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José de Areilza [**]
©Copyright: José de Areilza , 1995.
I. European Community Governance
1. Introduction
2. Sovereignty3. Management
4. Combination of the two readings of ECs upranationalism
5. Some conclusions
II. The growth of EC jurisdiction
1. Introduction
2. The expansion of EC jurisdiction: soverei gnty
3. The expansion of EC jurisdiction: management
"What makes mass society so difficult to bear is not the num ber of people involved, or at least not primarily, but the fact that the world has lost its power to gather them together, to relate them and to separate them."
Hannah Arendt, The Human Condition, 1958
The originality of the EC governance is typically summarized with the word supranationalism, a diffused notion which has no significance per se. As it stands today, the EC's most prominent supranational traits are its well-developed legal sphere, its decision-making by majority-voting in the Council, the independent expertise found in many of the EC policy-making processes and institutions and the EC 's virtually unlimited jurisdiction. But from the complex relations between these elements arises no essential meaning for the word supranationalism.
In this article I propose that there are two modes in which integration takes place and that thes e two approaches sustain two different sensibilities, sovereignty and management, that are used to describe and evaluate the EC. This reconsideration of the dual character of the supranationalism tries to contribute to the academic enterprise that goes ba ck to the fifties and has in every decade generated new theoretical insights about the nature of EC governance.
I call the first paradigm outlining the EC's supranationalism "sovereignty". The framework of reference of sovereignty approaches is d rawn from a changing interaction of the EC and its Member States. The tension between the whole and the parts has been balanced differently as integration has proceeded. Still states are unified and purposeful actors outside and inside EC institutions. Th ese sovereign referents, often acting like personified and indivisible entities, underpin the growing independence of the EC legal and institutional expertise, which at the same time increasingly points towards a nation-state form at the European level. Y et it is too early to classify the European Community other than as a sui generis and evolving legal and political phenomenon. Integration has neither left the EC as an international organization nor made it into a unitary state or federation. Th e now classic model of a dual supranationalism, [1] decisional and normative, that relates member states' control over EC decision-making to the development of the EC's quasi-federal legal sphere and jurisdictional growth [2] is in my reading part of the same sovereignty paradigm. In sovereignty, the connections between the evolving legal sphere and the changes in sovereign decision-making are stressed, to try to come up with a pattern of const itutional evolution similar to that of a non-unitary polity, emerging from the interplay of the EC and its member states.
The second paradigm that can be used to understand the EC's supranationalism is what I refer to as "management". The term isb ased on the fact that today a large part of the process of integration is managed by rather autonomous and goal oriented bureaucratic units and social actors, which deal with specific and narrow problems that require solutions at the EC level.
In those situations, the state is not the political reality that ultimately explains and inspires the growth of the EC legal and institutional structures. National realities are pluralistically constituted, domestically as well as for EC purposes. We gain a lot of explanatory power to answer the question what kind of governance the EC is if to the focus on sovereignty questions, supreme courts and national governments we add a more detailed examination of the fragmented EC decision-making process, bringing in the role of bureaucrats, regulatory experts and social actors. The bureaucratization of national life and the blurring of private-public distinctions inside member-states is in a continuum with the EC phenomenon of management. The EC is a prag matic institutional construction of loose boundaries and a diffused political identity, in which different bureaucracies and social agents handle different economic and social problems around the core project of achieving market and economic integration. This resulting perception of EC governance is rather empirical and multidisciplinary, and highlights problems typical of any modern polity of political control and administrative discretion. This management view stresses the technical expertise and social inputs of the EC policy communities. It justifies legislation underlying more the specific merits of substantive solutions than the influence of broad national or Community interests.
My reconsideration of the dual character of supranationalism w ould like to bring together these two different modes in which integration has happened in different historical moments and is currently happening in the development of different areas of EC policy-making. To this date there has not been an explicit ackno wledgement of these two paradigms and a critical examination of how, at a rhetorical and legitimating level, the two visions relate to each other. To a certain extent, each of the two interpretations has eclipsed the more problematic constitutional aspect s raised by the other.
More importantly, I will argue that today in the EC there are not two levels of government --the EC and the member states-- but two styles of decision-making in the same governance. Likewise, I will claim that the management paradigm is more relevant than the sovereignty one to understand the EC of the nineties. The management phenomenon is more developed than its sovereignty side. Contrary to many expectations, the weakening of unified national identities and their sovereig n determination during the integration process has not resulted in a strengthening of a European identity or a more explicit political constitution of the EC governance. [3]
In the first part of this paper I describe some of the basic conceptual premises of the two styles of integration that give this dual character to the EC supranational governance and to the literature studying it. I also examine some of the political and theoretical implications of such duality. In the second part, I try to illustrate the growth of EC jurisdiction in sovereignty and management terms.
The EC supranational phenomenon is to some extent based on the institutional and legal relations between sovereign actors. Each member state keeps a unified representation at the EC level. Nation-states show one political and legal identity, one sovereignty, vis a vis other nation states and are personified by their representatives. But one day the EC could express a state-like sovereignty of its own and the sovereignty paradigm would still hold. National sovereigns are not a limit to integration, since they could be abolished by this ver y same process. They serve as a legal and political referent of the emergent EC polity. The state unit is the fundamental normative in the legal and political process of integration.
National sovereign wills have been at the same time an objective guarantee, the cornerstone of the EC project of integration and an unpredictable and even threatening element. EC law and institutions have developed not only thanks to each member state's capacity to express a sovereign will but also in spi te of it. At present EC law and institutions are highly developed channels not merely to resolve conflicts between member states but also to influence and discipline their sovereign wills.
The initial political development of the EC was best explained as the supranational development and reinterpretation (perhaps more skillful legally than institutionally) of decisions taken by sovereign actors. Because each step of the EC project of integration depended on the previous political con sent of each sovereign, all EC activity could be seen as both part of a greater economic role of each state and a limit to it. Collective action between West Germany, France and other sovereigns, first in selected areas, then in potentially all economic a reas, placed the EC in an instrumental position.
And yet the EC could not be seriously considered another intergovernmental forum, not even in an early sovereignty analysis. The resulting Community policies always have been more than the mere aggr egate of all of member states interests. They have been shaped by an increasingly independent EC institutional and legal expertise. EC politics have gone, both in complexity and scope, well beyond the image of bargains between sovereigns inside an interna tional institutional setting.
But the development of supranational traits is not contradicted by the fact that in the sovereignty paradigm, the analysis of the EC's efficient performance and of its institutional checks and balances has tended to be similar to the evaluation of its responsiveness to constituent units, just like in any non-unitary polity at an embryonic stage. For instance, when the EC institutions could be see n expressing a state-like sovereign aspiration of their own --as it could be argued the European Parliament did in 1984-- the political promise of a more explicit European federation was balanced against the factual representation by national governments of the European peoples inside the same EC.
The concept of delegation has been essential until now for this sovereign reading of the EC's supranationality. To some degree, integration depends on a connection between EC institutions and each of the EC member states as the final source of their authority. This link is either legal, the classic treaty-based delegation of powers or political, the direct control by member states governments of EC institutions, which has been presented legally as stretc hing the notion of delegation to include implicit delegations. Inside the national realms, obedience to EC commands can be interpreted as compliance with the continuous constitutional decision to delegate certain powers to the EC institutions and to the p olitical decision of national governments to legislate directly (exercise sovereignty) at that level. The sovereign understanding of the EC supranationalism has often echoed the classic notion of sovereignty as a political and indivisible national reality behind unified and independent actors. [4]
Today the weight and importance of each of the twelve EC member states in the formulation of the Community interest has diminished considerably. Since 1987 most EC decision s have no longer been passed by unanimous consent, in which each sovereign state clearly shows its acquiescence. Member states retain certain veto powers, outside and inside the EC Council. [5] But the will of each member st ate is only essential to decide in some situations, because of the international law contractualist origin of the EC and the need to reform the constitutionalized Treaties unanimously, because of legally stipulated unanimity requirements in the Council or because of the implicit rule that inside the Council, a single member state can block EC decision-making in the name of a vital national interest. [6] In fact, the indivisibility or residual character of national sovereignt y remains visible today more by the possibility of an exceptional obstruction than by a long-gone everyday control of the day-to-day EC decision-making by individual member states.
