its weakness. That is, the
subsidiarity in this sense is based on the principle of non-interference
of state power or local government of a higher territorial level in solving
issues of the local importance. On the other hand, the subsidiarity implies
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The Subsidiarity Principle and Legal and Economic Aspects of The Decentralization in Ukraine
explicitly that higher-level authorities not only have the right, but they
must interfere in the sphere of lower-level authorities’ power. At the same
time, this intervention does not mean substitution, but a certain type of
assistance that encourages and empowers the grassroots.
Thus, in accordance with the subsidiarity principle, the transfer of
powers from lower-level authorities to higher-level authorities is permitted
only to the extent that those powers themselves can be better fullled
at higher levels. At the same time, the idea that these powers should be
performed at a level, which is as close to the citizen as possible, remains
unchanged.
Based on the analysis of the relevant articles of the European Charter of
Local Self-Government, the principle of the subsidiarity can be studied in
its legal and political meanings.
Thus, the legal signicance of the subsidiarity characterizes this principle
as a certain formula for the division of powers in legislative acts, according
to which the lowest level of government receives such powers that the
subsequent territorial level of government can’t perform more effectively.
This division of powers allows, on the one hand, bringing the decision-
making process as close as possible to the citizen, on the other - this level
must have the appropriate resources. At the same time, the priority of the
grassroots level in the distribution of powers should prevent any attempts
of territorial organization of power to centralize the power in the system.
The political signicance of the subsidiarity principle lies in the fact that
it is a kind of tool that should ensure the performance of powers as close
as possible to the citizen. These powers are revoked from the state and are
transferred only to those authorities that work under the control of elected
representatives. Thus, the subsidiarity principle becomes a barrier to the
excessive centralization of power by the state body and to the separation of
power from the people.
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Esta revista fue editada en formato digital y publicada
en enero de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 68
