Organisational tool, legal concept or democratic principle? The three forms of subsidiarity and their implications for the European Court of Human Rights

One of the most striking developments in the case law of the European Court of Human Rights Court over the past decade is the development a new doctrine of subsidiarity that has been presented as democracy-enhancing. This article explores this turn to subsidiarity in European human rights to assess the extent to which it is positively contributing to democracy. The article does so by first unpacking the notion of subsidiarity, arguing that it is a composite notion that has organisational, legal and democratic elements. Against this background, the article examines the place and space of subsidiarity in the European human rights system, finding that subsidiarity is overwhelmingly concerned with organisational matters. It does speak to democracy but only in a small subset of cases, which typically involve well-functioning democracies. This also means that the new democracy-enhancing doctrine does very little work in the context of democratically backsliding member states.