Jean Monnet Center at NYU School of Law

Sovereignty or Management?


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[*] I am grateful to David Kennedy and Joseph Weiler for their many observations and criticisms.

I would also like to acknowledge the comments of Ricardo Alonso, José Beneyto, Carles Boix, Daniela Caruso, Salomé Cisnal, Charlotte Kim, Luis Ortiz, Stavros Papastavrou, Francisco Rubio Llorente and Victor Torre de Silva.

[**] Licenciado en Derecho, Universidad Complutense de Madrid; M.A., The Fletcher School of Law and Diplomacy; LL.M., S.J.D., Harvard Law School.

[1] Although relying on the device of a dual evolution and a dual model somewhat simplifies the complexity of integration and of how we tend to view it, I think discussion around these two poles will prove helpful to understand integration today.

[2] Cfr. J. Weiler, "The Community System: the Dual Character of Supranationality", 1 Yearbook of European Law, 1981, 267-306 and ten years later "The Transformation of Europe", 100 Yale Law Journal, 1991, 2403-2483. Cfr. also K. Lenaerts, "Constitutionalism and the Many Faces of Federalism", 38 The American Journal of Comparative Law, 1990, 205-263.

[3] Cfr. the description by P. Allot of the limits and possibilities of historical speculation about the European Community construct and his critique of certain forms of nostalgia regarding the EC's constitutional development in "The European Community is not the True European Community", 100 Yale Law Journal, 1991, 2485-2500.

[4] To illustrate different conceptualizations and dilemmas associated with the notion of sovereignty, cfr. D. Kennedy's lecture on "The Role of Sovereignty in the New International Order", Canadian Society of International Law, October 17, 1992.

[5] In a Hartian perspective, each of the member states would retain control over the primary rules (rules about rules), which would be enough to imply consent and control over the content of the secondary rules.

[6] The most extreme of all cases would be a member state's unilateral revocation of its EC membership, something that is usually contested on EC legal grounds.

[7] When understanding supranationality as sovereignty, EC writers either typically highlight or deny the importance of the Luxembourg Agreements of 1966 in the constitutional evolution of the EC. This compromise to bring France back was interpreted broadly, to the point that it gave de facto veto rights to all member states in important EC decisions, regardless of the voting procedure mentioned in the Treaty. This universal control of EC decision-making by each member state can be connected although in a non-mechanical cause and effect manner to the progressive expansion of the EC jurisdiction during the seventies and to the quasi-federal nature of EC law according to the Court doctrinal production (cfr.Weiler, "The Transformation of Europe", supra note 3 ).

Perhaps today a more authentic version of the Luxembourg compromise would perhaps be in place, in which vetoes would be less frequent, preceded by a harder and longer bargaining and restricted to Community action that affects vital national interests, a term which would not be too arbitrarily defined by the sovereign actor invoking the compromise.

[8] Cfr. Carl Schmitt, "Political Theology: Four Chapters on the Concept of Sovereignty", translated by George Schwab, The M.I.T. Press, 1988, 5.

[9] Although the EC cannot be classified as an international regime, this model of centralization corrected by some decentralization that the EC would follow is often found in international relations neo-realist writings:

" the level of the states, they need some degree of protection against excesses of interdependence. Interdependence becomes very rapidly unbearable, especially when it is not softened and made more acceptable by steady economic growth, which we have not had for several years, and especially when it is not made more bearable by smooth international steering, which also does not exist at present. States seem to be increasingly unwilling to bear the full costs of interdependence for external as well as for internal reasons. The external reasons are fairly clear: interdependence means the constant manipulation of everybody by everybody, and it is made worse by the unevenness of power. The closer the bonds between states, the more insufferable inequality becomes. Inequality may be tolerable in the abstract, but when interdependence is tight, the weak will be constantly tempted to pull on the bonds in order to improve the deal they get from the strong, and the latter will be constantly challenged or even forced to share their wealth and their status. As for internal reasons, interdependence enhances the role of domestic interests, keen either on protection from abroad or on shifting burdens abroad" (S. Hofmann, Duties Beyond Borders, Syracuse U.P., 1981, 214-15)

[10] Underneath the formal equality as sovereign nations, there is little factual equality between member states as the EC constituent units, something that also happens in any international relations situation in which countries of different size and strength get together

[11] Cfr. Schmitt, supra note 9

[12] It has recently been revealed how even in times of decision-making by unanimity in the Council, COREPER I frequently agreed to solve differences by vote, so it could send the issue to the Council as point A, usually passed without debate, cfr. H. Ettienne, "Pleading Legal Arguments before Coreper and Pleading Political Arguments before the Court", Working Paper, Harvard Law School Seminar on Advanced Issues in the Law and Policy of European Integration, 1994 (forthcoming)

