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«EUI Working Papers RSCAS 2012/23 ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Global Governance Programme-18 MULTILEVEL GOVERNANCE OF INTERDEPENDENT ...»

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Some Characteristics of Multilevel European Governance It has been rightly stressed that club goods require clear institutional borders and that states ought to be very careful to manage a multi-level, multi-fora, multi-good world. A multilevel system of governance is always a complex matter, both within states and, even more so, at the transnational level. In Europe, the question ‘who does what’ has been occupying policy-makers for many years.

More than ten years ago, in its 2001 White Paper on Governance, the European Commission made the sobering remark that ‘the way in which the Union currently works does not allow for adequate interaction in a multilevel partnership; a partnership in which national governments involve their regions and cities fully in European policy-making’. (European Commission, 2001, p.12) On the other hand, the Commission ended its White Paper with the strong recommendation that ‘the Union needs clear principles identifying how competence is shared between the Union and its Member States’ and it advocated ‘a Union based on multi-level governance in which each actor contributes in line with his or her capabilities or knowledge to the success of the overall exercise. In a multi-level system the real challenge is establishing clear rules for how competence is shared – not separated; only that nonexclusive vision can secure the best interests of all the Member States and all the Union's citizens.’(European Commission, 2001, pp.34–35) A decade later, in a post-Laeken, post-Convention, post-Constitution and post-Lisbon EU, it is worthwhile to revisit these remarks. We examine first whether the contemporary EU constitutional structure provides for a clear and working allocation of competences on the supranational, national and regional levels. Next, we discuss how successfully the EU has managed to embed the requirement for multi-level partnership at sub-national levels of governance.

The Lisbon Treaty, in force since 1 December 2009, has introduced a ‘competence catalogue’ which indicates which powers lie at the level of the EU and which powers are national, based on the principle of conferral and the recognition – for the first time explicitly enshrined in the Treaties – that competences not conferred upon the Union remain with the Member States (TEU, 2009, Article 5(1)(2) and Article 4(1)). It lies outside the scope of this article to discuss in detail the various categories of competences (exclusive, shared, parallel, supporting and complementary), although revisiting them in Articles 3-6 TFEU would have been in itself very interesting from the viewpoint of the provision of regional and global public goods. Still, some remarks need to be made in this respect.

In the current constitutional set-up, the overwhelming majority of EU competences are shared (e.g.

internal market, social policy, energy, environment, transport) (TFEU, 2009, Article 4) whereas only very few (i.e. customs union, trade, monetary policy, competition policy, conservation of marine biological resources and common commercial policy) are exclusive powers of the EU (TFEU, 2009 Article 3). The number of supporting competences (i.e. protection and improvement of human health, industry, culture, tourism, education, vocational training, youth and sport, civil protection and administrative co-operation) is also limited (TFEU, 2009, Article 6). It should be noted that the list of shared competences provided for in Article 4 TFEU is not exhaustive contrary to the ones of exclusive and supporting competences (TFEU, 2009 Article 4(1) and the opening sentence of Article 4(2); see among others Piris, 2010, pp.76–77; Lenaerts and Nuffel, 2011, pp.124–130).

It follows that the Lisbon Treaty did not establish indisputably ‘clear rules for how competence is shared’ or, in the words of the 2000 Nice Declaration on the Future of the Union, ‘a more precise delimitation of powers between the European Union and the Member States’ (Treaty of Nice Declaration 23, 2001). The fact that the catalogue of competences is not final reflects the reality of the constantly evolving nature of the EU. However, it also makes for great volatility and uncertainty in this field, often impairing the effectiveness of EU policy-making, especially in the realm of external relations. In fact, since Lisbon the daily turf battles in Brussels on the exercise of shared competences The G20 and Global Economic Governance: Lessons from Multilevel European Governance?

and the question what part of a policy field has become a Union competence and what still belongs to the Member States have been occupying EU institutions and Member States internally and externally more than ever before. An enormous rear-guard battle has been taking place, in which a number of Member States actively invoke Protocol No. 25 on the exercise of shared competence,1 and other Treaty machinery, in order to keep as much powers as possible into their own hands. 2 With regard to the negotiation of international agreements (Article 218 TFEU), the Mercury affair epitomized these conflicts. This episode saw severe clashes between the Commission, Council and Member States and gave rise to an embarrassing spill-over into the international arena at the 2010 Stockholm conference of the International Negotiating Committee for the adoption of an International Agreement on mercury (European Council, 2010a; European Commission, 2010; European Council, 2010c, 2010d; The Mercury case is not an isolated incident. Another such example is the ongoing battle on the external representation of the EU by the Union delegation at the UN Borger, 2011; Jan Wouters, Odermatt, et al., 2011). Some of these disputes may eventually be brought before the Court of Justice of the European Union (CJEU), which constitutes an important constitutional safety valve in this respect with a high record of compliance by both institutions and Member States (C-45/07, 2009; C-246/07, 2010; Van Elsuwege, 2011).





