Jean Monnet Center at NYU School of Law


6. Multi-level Europe: Constraining and Enabling

The White Paper seems to imply that multi-level interactions in the European polity are in the nature of zero-sum confrontations in which the Commission must try to maximize its role in legislation and implementation at the expense of the Member States, and where national governments are continually engaged in blocking, reversing and blaming the Commission. There is reason to think that this confrontational view is a legacy of the dominance of "negative integration" in the history of European integration. Once the basic political commitments to market integration had been adopted in the Treaty of Rome and, again, in the Single European Act, it was for the Commission and the Court, acting as the "guardians of the Treaty", to define and implement the common project; and it was plausible for the Commission to see itself as the taskmaster whose job it was to cajole, blackmail or compel recalcitrant or protectionist Member States to accept the concrete implications of what they had already agreed to in the abstract.

The present European agenda, however, is no longer about the further perfection of uniform rules of market integration. It is about coping with the problems and constraints that the integration of European markets has created for the Member States in policy areas which, so far, have not been Europeanised themselves. These problems are manifest in the societies and economies of the Member States, rather than at European level. Nevertheless, since it is contributing so massively to problems at national level, Europe is inescapably confronted with expectations that it should also be part of the solution.

These expectations correspond with the historical experience of federal nation states where the growing integration of national economies was going hand in hand with the adoption of uniform social and environmental regulations, welfare-state policies and taxes at federal level. But such parallels are misleading because, for the reasons discussed above, uniform European rules could not be legitimately imposed on the divergent problems, institutions and policy legacies of the EU Member States. If Europe is nevertheless to be part of the solution, this can only be achieved through an enabling role which must support and strengthen, rather than undermine, the political legitimacy, institutional integrity and problem-solving capacity of its Member States. But what can be done if uniform legislation cannot be the solution? In the present institutional framework of the Union, there are, in fact, two innovative options - "closer co-operation" and "open co-ordination" - which might be useful here and whose potential is hardly explored in the White Paper.

6.1 Closer co-operation

The provisions allowing for closer co-operation among groups of Member States did become a bit more practicable under the Nice Treaty. Further changes will be required, however, before it will be possible for groups of countries facing similar problems, which differ from the problems confronting other Member States, to make use of the instruments of Community legislation. If this were possible, it would, indeed, be conceivable that the Member States trying to cope with the problems of reforming "Bismarckian" pay-as-you-go public pension systems might develop common solutions even if these would not apply to the Member States which, to a large extent, rely on either tax-financed basic pensions, or funded public or private pensions. Similarly, the Member States with national health systems might benefit from common solutions that would not apply in countries relying on compulsory insurance for the financing of privately provided health care, and vice versa. Moreover, if it were found to be necessary to relax the rigidities of the acquis for new accession states after Eastern enlargement, "closer co-operation" could provide common solutions that would not open the flood gates of ad hoc discretion. It seems puzzling that the Commission is not actively promoting closer co-operation as an instrument that would accommodate a moderate degree of diversity without relaxing the controls of the "Community method".

6.2 Open co-ordination

The "open method of co-ordination" goes much further in accommodating diversity. As introduced in the Employment Title of the Amsterdam Treaty (and extended to certain social-policy areas by the Lisbon Summit), the method presupposes that the Member States should define certain policy targets as a "common concern", although the actual choice of policies remains a national responsibility. What matters is that the policies responding to jointly defined targets are presented in annual "national action plans", that outcomes are evaluated in a permanent committee of senior civil servants, and that, on the basis of these evaluations, the Council may address specific recommendations to individual Member States. In this, the role of the Commission is important in providing benchmarking information and comparative analyses which identify the relative performance and the specific problems of individual countries as well as national solutions that seem to be particularly successful.

It is, of course, too early to evaluate the effectiveness of the open method of co-ordination, but it is clear that it is viewed with a jaundiced eye by the authors of the White Paper. While its usefulness for "allowing Member States to compare their efforts and learn from the experience of others" is acknowledged, the emphasis is clearly on containment: "The open method of co-ordination must not dilute the achievement of common objectives in the Treaty or the political responsibility of the Institutions. It should not be used when legislative action under the Community method is possible" (but why not?) and "the Commission should be closely involved and play a co-ordinating role" (p. 22). Quite obviously, the authors fear that the Commission could lose ground in its turf battle against national governments.

