Jean Monnet Center at NYU School of Law

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I. Introduction

Setting the context

Over the past decades, two separate and apparently opposite trends in government and governance have been the subject of considerable analysis. The first reflects the internationalisation or globalisation of government in certain spheres, with an increasing number of issues being allocated to or addressed by international and supranational levels of authority. This pattern has generally been explained on the basis that the capacity of individual nation states to address the issues in question is no longer adequate or accepted, (in economic language, for example, that there are negative externalities which cannot satisfactorily be internalised within the nation state) or because there are perceived to be advantages of scale, influence and increased effectiveness in action beyond the level of the state. A second trend at least within western political systems is that of localisation, in the sense of the emergence of stronger local and regional politics, with a renewed interest in more direct democratic participation under the influence of republican and communitarian political theories.

One of the factors which these two apparently divergent developments have in common is that they illustrate the erosion of the assumption that the nation state is the primary and most appropriate locus of authority for political decision-making. The increasing interdependence and interconnectedness of nations, both as a result of voluntarily undertaken international obligations and the establishment of international institutions of varying degrees of power on the one hand, and as a result of the transnational activities of economic actors and the unplanned transboundary effects of many social, political and market activities on the other, pose a powerful challenge to the claim that national governments are best placed to decide upon and to regulate most matters of political importance. [1] Secondly, factors such as a growing popular alienation from and disenchantment with traditional national democratic processes in the west, and a degree of fragmentation of political authority within nation states, seem linked to an increasing demand for more participatory political systems and in particular a more active role for local and regional levels of government. This decreasing centrality of the nation-state level of government must also be considered in the light of a third emergent trend which involves a more general fragmentation of political power, and the dissolution of boundaries between private and public spheres of regulation and control. It concerns the evolution, in other words, of a concept of governance which transcends the more traditionally conceived private/public divide and which challenges previous (even if misplaced) assumptions about the locus of political and economic authority.

It is within the broader context of these developments that the debate on subsidiarity within the European Union should be situated, although that debate is sometimes conducted as though its political origins, significance and impact were confined within the geographical boundaries of the fifteen Member States, and within the textual boundaries established by various EC and EU Treaty provisions. The notion of subsidiarity is clearly a political and legal principle which was adopted and developed within the EU to address issues of competence and the exercise of power as between the Member States and the European institutions. But it can also be more broadly understood as part of a language which attempts to articulate and to mediate, albeit within this particular geographical and political context, some of the fundamental questions of political authority, government and governance which arise in an increasingly interlocking and interdependent world. As Held has aptly commented, "the very process of governance seems to be 'escaping the categories' of the nation state". [2]

'Appropriate' levels of decision-making

Rather than pointing to extreme conclusions such as that the nation state is being rendered redundant as a centre of government, however, [3] the varying patterns and trends in economic and political activity and organisation in recent decades may instead be seen to pose challenging questions about what the "appropriate" level of decision-making for any given type of policy may be, and how this notion of appropriateness should be conceived. It is evident that there are different, although not necessarily mutually exclusive, ways of approaching the question. One would be to focus on issues of process, in other words to examine the type of decision-making procedure which is likely to take place at a particular level or within a particular forum, and at who the parties involved in such decision-making are likely to be. Democratic concerns such as the desire to ensure adequate participation by, or representation of, those who are affected by the decisions in question are central to this approach, and the notion of appropriateness is considered by reference to these. [4] A second perspective would focus not on method or process, but primarily on outcome, by asking whether a decision taken or a policy formulated at a given level is likely to be effective in dealing with the issue it was designed to address. This approach concerns the capacity of particular levels of government or political organisation to address certain types of issue. [5] The notion of effectiveness itself suggests various other criteria, such as whether a given level of government is in the best position, geographically, or in terms of access to information or otherwise, to assess, to understand and to act on the matter in question. A further and somewhat more contingent aspect of the question of appropriateness relates to the willingness of particular political fora to take action in certain matters.

Any analysis of the question of appropriateness, however, will be dependent on how a given issue or policy is specified. The more broadly and generally a particular policy area is defined, the more difficult it is to say, whether by reference to process, outcome, or willingness to act, which level of government would be the most suitable, or whether the matter would best be regulated "privately". Further, the discussion so far seems to presuppose that it may be possible to point to one particular level of government, be it local, regional, national, transnational, international or supranational, which is best placed to decide on a particular matter. Yet one of the features of today's complex international political and economic environment, and more particularly a feature of the multiple-level and multiple-layered polity which the European Union has become, is that it is increasingly difficult to specify any one level of authority which should be exclusively or solely empowered to decide on a given matter. The phenomenon of competence and power being spread across a number of different levels of government, and shared between a number of different actors, within the same general policy area or even in the context of a specifically defined policy issue, is increasingly evident.

