Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union by the Treaty of Lisbon of 13 December 2007.

In its judgment of 12 November 1996, in Case C-84/94, United Kingdom v Council, in response to an action for the annulment of the directive concerning certain aspects of the organisation of working time, the Court of Justice rejects the United Kingdom's argument of non-compliance with the principle of subsidiarity. That argument claims that the Community legislature has not established that the aims of the directive would be better served at Community level than at national level.

It emerges from the judgment of the Court of Justice, in Case C-233/94, Germany v Parliament and Council, that Parliament and the Council complied with the obligation to give reasons as required under Article 190 of the EC Treaty (now Article 253), since they set out why they considered that their action was in conformity with the principle of subsidiarity by stating that, because of its scale, their action could best be achieved at Community level and could not be adequately achieved by the Member States.

In its judgment of 9 October 2001, in Case C-377/98, Netherlands v Parliament and Council, in response to the application for annulment of the directive on the legal protection of biotechnological inventions, the Court of Justice rejects the second plea (breach of the principle of subsidiarity), since the objective pursued by the directive could not be achieved by action taken by the Member States alone and, given the scale and effects of the proposed action, could be better achieved at Community level.

In its judgment of 12 July 2001, in Case C-189/01, H. Jippes and Others, the Court of Justice emphasises that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question: when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.

It emerges from the judgment of the Court of Justice, of 12 July 2005, in Joined Cases C-154/04 and C-155/04, Alliance for Natural Health and Others, that the relevant provisions of the Directive on the approximation of the laws of the Member States relating to food supplements, which prohibit the marketing in the Community of food supplements containing vitamins and minerals not included on the positive lists, are not invalid by reason of an infringement of the principle of subsidiarity or of the principle of proportionality. The objective pursued by the provisions cannot be satisfactorily achieved by action taken by the Member States alone and requires action to be taken by the Community. What is more, they are measures appropriate for achieving the objective which they pursue and, given the obligation of the Community legislator to ensure a high level of protection of human health, they do not go beyond what is necessary to attain that objective.