[13] Different aspects of the EC management phenomenon have already been identified and described by F. Snyder, R. Dehousse, Ch. Joerges, G. Majone, N. Mac Cormick, C. Harlow, W. Wessel, G. Peters, A. Sbragia, J. Trachtman and others. In this article, I bring together some of their insights, in order to weave them into a paradigm that goes beyond the classic understanding of sovereignty. For a theoretical and contextual analysis of EC pattern of interests cfr. F. Snyder, New Directions in EC Law, Weidenfeld and Nicolson, London, 1990, 1-60 and "The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques", 56 Modern Law Review, 1993, 19. For a more complete description of administrative interaction in the EC, cfr. Guy Peters, "Bureaucratic Politics and the Institutions of the EC Community in Europolitics", ed. A. Sbragia, Brookings, 1993 and W. Wessels, "Administrative Interaction", The Dynamics of European Integration, ed. William Wallace, RIIA/Pinter, London 1990.

[14] Cfr. G. Majone, Deregulation or Re-regulation? Policymaking in the European Community since the Single Act, EUI Working Paper SPS, No. 93/2, Fiesole/ FI 1993, 24, also, Peters, 77, supra note 14.

[15] Maybe in the near future this corporatist trend could grow in some sectors of ECpolicy, given that the protocol and agreement on Social Policy attached to Treaty on European Union contemplates the recognition of collective agreements at the EC level. The participation of social partners in the formulation of EC labour law can pre-empt Commission proposals and result in obligatory implementation by the member states, cfr. B. Bercusson, "The Dynamic of European Labor Law after Maastricht", 22 Industrial Law Journal, December 1993, 48.

[16] Cfr. P. Schmitter and W. Streeck, From National Corporatism to Transnational Pluralism: Organized Interests in the Single European Market", 19 Politics and Society, 133, 1991

[17] Cfr. W. Wessels, "Administrative Interaction", The Dynamics of European Integration, ed. William Wallace, RIIA/Pinter, London 1990, 238

[18] Cfr. R. Mayntz and F. Scharpf, Policy-Making in the German Federal Republic, 1975, NY, Elsevier, 98-99

[19] Cfr. J. Weiler, "The White Paper and the Application of Community Law", 1992: One European Market ?, eds. Beiber, Dehousse, Pinder, Weiler, EPU, Florence, Nomos, 1988, 339.

[20] Cfr. G. Majone, "Deregulation or Re-regulation? Policymaking in the European Community since the Single Act", EUI Working Paper SPS, No. 93/2, Fiesole/ FI 1993, 26 and also Ch. Joerges, "European Economic Law, the Nation-State and the Maastricht Treaty", The European Union Treaty, ed. R. Dehousse, C.H. Beck, 1993, 29.

[21] Cfr. S. Krislow, C.-D. Elherman, J. Weiler, "The Political Organs and the Decision-Making Process in the United States and in the European Community", Integration Through Law, vol I, book 2, Walter de Gruyter, 1986, 107

[22] G. Majone, supra note 21, 24

[23] Cfr. F. Snyder's analysis of the conception of national interests in "New Directions in EC Law", 57-60, supra note 14

[24] As Shirley Williams has observed, "for European countries, sovereignty is eroded not only by European Community regulations and directives and the judgements of the European Court of Justice, but by the tidal waves of speculative capital beyond any country's powers to contain, by dependence on American military power, and by globalisation of business in an interdependent world" (S. Williams, The Lothian Region and John Napier Memorial Lecture, Edinburgh, November 12, 1993, 6)

[25] Although focusing on the EC sovereignty paradigm, Weiler has echoed the thesis of J. Ostrom Moller about how social evolution in western Europe has fragmented national identities: "on the other hand, strong arguments have been put that the effect of the new 'information society' has been to break down national boundries and diminish the Member State as the principal referrent for political legitimacy. The Community might even be in the peculiar situation where the Member States can no longer fulfil that legitimating funtion but neither can the Community --suggesting an enquiry into other loci such as regions, corporations and the like" (J. Weiler, "Problems of Legitimacy in Post-1992 Europe", 46 Aussenwirtschaft, 1991, 190)

[26] The combined quality of managerial expertise and political discretion found in such processes could be better called ab-nationality rather than supranationality, given that they do not have as a reference the articulate and unified defense of well articulated national demands

The term ab-nationality would stress how many of the EC legal or political interferences with sovereign power, or the national re-assertions of it, are harder to understand as the aggregate of unified national terms. By asking what national sovereignty means in each specific situation inside the broad context of European-wide economic administration and market development, the process of integration goes beyond the past legal sterility and factual arbitrariness of the monolithic projection of national sovereignty in the EC realm

[27] Mac Cormick has explained recently how member states can loose sovereignty without the EC necessarily gaining it, avoiding the classic zero-sum situation of a classic international relations mentality: "there has been a pooling or a fusion within the communitarian normative order of some of the states' powers of legislation, adjudication and implementation of law in relation to a wide but restricted range of subjects. Some matters fall to be handled within one normative system or normative order, while other parts remain rooted or based in other normative systems or normative orders, with arrangements designed (so far, rather successfully) to prevent incompatibility in areas of overlap. We must not envisage sovereignty as the object of some kind of zero sum game, such that the moment X looses it Y necessarily gains it" (Mac Cormick, "Beyond the Sovereign State", 56 The Modern Law Review, 1/1993, 1-18)