Only in this way, individual member states can be said to retain c ontrol over many of the vital decisions taken by the EC. [7] Borrowing a Schmittian realist insight, [8] if each member state can de facto decide on the exceptional situation, it still rules, t hough formally using the EC to do so.
Regardless of the "sufficient nucleus" of legal and constitutional powers of the EC, the specific political criterion that informs EC decision-making in the exceptional situations establishes every one of the twelve member states as a unified and decisive actor. [9] Therefore, sovereignty can be still construed on these occasions as completely reserved by each EC member state. When the EC is exercising power formally in its own n ame, it is acting more or less [10] in the name of each of its member states.
National sovereignty seems indivisible and as if it were personified at the EC level by the member states highest representatives, thanks to their capacity of individually making final decisions in exceptional and concrete situations. A single ruler can re-write the rules of the Treaties in constitutionally defining moments. Only members of national governments and ambassadors that sit in the secret Council and COREPER meetings can recognize, understand and judge the concrete situation and settle the extreme case, for which the EC has no legal competence. [11] Typically, participants in the numerous COREPER and Council sessions develop a certain allegiance to their own group of equals at the EC level. There is an expectation to produce results and to follow certain unwritten club rules, which minimize or diffuse conflict. [12] After the different enlargements of the Community, with much less consensus about the course of integration, one of such rules may be the deference granted to the country who has those months the rotating presidency of the Council. The meeting t wice a year of the prime ministers and heads of states behind close doors in the European Council is also supposed to help determine priorities and negotiate the most difficult current political issues the EC faces.
The periodical domination of th e political arena by an individual sovereign actor contrasts with the well-developed capacity of EC law to remain above sovereign discretion, with its federal-like effectiveness. EC law and politics can be reconciled by saying that the Court has excelled at making the most out of the constituent units desires, as they are formulated and synthesized inside the EC institutional setting. It is possible to identify a judicial strategy for a functional use of member states wills to progressively enhance EC ins titutional and legal autonomy. The coherent and formally autonomous development of the EC legal order is part of an emerging European polity in which unified national realities are the main building blocks. The constitutional structure formed by the Treat ies and the judicial interpretation of them never fully controls the underlying political process of interaction between sovereigns and EC institutions.
Indeed, the political developme nt of EC integration in a sovereignty paradigm can be explained as this unresolved tension: the EC moving from control by each member state toward guidance by the EC's own institutional and legal expertise. Member states have acted cyclically as the EC ru ling units and as the EC constituent units. Today, individual member states are less able to express overriding national interests at the EC level. But the growth of the EC is limited to the member states / EC framework until the substitution of national sovereignty by a state-like European sovereignty is accomplished.
The national governments' day to day or exceptional control over EC decision-making can be seen as an ingenious way to avoid the zero-sum game typical of federative process es, which brings centralization at the expense of the peripheral units' capacity of self-determination. The occasional political centrality of each national representation periodically erases any vertical division of powers in the EC-member states binary relation. Then, politically, the EC and the member states are not exactly two separate levels of government. Yet the day to day legal and institutional distinction between the EC regime and national polities has proved essential, with outstanding results for the national governments and the EC institutions involved in the expansion of the EC supranational phenomenon. EC law and institutions can still be represented as ultimately responsive to the strongest wishes of EC member states, even when they influe nce most national policy choices decisively.
Nevertheless, given the breakdown of the implicit constitutional guarantee of enumerated powers of the EC and the supreme and binding nature of EC law, it is normal to increasingly worry whether member state governments are periodically reconstructed as final decision-makers by the Community apparatus not only inside the EC, but nationally as well. In those cases, governments rule as national sovereigns thanks to the EC level.
The greater influ ence the executives have in domestic politics from the EC level has certain pervasive effects. In some instances, national sovereignty seems as if it has not been lost at all in spite of integration, but it is not clear that inside member states there is no zero-sum situation. The price today is a growing distortion on the national vertical and horizontal mechanisms of division of powers, as well as the weakening of other internal democratic checks and balances.
Some decades ago, from the sovereig nty paradigm, the development of the first EC's supranational aspects could be interpreted as the successful handling by transnational law and institutions of each member-state sovereign irreducibility, while respecting a legitimate representation of each of them inside them. But in the face of the development of EC law and institutions, the persistence of a decisive and unified national representation reminds critics of an outdated form of personal sovereign power, with negative consequences for each nat ional democratic culture.
The sovereignty conceptualization is skewed in a classic state-like direction, from which the EC supranational phenomenon can no longer be fully described and evaluated. A different analytical perspective is needed to see the present reality of the EC and how many of its actors understand the role they play in it. A large part of the EC supranational phenomenon, both when looking at it in historical terms and when examining it by policy-areas, ought to be conceptualized as management [13] rather than sovereignty.
Since the mid-seventies, the politics of integration have been increasingly defined aro und a fragmented set of decision-making processes, managed by rather autonomous groups of EC "policy-makers", a term that includes national officials, the EC's own civil servants and different parts of European society. Today the choice and content of EC actions are defined to a great degree by permanent bureaucratic interaction and lobbying, which focus on very specific problem-solving practices.
De facto, EC policy-makers exercise extensive economic and legal powers. European and national offici als have more than a respectable degree of insulation and autonomy from political oversight and previous planning. The hierarchical constraints over lower level decision-making bureaucratic units both of the Commission and of national governments are loos er than similar controls in other polities. This has to do with the institutional structure of the EC, the number of issues regulated, the speed at which it all happens but mostly with the possibilities for regulatory entrepreneurialism and experimentatio n offered by the core EC project of market integration.
Integration of national markets into an European one is in itself a gradual process. In the EC this task has been undertaken without the leadership of a central authority with direct Eur opean legitimation. True, after the ideological push for deregulation and privatization of the eighties, conditions for intervention or non-intervention in the European economy are more easily established by non-majoritarian institutions (central ban ks, agencies, courts) using technical criteria and economic language, and not just referring openly to political imperatives.
Many authors have explained how traditionally the EC has escaped budgetary constraints and has increased its level of act ivity by resorting to regulatory policy-making. Compared to redistributive programs, the costs of legislating economic regulatory matters is low since most of them are imposed on the agents that have to comply with the new regulations. Winners and losers are harder to spot. [14]
But the extension of regulatory activity at the EC level has not been capitalized in political terms by the Commission. Even during the implementation of the SEA (1987-1992), in the height o f management days, the appointed Commission lacked the appropriate leadership, resources and expertise to develop a monolithic technocratic rationality or economic theory from which to lead in a unified fashion the recent acceleration of the process of in tegration. Commission projects are focused on obtaining substantive results and typically have a limited scope, around which it is easier to build consensus.
The Commission's exclusive right of legislative initiative is more than a formal enableme nt, especially after majority voting has become a widespread practice in the Council. In theory the Commission is more and more in a position to determine the political agenda. But even if its officials have a directive role in all stages of EC policy-mak ing and are individually empowered by post-SEA decision-making rules, they are not subject to a strong and articulated horizontal consultation and policy coordination. EC policy-formulation is rather patchy and fragmented, divided into very specific subje ct matter areas which do not necessarily correspond to each of the twenty three Directorate Generals in which the Commission is organized. A lot of external consultation still takes place before the Commission sends a proposal to the Council. The number o f consultative bodies of the Commission has grown steadily and today there are around 1300. The Commission relies heavily on advice given therein mostly by independent experts, national civil servants and interested social actors, most of whom participate in the actual drafting of legislation. Oftentimes, national civil servants in Council working groups also have a first look at proposals before they are formally tabled.