When viewed from a less self-centred perspective, however, the open method of co-ordination could hold considerable promise. By requiring national governments to focus on a common problem, and to consider their own policy choices in relation to this problem and in a comparative perspective and, even more important, by exposing their performance to peer review and public scrutiny, open co-ordination should not only provide favourable conditions for "learning through monitoring" (Charles Sabel), but it may even provide opportunities for shaming governments out of "beggar-my-neighbour" strategies that would be self-defeating if everybody adopted them. Contrary to the assumptions of the White Paper, however, the full potential of open co-ordination may be realized precisely in policy areas where "legislative action under the Community method is possible". I will mention only two plausible applications that come to mind:

First, assume that the Council and the Parliament heeded the White Paper's injunction to reduce legislation to "essential elements", but that - instead of leaving the formulation of more specific regulations to the Commission and Comitology processes - the implementation was delegated to the Member States. Without more ado, this would correspond to the model of "framework directives" which the White Paper suggests should be used more often (p. 20). If they are not often used in present practice, the reason may be either the distrust of the protectionist or beggar-my-neighbour practices of Member States, or simply a lack of mutual understanding of the operation of institutionally differing national political and administrative systems. But what if national implementation were coupled with a process of open co-ordination in which the Member States would have to announce what they intended to do, in which their performance would be monitored by the Commission and evaluated by peer review, and in which more precise Council legislation or decisions in response to manifest problems of deficient implementation would remain a realistic prospect? Under these conditions, the diversity of implementing regulations could increase, rather than undermine, the effectiveness of European legislation.

Or take as a second possibility the implementation of structural funds where the Commission is deeply involved in the processes of defining, selecting and managing programmes at regional and local level - which makes for extremely cumbersome bureaucratic procedures and often wreaks havoc with the integrity of administrative institutions and practices at national and subnational levels. But what if the Union were merely to allocate lump-sum grants to economically disadvantaged Member States while defining broad purposes for which regional subsidies (regardless of their source) should be used? In this case, the effectiveness of national solutions could be monitored through processes of open co-ordination in which national (or subnational) action plans, benchmarking, peer review and potential Council decisions would take the place of both the present involvement of the Commission in attempts at co-administration and the exceedingly restrictive prosecution of state aid under the rules of European competition law.

If employed "in the shadow of legislation", open co-ordination could, indeed, help to resolve some of the most serious problems addressed in the White Paper. It would allow European legislation to avoid the excessive detail which, even though it is a product of their own demands, vexes the Member State parliaments and administrations even more than it seems to irritate the Commission - and it would do so without requiring the wholesale delegation of legislative competencies to an "executive" (the Commission) which cannot be held politically accountable for its policy choices. Instead, responsibility for these policy choices that cannot, or should not, be made directly by the "political" institutions of the Union (Council and Parliament) would be left to the Member States, where they would become the responsibility of politically accountable national and subnational governments. These policy choices, however, would not be those of sovereign, "Westphalian", nation states. They would be taken in an institutional setting in which "common concerns" are integrated into the preference function of national and subnational actors, and in which the effectiveness of nationally divergent solutions needs to be demonstrated in comparative analyses under conditions of peer review. The Council, moreover, would remain as a "fleet in being" that could intervene, by decisions taken by qualified-majority, against specific deficiencies and the "beggar-my-neighbour" practices of individual Member States.

If these conditions were met, the Europe-wide uniformity of rules and practices would cease to be the litmus test of successful integration, and the Member States would not need to march in step to the bark of the Commission's drill sergeant to demonstrate that they are good Europeans. Instead, they could respond to the specific problems that they are facing with solutions which are compatible with their specific policy legacies and which can be implemented within their existing institutional framework. At the same time, however, national policy choices would be disciplined by the challenge to achieve jointly-defined targets and by the institutionalised need to consider their impact on other Member States. In short, in developing the open method of co-ordination, the Union may have discovered a constructive approach to deal with the growing pressure for European solutions under conditions of politically salient diversity.

There is, of course, no reason to consider these methods a panacea. There is still a need for uniform standards which ensure the access of traded goods and services to the markets of all the Member States, and there must also be a place for the centralized enforcement of rules against protectionist practices that distort economic competition among the Member States. At the same time, there is a growing need for the Union to speak and act in a unified and effective way towards the rest of the world, in trade negotiations and development policy as well as in the policy areas included in the Second and Third Pillars of the EU Treaty. But centralisation and uniformity are not values in themselves, and the European Union will not be able to cope with both its present problems and the difficulties of Eastern enlargement unless it finds ways to realise common concerns while accommodating diversity and respecting the institutional integrity and political autonomy of its Member States in all matters where uniformity and centralisation are not necessary or not possible, and which still cannot be left to the unfettered discretion of nationally myopic Member States. It is unfortunate that the White Paper has chosen to ignore these challenges.




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