Two preliminary findings can be made from the preceding considerations which will prove helpful in the further analysis. First, even in the most advanced transnational systems, multi-level governance structures often oscillate between the international and national level due to the difficulty to overcome the ultimate quest for sovereignty by states. Second, the EU has a unique institutional tool at its disposal to ultimately settle these tensions, if asked, namely the Court of Justice. Such a mechanism is either missing in intergovernmental arrangements or is prone to fail to retain its institutional autonomy and enforce implementation of its rulings.3 On the issue of the ‘multi-level partnership’ involving subnational authorities, to which the Commission referred in its White Paper, the Treaty of Lisbon has not offered definitive solutions either. Rather, it has reconfirmed that the EU should not meddle with structures below the nation-state level of its Member States. Article 4(2) TEU (2009) states explicitly among others that the EU must respect the ‘national identities [of Member States], inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.’ The Lisbon Treaty has brought some changes with regard to possibilities of action of the Committee of the Regions 4 and national parliaments (TEU, 2009, Article 12), 5 but this is all rather marginal in the face of the challenge of a “With reference to Article 2(2) of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.” See also TFEU (2009, Article 2, point 2), which stipulates with regard to shared competences “[t]he Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.” See further (Priollaud and Siritzky, 2008, pp.156–158).

The WTO dispute settlement system constitutes an exception to that since the Panels and Appellate Body Reports are quasi-automatically accepted by the Dispute Settlement Body, acting with ‘inverted consensus’. Still, when it comes to affecting major interests of a bigger member to the WTO, like the EU or the US, unwillingness to implement in a timely manner the outcome of the dispute settlement is observed. Such have been the Hormones case and the US-Foreign Sales Corporations case among others (Jan Wouters and Meester, 2007, pp.226–257).

The Committee of the Regions has now the right to bring actions before the Court of Justice both against legislative acts for the adoption of which the TFEU provides that it be consulted (2009, Article 8, paragraph 2 of 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 - Protocol (No 2) (2010, p.208) and for the purpose of protecting its prerogatives (TFEU, 2009, Article 263, paragraph 3).

The most significant changes introduced by the Lisbon Treaty in this respect have been the right given to national parliaments to receive information directly from EU institutions (Treaty of Lisbon- Protocol (No1), 2010) and the direct role of national parliaments in ensuring compliance with the principle of subsidiarity by EU institutions in the legislative procedure (TEU, 1992, Article 5; Treaty of Lisbon - Protocol (No 2), 2010; see among others Met-Domestici, 2009;

Jan Wouters and Thomas Ramopoulos

real ‘multi-level partnership’. A close examination of the relevant Treaty provisions indicates that their tasks are almost solely limited to advisory ones, as in the case of the Committee of the Regions, or that they have to act on very short notice in order to actually influence the decision-making procedure, as is the case with national parliaments. The envisaged ‘partnership’ has not come about in the light of the constitutional and political constraints which both the EU and subnational authorities face in this respect.

The above analysis illustrates that the EU Treaties do not establish clear institutional borders as a prerequisite for the efficient functioning of ‘multilevel European governance’. Even in the post-Lisbon setting the Treaty provisions fail to establish precisely how competences are to be shared and do not manage to foster a real multi-level partnership. These deficiencies partly explain why in practice modes of multilevel governance in the EU are emerging only gradually in the various policy fields and still face plenty of challenges. A telling example is the euro area sovereign debt crisis which broke out in 2010. The European response to this crisis is discussed in the following section since it further highlights the current role and power balance among EU institutions and Member States. At this point, it may already be observed that the experience of the reactions of the EU to the ongoing crisis reveals that, despite the highly refined constitutional structure of multilevel European governance, the Union continues only to react to – and very rarely foresees – urgent needs and international developments.

EU Institution-Building – the Example of the European Council The uniqueness of the EU as a regional organization lies not only in the transfer of substantial policyand law-making powers to a supranational level but also in its thoroughly institutionalized nature.

Faithful to the ideas of Jean Monnet, 6 Member States have set up, in the course of the last 60 years, institutions in order for them to learn, accumulate knowledge and expertise and respond to new challenges. But one ought to be careful in arguing that the EU institution-building experience can bring lessons to the rest of the world.

First of all, European institution-building has been a process of experimentation rather than design.

A comparison of the institutional set-up of the European Coal and Steel Treaty of 1951 (with a supranational High Authority with far-reaching powers, a Council, a non-directly elected Assembly and a Court of Justice that was mainly an administrative tribunal) with the one laid down sixty years later in the Lisbon Treaty, with not less than 7 EU institutions (TEU, 2009, Article 13(1))7, is illuminating in this regard. It indicates that in the course of six decades the European integration process has been going through many phases of institutional trial-and-error, rebalancing and redesigning, culminating in an extremely refined but also delicate institutional set-up. Such an approach would nevertheless seem at the very least counterproductive on the international level where no political consensus to move forward with deep structures beyond the intergovernmental level can be detected, at least at present and in the foreseeable future.

It is therefore hard to draw generalizing lessons from this very specific process for the provision of global public goods and the organization of fora and bodies at global governance level. Nevertheless, it is submitted that some interesting inferences and useful analogies can be drawn from the particular example of the European Council, which could be of use to the development of the G20.

(Contd.) Kiiver, 2008; Louis, 2008). On the practice of parliamentary scrutiny and pre-Lisbon initiatives, see Jans and Piedrafita (2009).

Inter alia expressed in his famous saying ‘Rien n'est possible sans les hommes, rien n'est durable sans les institutions’, (1976, p.360).

The second paragraph reads: ‘The Union’s institutions shall be: the European Parliament, the European Council, the Council, the European Commission (…), the Court of Justice of the European Union, the European Central Bank, the Court of Auditors.’ The G20 and Global Economic Governance: Lessons from Multilevel European Governance?



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