The Commission as such --the college of appointed Commissioners-- has not de veloped a formal way of setting priorities. This may have to do with the fact that its political legitimacy has not grown with the expansion of its powers. The Presidency of the Commission decides the distribution of portfolios amongst new Commissioners b ut whether or not the President becomes a primus inter pares depends on his personality and maneuvering capacity. Lately, presidencies have tried to rely on the Commission's Secretary General to do some of this coordination and political overseei ng, with only some gains in concentrating authority at the top. Also the high-level weekly meetings of Commissioner's cabinet officials in preparation for Commission meetings are supposed to coordinate and oversee DG's proposals. But they do little more t han defend each Commissioner's turf and lighten the agenda of what is actually discussed (and not just automatically approved) in Commission's meetings.
This political fragmentation and specialization moves Commission officials to increasingly rel y on inputs from concerned social agents, who supply important information and are able to affect policy choices significantly. So far the Commission as such has influenced little the organization of these social interests. There is no general framework f or bargaining, no legal structuring of consultations in a neo-corporatist fashion, with the significant exception of the delegation of important regulatory functions to national and European institutes of technical standardization. [15] Instead of a coherent and hierarchical system of interest intermediation at the EC level, social inputs come to a large extent from direct representation and specialized representation, in a competitive lobbying environment. [16]
Policy-making at the EC level is fragmented not only in the policy formation stages. After initial wide consultations, the Commission formally sends proposals to the Council. Policy negotiation remains an atomized process and becomes even more obscure. Secrecy is imposed once all Commission proposals reach COREPER, a subsidiary body of the Council composed of permanent national representatives.
COREPER hands over the proposals to the over two hundred specialized workin g groups under its supervision. Working groups are formed by national civil servants. Commission officials participate in all of them. Increasingly, COREPER has expected the low-level bargaining in working groups to do most of the negotiation work, reserv ing their time to deal only with litigious cases which raise important political or legal questions. The number of working groups and of meetings of them has grown since the seventies. [17] Some member states (France, Unite d Kingdom) do better planning and coordination of its civil servants than other member states. In any case, national bureaucrats posted or commuting to Brussels have developed more than simple professional expertise in carrying out the tasks assigned to t hem by their national governments. In the process of finding compromises and an overall good technical solutions, national officials also end up making many policy choices.
A lot of EC action is about economic regulatory issues, which require a gr eat deal of technical expertise and deep involvement with the matter regulated, including not just rule-making, but also fact-finding, enforcement and re-negotiation. As in any modern polity the high decision-making levels --European Council, Council andC OREPER-- lack the information, time, technical knowledge or criteria for evaluation of the decisions they formally make. [18] National civil servant attitudes in working groups, according to the amount of experience they ha ve in EC negotiations, usually range from staunch opposition to either indifferent fatalism or enthusiastic salutation of Commission proposals. The same values related to their profession and job satisfaction, often guide specialists that come from differ ent governmental affiliations. Over time, a stronger group ethos than the one found in the higher EC organs of decision-making develops at low levels. The "play by the club rules and achieve results" behavior is reinforced by the fact that voting rules are less important at these lower levels, given the lack of short-term party politics or electoral burdens. Consensus equals full control over the issue and the possibility of not letting diplomats or ministers decide. Among specialized civil serva nts some distrust of COREPER, Council or European Council decisions is natural, in view of the sub-optimal outcomes that in their eyes can provoke so much horse trading and package-deals.
In spite of the continuous expansion of EC action, the scat tered and decentralized management phenomenon has lightened the substantive parts of the agendas of Council and European Council meetings. Their scope of decision over issues of national political consequence has narrowed. Low-level decision making is not necessarily restricted to unimportant, technical or low visibility issues. For instance, the gender discrimination in the workplace directives were never discussed at COREPER. The growing importance of the European Parliament in the EC decision-making pr ocess may or may not change this routine. Already the European Parliament has a structure of permanent committees, specialized by policy areas, that integrates well with the policy segmentation and consequent empowerment of policy networks.
The in teraction between interest groups, national officials and Community civil servants continues after EC policy is formulated. [19] The existence of mutually supportive links between national civil servants and Community offic ials is also based on the fact that national administrations implement EC legislation. Moreover, they firmly control by way of comitology the Council's delegation of powers to the Commission, which allows the Commission to enact secondary legislation exec uting agreed EC policies. Today there are around 250 implementation committees that follow very different procedures according to the subject area regulated. The post-decisional phase, often neglected by studies of integration, can be as important as the initial stages of EC policy making. Implementation is not an automatic process and a lot of the efficiency of EC law depends on the way national administrations deal with it back home or intervene the Commission's own execution.
National and Community officials and certain social actors play a major political role in defining EC policies. There are many incentives for cooperative behavior in these EC policy communities. EC officials need to assure the cooperation of national civil servants, since national administrations are essential for both the coming into being and for the implementation of EC legislation. Over time what Joerges has called copinage technocratique develo ps between Commission officials and national civil servants. [20] This common search for good technical solutions, insulated from domestic demands partially accounts for the fact that countries with low standards in regulat ion frequently accept high EC standards. Some healthy competition in finding good solutions for specific problems at the EC level is compatible, however, with a serious amount of bureaucratic self-empowerment, both of EC and national officials. National c ivil servants accept a great deal of what the Commission proposes because they can launch initiatives from the EC that would be difficult to propose at home. They enlarge their area of influence vis a vis other national administrative units. They benefit from the primacy of their EC measures over any national provision. Their acceptance of the shift of decision making level and cooperative participation in EC decision-making has all of these compensations. The reason why policies with little support at ho me may enjoy big support in Brussels, and vice versa, is to some extent due to the fact that the EC offers national civil servants the possibility of doing things and recreating the administrative complexity on which they survive. There is no zero-sum gam e between national and EC officials. Management explains how, although there has been no significant coherence of policy-making and no visible centralization of authority at the top of the Commission, EC areas of policy making have grown. It also suggests why there have been no big time delays in the EC policy-making cycle, even in moments of no majority voting, in which there was less pressure to agree at the top. [21] Moreover, management processes show that directives ha ve become more precise and detailed because not only Community officials, but also national civil servants want to ensure the effectiveness of the policies they decide.
EC management takes place in a bureaucratic continuum from the EC level to the national level, with an increasing amount of input from organized social actors. Contributions from social actors are very valuable for Commission officials, both for technical assistance reasons and from a political perspective. Social inputs usually co me from the constituencies that can resist more articulately the proposed EC action. Also, by introducing in the picture a set of piecemeal constituencies, political choices are less of a hidden variable.
On the whole in a management paradigm poli cy makers defend their own policy backyard and tend to focus more on specific solutions to substantive issues than on political definitions of national interests or Community interests. Their day to day sense of the realities of integration is ra dically different from that of those who uphold a sovereignty paradigm, regardless of the invokation of member states or EC's identities or their use of sovereignty decision-making channels that they themselves may strategically do at times.
Besid es relying on the legal mandate of the Treaties, day to day EC policy makers perceive their legitimation as coming less from political sanction by the Commission, the Council or the European Parliament of their proposed policies and more from their own sp ecialized expertise backing them. The social inputs they receive during the policy-making process add to this. But policy outcomes are more easily legitimated because of the substantive merits than by the political process which produces them. The continu ous bargaining and reasoning in these policy networks is not particularly transparent. There is no systematic social reality or administrative framework beyond these ad hoc arrangements of loose coalitions of interests and flexible transnational policy communities. [22]
Today it is still rather typical to draw formal distinctions between EC institutions, with its different composition at the top, to describe the changing checks and balances between the Comm unity and the member states or to sketch the contours of a non-unitary polity around the improbable terms of Community or national interests. [23] Community or national jurisdiction. But it is more relevant to realize how t he Commission-COREPER-working groups' reality as a whole is stronger that each separate reality. The Community is run by a myriad of internal social forces. This diffusion of authority is matched by diffusion of responsibility.
To make sense of the management phenomenon, it should be noted that there is no continuous and self-conscious provisional surrender by member states of parts of their sovereignty in the Council bargaining and in the Treaty reforms. Nor has the Commission adopted a strategy to fragment the policy-making process and depoliticize its choices covering them under technical jargon. The sovereign order has been inwardly superseded. The projection of the unified sovereignty of each member state into the EC realm has been largely fragmented. Each member state's sovereignty, both domestically and for EC purposes, is in many occasions divisible.