[28] Cfr. Allan Millward et al., The European Rescue of the Nation-State, Univ. of California Press, 1992

[29] Cfr. supra note 14

[30] Cfr. for an early depiction of the fragmentation of the political in the modern liberal polity, Schmitt, The Concept of the Political, translated by George Schwab, Rutgers U.P., 1976, 12

[31] Cfr. 1992: One European Market ?, eds. Beiber, Dehousse, Pinder, Weiler, EPU, Florence, Nomos, 1988

[32] Cfr. for a comprehensive analysis of pluralist models and other models of control over bureaucracies, Frug, "The Ideology of American Bureaucracy", 97 Harvard Law Review, 1984, 1276-1388

[33] Cfr. L. Lindberg, writing in 1963: "Our analysis has shown that the decision-making powers given up by the Six are being exercised in a complex and amorphous bureaucratic structrure in which it is extremely difficult to enforce responsibility and accountability. The national parliaments have doubtless been the chief loosers. It is open to question whether countries with strong parliamentary traditions like the U.K. and Denmark will accept this trend to an 'international technocracy'. For this has been the dilemma of Community countries with traditions of Parliamentary rule and they have been living with the idea much longer. To date, however, they have felt that the ultimate goal of a united Europe was a justification for certain sacrifices, and that eventually the European Parliament would take its rightful place as a true Parliament of Europe", The Political Dynamics of European Integration, Stanford U. P., 1963, 295.

[34] Cfr. A. Millward, supra note 29

[35] Cfr. J. Weiler, "Europe after Maastricht: Do the New Clothes have an Emperor?", in Festschrift for Henry Schermers, 1993

[36] Cfr. Weiler, Transformation, supra note 3

[37] Cfr. P. Schmitter and W. Streeck, supra note 17

[38] Cfr. Weiler, Transformation, supra note 3

[39]The post-war diplomatic drive towards intense international economic cooperation imported national technocratic behavior and market management techniques into the international sphere. After the post-war reconstruction of the western European nation-states, the state unit was focused on the pursuit of economic prosperity (i.e. Article 2 of the Treaty of Rome), which entailed management by experts of policy-areas and problems affecting more than one state. Besides the concern for military security, national political debate was oriented towards the enhancement of the economic results of the public intervention in the economy. The management attention on substantial issues over national interests was prefaced by Claude already in the sixties, when he reflected about integration in light of what he described as functionalism, "a horizontal approach, shifting attention away from the vertical divisions of human society which are symbolized by the sovereignty of states, toward the various strata of social need which cut across national dividing lines" Claude, in Stein et al., European Community Law and Institutions in Perspective, Bobs-Merrill, 1976, 23

[40] Compare the launching of EC Environmental Policy in 1972 using the broad clause of article 235 with the restrictive text of articles 128,129, 129 a-d of the Maastricht reforms of the Treaties.

[41] Cfr. Karen Vanderkerchove, "The Polluter Pays Principle in the EC", Yearbook of European Law, 1994 (forthcoming)

[42] As Majone explains, "the limitations of traditional forms of state intervention became increasingly obvious in the post-war period, leading to the belief that the proper role of the state in the economic game is not that of a player, but of the rule setter and umpire. At the same time, the growing interdependence of the world economy was making purely national regulations more or less irrelevant for a large number of policy areas", G. Majone, 14,supra note 15

[43] It is worth noting that the dual evolution of the EC's supranationality has not followed any objective neo-functionalist fate. The growth of the EC has shown that there is no economic and political theory or strategy guiding the integration process, as the one predicted by the sixties neo-functionalist. Neo-functionalists stressed that sectorial economic integration had its inherent dynamics. They underlined that cooperation in one policy area had unintended consequences, that only could be dealt with by extending the realm of cooperation. This ever closer cooperation between sovereign actors would be paralelled by a phenomenon of transnational actors and organized interests at the EC level, which would eventually lead to political unification. EC institutions would then substitute the nation-state as the main political arena.

But the almost mechanical economic and political spill-overs predicted by neo-functionalist prophecies and slogans have proved less inevitable. Political or theoretical anticipation of them has been wholly impossible. Actually, it is hard to tell if the EC's gradual and selective administration of specific economic and social concerns of the nation state is either the cause or the effect of the partial decay of the unified and international projection of each member state's sovereignty.

[44] Cfr. 1992: One European Market ?, eds. Beiber, Dehousse, Pinder, Weiler, EPU, Florence, Nomos, 1988

[45] Cfr. Hanna Arendt, The Human Condition, Chicago U.P., 1958, 41



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