This divisibility of national sovereignty lies in a social and ec onomic evolution across western Europe, mirrored and reinforced by the complex, extended and piecemeal EC and national bureaucratic processes. [24]. In order to avoid neo-functionalist temptations of finding purposeful inte gration strategies behind any EC development, it helps to remember that sovereignty in Sweden is today no less fragmented than in the EC or its member states.
Of course, each member state is still formally present, with all its symbols and abstrac t sovereign prerogatives. But to a large degree member states' identities have opened up also inside the EC, so that often it is meaningless or too formalistic to identify governments representing them as the main political agents involved in this suprana tional management. [25] Governments are merely focal points in the whole system of governance. In the EC legal and institutional framework today more than sovereign claims or EC's victories over them, one finds a set of int erconnected social and economic problems that call for management by actors operating in different policy-making contexts. Treating sovereigns as unified actors vis a vis the EC or inside its institutions does not reflect the pluralism of modern states no r their way of behaving at the EC level. [26] Member states are better described as pluralistically constituted by different institutions, public and private bureaucracies, associations, regions and not as unified legal and political actors. Contemporary social, economic and bureaucratic realities keep member states' governments from expressing and upholding a unified sovereign will both nationally and at the EC level.
The EC management phenomenon has to be understo od against the historical background of the crisis of the welfare state. The realization in the seventies of the modern state's incapacity to deliver military protection, economic prosperity and other social goods has resulted in a loss of confidence in n ational authorities and a relaxation of national identities. This was well exemplified in the eighties by the phenomenon of regionalization, privatizations, expansion of trade links, business organizations, foreign investment and financial operations acro ss Western Europe, coupled with the globalization of world markets. Even if the same amount of redistribution continues inside most of the EC member states, and there is still the same amount of public intervention in the economy, there is much less guida nce and leadership coming from the state as a unified political subject.
Management shows that the EC cannot be insulated from national political power. But it updates this notion, focusing on current dominant bureaucratic and lobbying processes a nd on the incentives the EC setting offers for the expansion of these realities. In this regard, the EC has gone beyond classic centralization-decentralization federal dilemmas. Indeed, the management interpretation of EC supranationalism breaks away from the binary relation member states / European Community that is at the heart of the sovereign perspective. The phenomenon of management reveals how very often the EC legal and institutional processes are not "above the states". Sovereigns are nei ther playing a never ending zero-sum game, [27] nor engaged in a cozy symbiotic relationship, [28] in which the EC can be strengthened without weakening its member states. Interestingly, them anagement paradigm shows that the weakening of member states as unified and decisive actors has not resulted in a strengthening of the EC political identity.
The EC is not the much-awa ited European Federation. The EC has some of the elements of a sovereign federation, a supreme and directly binding law adjudicated by a fully fledged Constitutional Court, its own professional bureaucracy and its legislative and executive processes. The EC makes law without complete subordination to every one of the EC member states. Over time the EC has acquired many of the powers and rights of a federation and, like most contemporary federal governments, its action is not constitutionally limited by an exhaustive list of powers. In spite of all of this, the EC has no classic sovereign aspiration of its own. The EC is not the central government of a post-industrial democracy. The EC phenomenon of management is too complex and too amorphous to be present ed as emerging from a new abstract constituent power. It is something different.
The development of this second kind of supranationalism at the EC level is truly remarkable. The fact that the EC can be described in management terms, in the same wa y in which we describe any modern governance, is a sign of the depth of integration. A somewhat similar description of this pluralistic phenomenon holds within each member state as well. Many elements of this paradigm are non-EC specific. Different author s have already portrayed and evaluated parts of EC policy-making, especially its regulatory aspects, in the manner that one would do with regards to a polity of the Western world, using a more neo-corporatist or a more neo-liberal model. [29]
Moreover, EC policy makers see their central policy-making position as unique and advantaged. This evokes other modern stories of centralization of authority. Only from the center the externalities of the peripheral units actio ns can be taken into account, arbitrated and dealt with. Just like national law-making and administration, EC policy makers deal directly with certain aspects of society and are not politically subordinated to the unified governmental representation of me mber states, nor tied by explicit legal mandates and procedures.
But what sets the exercise of power from the EC level apart is not its pan-European territorial or social base but its method: different actors, many of them coming from the peripher al units, are empowered by focusing on the perceived necessities that stem from the creation of a common European market place. The progress of integration is then best measured by the growth of the EC policy-makers' capacity to suit the needs of interest ed and resourceful parties and solve substantial problems that arise around the objective of economic integration.
The decay of national welfare politics and the exaltation of civil society and market behavior during the recent history of the EC h ave favored this atomized evolution of the EC supranational phenomenon. The EC does not attempt to act and plan like a state, above society but provides the historically-needed social arrangements to come up with the common rules and practices that enhanc e West European market prosperity.
After the welfare state, no association including the state is decisive and sovereign enough. [30] There is no readily available metaphysical concept to replace the unified nation state as a having the monopoly of collective representation, with the possible exception of the market. The loyalty of individual agents can be said to be distributed between competing public and private associations. The EC is one of these competing asso ciations, that because of its central position enhances competition between different national and regional governments and their regulatory abilities.
The rational planning mentality of the modern nation state is not reproduced at the EC level. T he speed of contemporary social and technological change seems too great to launch a new universalist project from the EC that engineers and distributes indefinite economic progress in response to a collective social demand. There is not a clear idea of d evelopment in European society, which would allow for the administration of a global order.
For instance, the EC spends a great deal of its annual budget in redistributive policies (agriculture, regional policies, structural and cohesion funds). B ut this redistribution happens to moderate the side effects of market integration, has been organized along national lines and is a practice heavily questioned today, given the economic inefficiencies it provokes, in the face of enlargement and in the abs ence of a sufficient consensus about it.
Similarly, building a common market is today clearly a regulatory project [31] and includes many consumer protection, product safety and environment measures. But it is not g eared toward the production of fair economic outcomes from a new governmental structure, that concentrates legal and political power. An ideological reading of the aggregate content of EC policies mostly shows how centrist and pragmatic these outcomes ten d to be. The loose EC's economic rationality does not allow for pure market or overtly interventionist solutions. Extreme or principled positions only have national political meaning. Inside the EC they easily lead to a nominalist discussion. As EC legisl ative and interventionists capacities are developed, there no longer seems to be a dividing line between EC internal market measures and EC social legislation.
The multiple EC legal and institutional processes, which specialize and evolve around t he objective of achieving a common European marketplace, have a changing social basis. It is rather futile to attempt a constitutional justification of the unconnected economic, technocratic and legal understandings from the EC level of some of the intere sts of the one European society. At the EC level there are only fragmented policy-making processes.
Hence, the rather problematic questions about the EC's democratic credentials and its political identity as a unified supranational subjec t are often displaced by pragmatic policy questions. More than by their national allegiance or their independence from national interests, EC policy-makers are scrutinized according to their capacity to deal with different economic and social problems. Po licy-making in the EC is then best justified by the occasional aggregation of the scattered economic and social results of integration. This renders somewhat superfluous the attempts to formally define the horizontal contours between different EC institut ions or the line that separates EC institutions from national ones, or governmental interest from those of social actors. But it leaves unanswered the questions about the remoteness, lack of transparency and bureaucratic empowerment that are specific of E C management.
The terms of the political debate and the scope of political choices inevitably narrow at the EC level. The EC institutional and legal expertise filters any demands from European society. EC management is a decentralized phenomenon, but it is relatively insulated from the unorganized interests of European society. Not only because EC policy-makers have unique data and a unique perspective on specific European-wide policy areas. The EC governmental setting concentrates resources to re gulate markets but neither prioritizes or coordinates their use, nor fosters a coherent experimentalism, taking advantage of this entrepreneurial policy structure. It consequently relies with ease on the largely self-regulatory nature of the Euro pean market and its interdependence with the global marketplace. The EC can treat its selective legal interventions to manage the interdependence of economic and social conditions as a consequence of an inevitable social evolution (becoming a market), and not just as a public objective (building a market). Market building action can be combined with a continuous deferment to self-regulation. This conservative view of interdependence facilitates the fragmentation and specialization of EC action, but render s more difficult the possibilities of justifying it in any a priori or constitutional fashion. To some extent, the EC merely brokers self-advancement. Hence, the emphasis of the management model is not as much on European society as an emerging s ource of EC power versus the permanence of national realities as it is on the uniqueness of the EC evolving policy-making procedures and of its substantive results.
Contrasting with this diffusion of politics, from a legal perspective, the EC mana gement processes are presented as both as fulfilling the Treaties' legal mandate of integration and as limited by a set of legal guarantees that control the social and bureaucratic realities behind the evolution of EC rules and practices. For instance, na tional courts no longer understand themselves as situated at the forefront of the national sovereignty line when they apply EC law. They are protecting specific rights, situations, interests, regardless of national origins.
The more such legal gua rantees rely on general political categories or principles, however, the more they loose their capacity to control the informal and specialized policy bargains. It is not easy to develop well tailored procedural requirements and to equate them to effectiv e constitutional checks, given the diverse and informal nature of the policy-making processes behind the evolution of EC rules and practices.
Today any constitutional analysis of the EC's supranationalism is done against the background of this dual paradigm, typically expressing some sort of preference for either sovereign or management realities. For instance, the success and the formalism of the EC legal order is explained very differently in each of the two paradigms. In the sovereignty vision, it can be argued that EC law tames and functionally does the best it can with national sovereign wills ( i.e. the Court of Justice' s development of a teleological legal thinking to shape an autonomous legal order). In the management vision, EC law is a tool of EC bureaucratic policy-making, and at the same time it offers a neutral and formal guarantee for social actors that deal with the EC, as a compensation for other democratic lacks.
It is important to realize how, at a rhetorical level, questions about the legitimacy of the EC governance are influenced by this dual theoretical and political structure. Normatively speakin g, each of the two visions of the EC's supranationalism is in a dynamic tension with the other. This tension has been such that for many years each of the two resulting conceptualizations of the EC has validated the more problematic aspects of th e other. To some extent, the EC sovereign phenomenon has survived for so many years thanks to the development of EC managerial aspects. But EC management has been able to flourish thanks to the relations between sovereigns and EC institutions surrounding it.
In the management paradigm, the non-majoritarian inputs guiding EC legal and institutional processes are only somewhat legitimated in political terms by the presence of social agents and interests groups a t the EC level. At perhaps too early a stage, the growing EC lobbying phenomenon places the supranational polity in an age of dominant private interests, darwinian survival skills and market-based privileging of the status quo, in which democracy is not p raised as a process of popular participation in decision-making, but substituted by the result of conflict among some organized interest groups. [32]
Therefore, the management descriptions of social pluralism and ad ministrative interaction ultimately depend on stories about unified and purposeful sovereigns, both for abstract legitimacy reasons (the departing point of integration is the existence of European peoples), and for formal intelligibility reasons.
By bringing in images of national or European sovereignty management analysis is tempted to concentrate on discussing the facts and and needs that feed the bureaucratic policy-making chain and situate politics either behind EC decision making, in the national realm, or ahead of EC processes, as a future confirmation of EC doings through appropriate institutional and democratic reform. [33]
Moreover, in the absence of unified sovereignty images, a clear chai n of political action is not discernible behind the piecemeal descriptions of integration, except if using an all-embracing and by no means pluralistic concept of European society.
The image of member states as sovereign units and unified actors w ith equal rights and obligations, crafting an EC nation-state based political identity, can help stabilize the management picture of administrative interaction and social dynamism. The nation-state might be a more or less problematic self-serving agent, b ut it has the advantage that its actions and interests are easier to describe, politicize, speculate about, reprove or ennoble.
The understanding of sovereignty often feels equally inconsequential without the contrast of the management vision. This last model helps make the political evolution of the EC a chronicle of continuous economic and social progress fueled by the interaction of EC institutions and member states. The economicist mentality of management processes helps EC institutions and member states alike avoid accountability problems, since action is legitimated by its results and these results are best interpreted by from the EC. At the same time, EC management realities allow writers to present mem ber states as if they were disciplined by a broader social base of European dimensions that in many cases directly relates to a higher institutional instance, not completely controlled by sovereigns from the outside or from the inside. Management connects the sovereignty reading of supranationalism to the useful images of European economic data, European needs, and European social actors. But it is seldom underlined how the EC processes do not fragment sovereigns much further than national bureaucratic an d social processes do, and cyclically reconstruct national governments as personified and indivisible sovereigns.
In spite of the fact national governments can still perform and justify many of their autonomous assertions of sovereignty thanks toE C legal and institutional expertise, the provisional nature of any academic delimitation between institutional autonomy and member state control sustains the idea of a progressive emergence of the EC as a new and original legal and political paradigm. The transformation of the state by European-wide economic and social realities would lead to the gradual development from European society of a different model of governance, even if this European governance would still be constituted formally by the federal binary EC / Member states. EC constitutional descriptions inherit from the management model an avant-garde look and often situate EC member states closer to the latest world economic and market facts.
The com bination or separation of these two models invites EC constitutional writers to move from a self-regarding legal formalism either to a crude international relations realism or to a perplexed policy-making contextualism.
This dual supranationalism allows a cyclical shift between different constituents and different evaluations of them. Going beyond all liberal schemes for political representation, in the EC it is not clear who the constituent units are, since for integration purposes neither member states nor non-member state actors can be sufficiently pictured as a stable political structure. Every piece of EC legislation or every judicial decision can be described as if still responding to diverse formulations of interests of member states, polic y makers, markets or social actors. But the aggregation of all of these formulations of interests defines no teleology guiding EC integration, since each sovereign or management formulation, when examined closely, can be seen as constituted also by its al ternative. As a result of this political and theoretical duality, EC priorities are typically how to do things, not why. The objectives of integration, an ever closer union, are permanently foreshadowed but rarely discussed. The classic constitut ional affirmation about integration after careful consideration of the overall EC legal and institutional realities, is more or less that it works.
Both readings of supranationalism strive to rationalize both the clear distinction or the total con fusion between ruled and rulers in the EC, i.e. between administrators and social actors, or between the Community and its member states. But hard cases are easily shifted away from any of the two particular models and located in the boundaries between th em.
Indeed, writers can justify the existing EC legal and institutional expertise by deferring the finding of a more legitimate constituent to the paradigm of supranationalism not under examination (European needs and society or democratic nation states) or by announcing the existence of a more dangerous or problematic constituent in such an unexamined realm (irreducible sovereign actors or an uncertain European political identity).
For instance, when EC legal and institutional expertise i s seen as too developed with regard to its member states, European society can be invoked as the more legitimate or more controversial outside constituent and controller.
Similarly, when EC legal and institutional expertise is questioned because o f its supposed disregard for relevant social interests, member states as unified sovereigns are a handy constituency to turn to, with both their more threatening and more comforting aspects as outside constituents and controllers.
Constitutional a ssessments of EC law and institutions can rely on this boundary between international relations and post-industrial democracy to justify everything the EC lacks. On its own, EC management processes contain only a tenuous political promise, given the diffi cult aggregation in simple political terms of the specialized expertise of EC policy-makers. By contrast, any political project behind the EC aspects of sovereignty is very visible, whether it consists of the permanent and highly institutionalized coopera tion between different nation-states or it attempts to reproduce the nation-state form at the European level. At the same time, not achieving any of these cooperative or federative aims related to the nation-state form leads to a more easily identifiable political failure.
Often the EC has been seen as combining a threatening international relations past and the moderate expectations of a future of European-wide market administration. This perspective on EC development has time and again enhanced evaluations of the present-day Community. Thus, the EC has been dominated by a sense of progress in part thanks to the duality of its theoretical and political apparatus. Conventional wisdom today is that the EC should move toward either less control by t he governments of the member states and more autonomous legal and institutional expertise, or toward less autonomous institutional and legal expertise and more social control. Both utopian images remain a project, to be given reality through the EC proces s.
However, given the increasing importance of EC management realities, today it is possible to announce a transformation in the integration process. Integration has reached a moment in which member s tates can no longer be explained as sovereign and purposeful actors in most EC policy areas. The national evolution of collective sovereign identities provides fewer occasions today than before in which national interests are strong and purposeful enough to override EC policy-making. But, contrary to many federal expectations, this weakening of member states has not resulted in a strengthening of the EC constitutional self. Increasingly, EC politics are about the technocratic and scattered handling of sub stantial issues, that cut across disciplinary and national boundaries.
The sovereign paradigm, that focuses on the constitutional structure of the EC, and describes the changing legal and political rules of an evolving non-unitary polity, has lost a lot of its explanatory force. The state is not the dominant actor in the EC nor is the prevailing paradigm for EC action and growth.
Nevertheless, insights about policy-making in contemporary states are very relevant to study the EC. EC policy- making takes place in a continuum with the national phenomena of bureaucratization of the state and relaxation of national identities. Like the EC sovereign phenomenon, EC management processes have a serious impact on national and regional politics. Its d ecentralized shape runs in tandem with its insulation from unorganized social interests.
In the EC's fragmented regulation of the common market certain interests are advanced and others are denied, sometimes simply by limiting linkages between dif ferent areas of policy and by expertly defining the content of such areas with a narrow frame of economic utility. Oftentimes, the EC legal and institutional processes validate in the name of integration whatever relations of power exist, portraying an EC perpetually in the making.
Management realities are moving European and national politics beyond obsolete sovereignty and statist notions. But a large part of management actors rely on a reified notion of the market and of law, as if economic and legal arrangements were not always politically constituted. The premise of a pre-existing market or of a neutral legal mandate of integration allows for a concentration of power and knowledge around the EC processes. Policy negotiations happen within an insulated bureaucracy, that easily supports the collusion of political and business elites, the classic authoritarian partnership.
Today, both the all-encompassing purpose of integration and the instrumental processes that try to make it come abo ut are problematic. The yearning for collective identities of the nineties, periodically expressed in nationalist or ethnic tones, and the opacity of the EC management processes, much condemned after the Maastricht debates, could be read as announcing a s overeign comeback, with member state governments at the EC level gaining final control over more areas of EC policy. Present signs of this dialectic return could be the development in inter-governmental pillars of new areas of EC policy, the growing impor tance of the Secretariat General of the Council and the increasing re-nationalization of the Commission, in which even low level appointments are openly being decided along national lines.
But it is doubtful whether national governments can resist inside or outside the EC the management trend of an ever less frequent reconstruction of them by the EC as personified and indivisible sovereigns. Today, coalitions of member states are frequently needed to veto an issue in the Council. The growth in div ersity and in number of EC member states and policy-areas dilutes the drive of individual sovereigns. And the relevant polity for national governments in search of re-establishing their national and European influence and legitimacy is the EC --as well as for many national administrators and social actors.
The shortcomings of management at a symbolic and democratic level could also invite a future strengthening of the EC political identity instead of an unlikely national sovereigns' come back. Som e symptoms of this would be the further growth of European Parliament powers or a substantial development of the notion of European citizenship. But to this date the EC process has not generated a new political consciousness that would demand and sustain further institutional and democratic transformations.
However, it is true that for the time being, only the combination of these dominant management aspects with sovereign ones, residual or aspirational, national or European, vindicates the EC bur eaucratic pluralism. The tension between expertise and political control typical of all bureaucracies is less visible in the EC because of the never full substitution of an international relations setting by the administration of a post-industrial market democracy. Thanks to this dual process orientation, integration looks as if always about to announce some kind of order emerging from a description of the diffused EC bargaining between utilitarian agents --member states governments, EC institutions, indi vidual policy-makers, market players, social actors.
For many years now in the EC there have been not two levels of policy-making, but two styles of it in the same governance. The combination or separation of the sovereignty or management modes of decision-making and readings of integration has enabled the more sophisticated EC decision makers, regardless of the substance of the issue discussed, to use when it was convenient for their purposes management or sovereignty decision-making channels and invocations.
Often matters that one would have expected to have been discussed at the highest levels of EC institutions and member states have ended up being decided by a set of low-level decisions makers, because either governments, interest gr oups or bureaucratic units have been able to successfully circumscribed the issue to these management channels. Equally, matters that one would have readily classified as management issues have been suddenly in the agenda for actual high-level discussion in the Commission, Council or Coreper II meetings, since they have been wrapped up in a sovereignty mantle by any of these similar interested actors.
The sovereignty and management dual structure of decision-making and theoretical speculation seem s to be an inherent trait of Community governance. An yet today the ethos of integration is better defined by civil servants and interested actors identifying and furthering the specific conditions in which economic freedoms can be advanced and market fai lures be gradually corrected. Management realities are dominant. The EC owes its driving force to a loss of the power of synthesis, if compared with classical political regimes. No utopian vision or collective reverie connects in one political identity al l of the fragmented EC policy-making processes -only the elusive goal of political union at the end of the economic integration rainbow.
The dual character of the EC's supranationalism as revealed by the sovereignty and management paradigms sheds some light onto the classic inquiry of what sort of governance the EC has been and is.
The one supranational trait of the EC's having a virt ually general competence, however, gives an enormous relevance to the other supranational traits that sustain the sovereignty and management paradigms, i.e. majority voting in the Council, a quasi-federal legal sphere and the increasingly independent expe rtise of EC policy-makers.
In the days in which EC administration was limited to a common coal and steel regime, the development of any supranational trait had small repercussions. But throughout the evolution of the EC there has been a great expa nsion of areas in which the EC can legislate and act, to the point where today EC jurisdiction knows few limits. The potential threat of first sovereign and then bureaucratic discretion has become more serious as the EC has acquired the capacity to addres s or affect almost any domestic economic and social issue.
A separate article would be needed to handle the constitutional issue of the growth of EC jurisdiction with adequate depth. In the following pages, I will summarize how the sovereignty and the management phenomena illuminate the EC's progressive achievement of virtually general jurisdiction.
My thesis is that although sovereignty explains how the breakdown of the principle of enumeration of powers in the EC happened without a const itutional crisis, only management can explain how it really occurred. True, the sovereign-led breakdown of constitutional guarantees of limited EC competences allowed the management culture to take over. But the emergence of management explains from then on the further breakdown of enumerated powers. Management is both the cause and the effect of the disappearance of the implicit constitutional guarantee of the EC having limited powers.
The post-war period was a time when national identities were rebuilt. This was done continuing the New Deal and war trend of greater state intervention in the economy. With the rise of national welfare projects the center of gravity of dec ision-making in West European states shifted further from the regions to the center and from national Parliaments to national Executives.
In the sixties and seventies, most of the EC supranational phenomena could easily be explained from a soverei gnty perspective. [34] In its initial years, the small size of the EC complemented to each of its member state's domestic roles as provider of economic prosperity and social services. At the same time, it set some limits an d gave some guidance to national public intervention. Because the EC project was based on the creation of an unprecedented marketplace of European dimensions, the new economic logic at the European level acted as an incipient check on protectionism, that improved each member state's management of the national economy. Each sovereign benefitted from the EC system to foster and deal with economic interdependence in Western Europe. [35]
As in other international organi zations, politically there was no vertical or horizontal separation of powers in the EC. Moreover, with the 1966 crisis provoked by France's refusal to move to decision-making by majority voting and the resulting broad interpretation of the Luxembourg Com promise, each member state government retained de facto final control over all EC actions. Sovereign actors were visibly represented in what became the EC political organ par excellence, the Council. The laying down of constitutional fou ndations by the case law of the European Court of Justice went largely unnoticed by political scientists, though not by national governments. [36]
In any case, in the sixties the Treaty fundamentally asked the membe r states to bring down different interstate barriers to trade. This negative integration was coupled with centralized antitrust monitoring and a common external tariff. Positive integration was limited to the coal and steel and atomic en ergy policies and the setting up of a common policy in the area of agriculture. By the end of the 1960's, still each national government could largely influence the content of all the legislation the EC passed.
The post-war focus on national ident ity as an abstract personification was, however, increasingly felt as formalistic, even primitive. The state acted more and more functionally, as a rather unconnected provider of national security, economic goods and multiple social services. The maximiza tion of national interest was typically expressed as the aggregate satisfaction by the state of numerous diffuse interests.
After 1973, individual West European nation-states were seen as less able to deliver not only peace, but also prosperity an d welfare. Europeans had depended on the US nuclear umbrella for military survival since 1945. But the oil crisis and the U.S. abandonment of the gold standard shook the Keynesian foundations of post-war economic development and public social assistance. National governments were seen as less in control of national destinies as they became more reactive to domestic and international variables. It became harder for governments to rely on a unified sense of identity of their societies or to craft i t. Different attempts at neo-corporatism were made these years, as a way of building new national consensus. [37]
The economic crisis brought with it a certain measure of economic protectionism. But member states go vernments also attempted to resist at the EC level the uncertainties of the new world of floating currencies, adopting the initial steps of a future common monetary policy. This set some limits on the way governments would fight inflation and maintain nat ional competitiveness.
More importantly, during the seventies, the achievement of the common market goal confronted member states with the question of whether to enable EC institutions to harmonize many national laws and administrative measures th at were potential obstacles to the Treaty objective of free circulation of goods, services, labor and capital. The creation of similar economic conditions across the EC to allow the functioning of the common market was a formidable regulatory task, since the modern state intervenes all the time in the economy. Most national policies of economic significance had the potential of distorting trade and could require EC legislative guidance. Any interpretation of a fixed list of EC powers or any attempt to mak e a material determination of its legal scope, in the face of the changing needs of the ambitious project of merging national markets, appeared too restrictive. In that decade, all the EC member states progressively accepted a very open-ended, yet empiric al definition of the EC program of harmonization of national laws and measures. Even if national policies would be overridden by the EC's, the substantive results of a common market would add to national prosperity. The EC project began to visibly shape m ember states' national projects as well as serve them. The first enlargement of the EC (1973) brought in new member states that wanted to get something out of the EC, something, most visibly in the case of the UK, who clearly intended to retain sovereign decision-making power by not remaining outside the EC.
Throughout the quiet years of Eurosclerosis --frequent decisional blockade at high levels-- the EC acquired implicit powers to potentially intervene in almost any area of national pol icy-making, guided by the objective of achieving a leveled European economic playing field and enhancing true economic competitive behavior. The breakdown of EC jurisdictional limits was balanced by the strong political control of the Council over the exe rcise of EC powers. In this period, the EC Council is usually seen as the main political agent responsible for moving the EC beyond a system of legally enumerated powers.
Perhaps this silent extension of EC jurisdiction would have taken place rath er differently if the transfer of new powers to the EC had been based on specific new constitutional delegations of power from each member state. In the EC, the division of powers between the Community and its member states had from the beginning been reg arded as subordinated to reaching the elusive and broad EC objectives. The text of the Treaties had no material lists of EC powers and of member state powers, or of national residual powers. A jurisdictional line was never drawn by the European Court of J ustice at the beginning or in the course of integration.
Consequently, the attribution of new legislative powers to the EC did not require many explicit new Treaty delegations by all its member states. Often, the Council's unanimous decision to ex ercise a power coincided with the attribution of such a power to the EC. All EC measures had to win the unanimous approval of all the governments of the member states represented in the Council. The growth of EC powers was based on the consensus among sov ereigns inside EC institutions to do a broad reading of treaty-based delegations of powers (art. 113, art. 100), find implied delegations in the text of the treaty (e.g. the ERTA case) and construe article 235 as an elastic implied powers clause. This art icle was overused as compared with article 236, that set up a more rigorous and formal procedure for reforming the scope of powers given to the EC by the Treaties.
Until 1987, decision-making in the Council occurred by consensus and hence in theo ry each individual member state was able to both control the jurisdictional expansion of the EC and profit from it. Only with the SEA did the broad reading of EC jurisdiction openly lead to the enactment of an important legislative program of harmonizatio n and to a visible increase of decision-making power of the EC.
But much earlier than that, the growth of EC jurisdiction understood from a sovereignty perspective showed that the EC had gone beyond even an explicit or implicit delegation model: m ember state governments were jointly exercising national sovereignty at the EC level. The question of what powers the EC had or should have was no longer answerable a priori, given the supposed tension between the member states and the EC institutions tha t empirically decided it.
As Weiler suggests, the final control by member states over jurisdictional growth in the EC, diffused the constitutional problem of accepting an ever-expanding EC jurisdiction. [38] Some s ort of unstable equilibrium could be found between the EC legal and political elements that animated the sui generis constitutional development of the EC. It could be said that in the EC system, there was no zero-sum game, since the periphery was strengthened when the center grew in powers.
Individual member state discretion in the Council to expand or limit the scope of EC powers was officially narrowed with the reform of the Treaty of Rome by the Single European Act in 1986 and the chan ge of the Council Rules of Procedure. After the SEA was passed, and with twelve member states in the game (and more heterogeneous than ever before), majority voting became the norm. It was soon apparent that national governments could use the EC less free ly to obtain their individual objectives and that their final political control over the expansion of all EC jurisdiction was gone.
A sovereignty reading of the growth of EC jurisdiction, like the one we have just summarized above, answers the question "how could it happen without a constitutional crisis?". The final control over all EC action by each government at the Council level was enough to prevent such a crisis fro m happening. This political control replaced for a while the implicit constitutional guarantee of the EC Treaties that the Community would have limited powers.
The question "how did this breakdown of a central constitutional guarantee really happe n?" is not answerable only in sovereignty terms, however. The story of the growth of EC jurisdicition is uncomplete without taking into account the development of the EC management phenomenon. The sovereign-led breakdown of the principle of enumerated pow ers allowed management realities to take over. In the seventies, management became the dominant culture. Eversince, management explains the further breakdown of limits to EC jurisdiction and the weakening of the constitutionally protected EC/MS tension. < A HREF="9502ftns.html#f39">[39]
The constitutional ethos of the EC had been firmly established by the Court in the sixties. Had it remained very important in the following decade, the Court would have not allowed the final political control in the Council by governments to become a good enough substitute for the constitutional guarantee of the EC having limited powers. But the Court understood that by backing the Council broad readings of EC jurisdiction it fulfilled its pro-integrationist rol e.
For many years the starting point of any growth of EC jurisdiction was simply subject to the implicit or explicit acquiescence of each member state government in the Council. It is rather significant how the first explicit constitutional expans ions of the EC's limited jurisdiction were defined in broad terms, i.e. environmental policy or monetary union in the seventies. By contrast, in the late eighties, the formal decision to create a separate legal basis often incapacitated the EC from legisl ating in that area and limited the reach of EC action. [40]
During the seventies and the eighties, the EC expanded into new policy areas and doubled the number of its member states. While with more sovereign actors in the game, sovereign aspects were somehow highlighted --decisional stagnation at high levels--, in reality the widening of the EC coincided with a greater development of the less visible managerial phenomenon. A true comitology, largely compose d of national civil servants, was put in place to control the EC institutional work, in policy-formulation, negotiation and implementation stages. However, it also facilitated the expansion of EC jurisdiction.
Within member states, the first signs of the crisis of welfare politics made civil servants feel the need to assert themselves. Public bureaucracies did not stop to spend and grow in size in these years. But national bureaucrats progressively engaged in a different kind of public interventio n. In areas such as consumer protection and environmental policy [41] this intervention was still guided by non cost-benefit political aspirations. But in many others, legislation became more technical and selective, and it was directed to correct market failures.
The development of EC management in the seventies and eighties reflected a domestic loss of national purpose and incapacity to purposefully deliver basic economic and social goods at national levels. [42] The progressive decay of Welfare politics favored the growth of this supranational phenomenon. [43] After the discrediting of the Welfare state there was no readily available metaphysical con cept to replace the unified nation state as a having the monopoly of collective representation, with the possible exception of the market. In the eighties, free-marketeers could uphold not only the notion that the EC was receptive to social demands, but a lso that the whole EC common market apparatus was itself a part of European civil society.
Also in the eighties, the social acceptance of a certain intrinsic expertise of agencies and of the independence of regulators grew. Administrators were any how risk regulators, that for instance would determine the amount of social protection against risks to health. The assessment of costs and benefits became essential for regulatory processes; hence the proximity of regulators to economic and social facts and to the interests of concerned social actors. But instead of classic mechanisms of political accountability, the action of regulators, both at the EC and nationally was mostly tolerated because of the good results they obtained -- often according to th e same experts' interpretation.
The permanent novelty of the Common Market offered national bureaucrats more things to do, plus fewer budgetary constraints and weaker hierarchical controls than back at home. A community of interest were progressiv ely formed between EC and national officials that resulted in the expansion of EC action into existing and novel policy areas.
As the EC grew, its decision-making evolved into a complex, changing and fragmented set of procedures, not that differen t in some aspects from those of policy-making in a modern polity. Its emphasis on the objective of a common market, however, made the management expansion of EC powers happen in a somewhat novel area, as if it did not overlap with existing regulation back home.
For instance, whatever the EC did or did not do could still be considered as part of the progressive fulfillment of Treaty objectives. The lack of an a priori limitation on what the EC could/should do was justified in terms of policy-making flexibility, to respond better to day-to-day needs in the process of building a common market and furthering the goal of economic integration. EC action progressively affected aspects of traditional domestic policy areas more or less remotely associated with the common market project (education, culture, regional development, health, food and development aid, international sanctions, law of contracts). These areas were susceptible to being related to a broad definition of economic integration and were de alt with, at least partially, by the EC.
National officials could agree to Commission proposals based on a similar professional evaluation of the substantive parts of new EC-wide regulations. In addition, they influenced the EC process of policy f ormulation and negotiation and were able to control national implementation of EC decisions, in which participation of the national legislature became redundant.
EC policy-makers were moved by the same incentives that sovereign actors had to expan d EC jurisdiction and action: political discretion, lack of tedious democratic and public accountability, effectiveness. The entrepreneurial EC policy networks benefit from the absence of a normative hierarchy among EC laws, a less strict divisio n of powers and less procedural rigidity than in the national realms. They were able to use the doctrines of supremacy and direct effect of EC law vis a vis national law and the EC implied powers construction to their advantage.
Understandably, re gulatory initiatives typically moved in one direction, from the national level to the EC. Many national bureaucrats did not lose sovereignty with the increase of EC legislative powers. On the contrary, the more legislative power the EC acquired, the more job satisfaction many of these national bureaucrats gained. The pressure to do more, more quickly at the lower levels of EC decision-making grew with the eighties and the growing support of private sector decision-makers of EC-led deregulation an d harmonization.
By the 1980's much of purposeful public intervention in the economy was regarded as an unfruitful excess, lacking an accepted collective meaning. The re-launching of the substantive Common Market objective by the Single European A ct was presented as a bold de-regulatory move against indirect national barriers to trade. It included certain new regulatory activities at the EC level, such as the adoption of minimum standards of health and safety for some products, to avoid fragmentat ion of markets. But harmonization as a result of the Single European Act resulted in a much stronger interventionism than expected. [44]
The insti tutional discretion regarding where and whether to act or not to act, and how to do it, has become part of the functioning of the post-1992 Community, given the prevailing non-imperative and utilitarian logic that guides the radically fragmented integrati on politics. The case by case discussion of jurisdiction is subordinated to the solution of substantial problems, something which has given rise to a lot of flexibility. The focus on the never-ending internal market project still gives the impression that even if all of the EC's and national powers are shared, the EC can keep some of its specialization while permanently extending the scope of its policies.
Today a closed list of EC powers in the face of the changing needs of the broadly defined p roject of merging national markets, sounds either too restrictive or too ambitious. It would in any case be impractical. Most national rules with economic significance may potentially need coordination from the EC or could call for EC harmonization. This cannot be done if EC powers are based on the specific delegation of power and control of its exercise from each member state. But without the final political control of sovereign representatives, the EC institutions teleological and expansive reading of i ts own powers is only sustained by the notion that economic and market integration has its own expert logic that determines when centralization and decentralization in a policy area is needed. Economic and market integration seem to demand this regulatory discretion. Without the EC having the capacity of progressively determining the scope and reach of its own powers, according to its successful management by objectives, there would not be an integration process.In this regard, integration is a dynamic pr ocess and it cannot be said a priori when it will reach its end.
Thus, after the breakdown of limited jurisdiction and of final political control by national sovereigns, the question of what powers the EC has is not in itself the burning problem, except for those engaged in an anachronistic reconstruction of sovereign actors at the EC level or outside it.
With the breakdown of the Council unanimity rule, which has proved to be a weak political guarantee of the EC having limited powers, th e long-gone constitutional guarantee of EC enumerated powers seems more precious and irreplaceable. As the debate about the adjudication of the new principle of subsidiarity shows, it is impossible to resurrect from the Court a strict legal check on the g radual reading of EC jurisdiction by the EC political process.
In fact, a principle of subsidiarity has been introduced in the normative part of the Treaties, evoking the existence of some legal limits to EC action. This principle has not been dev eloped to allow better control by each national government of Council decisions. The final word has been left to the ECJ, and some pressure has been exerted from a national constitutional court to force the ECJ into using subsidiarity to reconstruct legal limits of EC jurisdiction. But it seems unlikely that the European Court at this stage of integration will come up with a creative and acceptable way for all to clearly draw the line over the legal limits of EC powers --in spite of the rhetorical willing ness of the German constitutional court to check if not the scope of the national delegation of powers to the EC.
The Court will probably remain loyal to what now, with the benefit of hindsight, one could call its somewhat irreflexive pro -integrationist past. It will most likely use article 3B to consecrate a non-dogmatic distribution of powers between the EC and the member states. This will preserve the existing versatility that the EC management processes have to determine and negotiate jurisdiction. The Court would be deferring the question of limits to the EC political process, in spite of the questions raised today about the transparency, democracy and remoteness of EC decision-making. Anyhow, the ECJ will be inevitably politicized b y this or any other move concerning article 3B --it is in a situation in which its judicial restraint and deference to the EC political process' readings of EC jurisdiction will be clearly read as activism by some.
In fact, today the real problem underlying the abstract question of what powers the EC has or should have is that EC politics is both a remarkably diffuse and highly technocratic phenomenon. In the now dominant EC management realities, EC policy-makers benefit from the flexibility, the empiricism and the market rationality with which they decide whether or not to act and how to intervene. The question of at what level regulation and how it should take place, however, is more than a task for specialists insulated in non-majoritarian inst itutions, --judges, regulators-- a question of political values.
Broadly speaking, EC policy-making is guided by an empirical market rationality. From a substantive viewpoint, however, this does not equal a clear cut general neo-liberal ideologic al preference. Given the broad scope of harmonization, more attention is paid today to social rights and issues. However, this focus on economic integration creates a higher degree of administrative discretion in all stages of EC policy-making than that o f standard modern polities. Compared with schemes of cooperative federalism, in which control by participation of affected parties and representation of them in policy-making is essential, the EC is a more opaque and remote governance. Basic notions of ac countability are very hard to develop at this higher management level, which forms an inseparable continuum with other lower policy-making bodies.
The move from the EC's commercial dynamism to the more rigid enterprise of building an European publ ic space is not easy. There is a global quality in the fragmented social referent used by EC management that is not found in the social as it is dealt with by more classic builders of an European nation-state or federation. These latter ones either uphold a notion of European society that it is too futuristic and vague or one that is too controversial, with a very uncertain underlying cohesion and consensus. In both cases, they have had to yield to the inadequate representation by national governments of national constituencies and their weak control of the Council.
Behind the sovereignty question of the evasive EC jurisdictional limits is the difficult puzzle of reconstituting the political inside EC management realities. Until EC policy-making p rocesses undergo some fundamental changes, it is possible to suggest that the disintegrative impact of EC action on national and regional politics, identities, and cultures could grow. As we leave behind the days when inside EC institutions mostly soverei gn actors decided, it becomes evident that the management rule by nobody [45] is not necessarily no-rule .