Exclusive compartments or overlapping spheres?

It might be asserted, for instance, that matters concerning what we conceive of as human rights are best debated and resolved at the level of the nation state, which has the information, the capacity and the political legitimacy to intervene. Yet it can equally well be argued that given the political pressures and tensions which frequently arise within a given nation state, an international institution which is less mired in the immediacy of a local political situation is the more appropriate actor in certain human rights matters, since it is more likely to have the will, the independence, the wider experience and the normative authority to act. Ultimately, the conclusion may be that the nation state is the appropriate locus of authority for addressing certain human rights questions - e.g. for articulating and defining the constitutional values and institutions for protection within that particular political and geographic community, and that an international institution may be the appropriate level for acting in other matters, such as in monitoring the way the nation state purports to give protection to certain minimum-level rights, or by censuring certain types of action in that field. Or the conclusion may be that while an international level of authority is best placed to evolve and articulate shared international values and standards of protection for human rights more broadly conceived, it is for the nation state, or even for more regional or local political actors to determine how those standards will be observed and implemented in concrete situations. Thus the authority may be spread across different levels of government, with an inevitable interaction between those different levels and actors in adopting and carrying through a particular policy in a given sphere. Another example could be taken from the field of environmental policy, where the development of policies to combat global warming might be best undertaken at the international or supranational level, whereas planning decisions as to the preservation of "greenbelt" areas or on the zoning of land are more appropriately adopted at national or local levels. Further, there will be single issues which ought to be decided co-operatively between different levels of government, the central or international level setting out general standards to be attained at national and local level, and those "lower" levels of government then deciding on how to implement the general objectives in the particular context.

One of the puzzling and frustrating features of the subsidiarity debate however, in particular in the European Community context, is that it has largely been conducted in terms of identifying spheres of "exclusive" competence on the one hand - those which are said to be exclusive either to the Community or to the Member State - and on the other hand identifying spheres of shared or concurrent competence. The identification of these different spheres or categories is supposed to resolve many of the questions concerning the appropriate level of government for the various policy fields mentioned. However, as can be seen both from examining some of the strongly opposing views and the confusion within the debate about spheres of exclusive Community competence, and by referring to the experience of other federal systems, such classifications tend to be artificial and crudely drawn, and do not themselves resolve the question of appropriateness when it arises in particular concrete policy situations. It will be argued below that the notion of exclusive competence on which the legal articulation of the subsidiarity principle in EC law appears to rest is inherently problematic and uncertain, and does not address the real questions which are raised about the appropriate arena for action in the context of multiple levels of government and multiplying dimensions of governance.

Internal and external dimensions

Questions concerning the division of policy competence and the exercise of power at different levels have always arisen within federal political systems, either in the nation-state context or in the context of more recently constructed supranational systems such as the European Community and Union. These questions, however, are increasingly outgrowing such categorisation, as the relevant centres and dimensions of political and legal decision-making grow in number and complexity. Thus it is not only local and regional entities, along with nation states and supranational players such as the EU which play a role in governance, but also international and transnational public and private fora of different kinds which exercise power in various contexts. While it is clear that the existence of private spheres of governance which are either tolerated and legitimated by the state or which are otherwise resistant to state control is far from new, it is the combination of this phenomenon with the undoubtedly more recent increase in transnational linkages, and in particular with transnational economic organisation and activity, which calls for renewed analysis and reflection. The increasing trend towards the dispersal of power and the fragmentation of decision-making authority both within and beyond the nation state calls for an understanding of subsidiarity - both subsidiarity upwards as well as downwards - in the EU context which is both wider and more nuanced than has sometimes been the case in the past. It is not only a question of recognising when the Community/Union should yield to or share decision-making power with national, regional or more local levels of government which are 'nearer' the citizen, but also when the EU itself ought to act within the constraints of international decision-making, and when it is appropriate to concede that decision-making must take place in a wider context and within the framework set by entities such as international environmental summits, the World Health Organisation, the World Trade Organisation and some of the increasingly influential standardisation bodies such as Codex. To focus mainly on the internal constitutional division of power and responsibility within the EU, without taking adequate account of the increasingly important external dimension of EU action is to gain a limited and partial picture only. This kind of 'reverse subsidiarity' or 'subsidiarity upwards', as it has been termed, is also an important aspect of the debate about appropriate levels of governance in the context of the European Union.

[1] The assumption that globalisation is an exogenous phenomenon which erodes the capacity of nation states to govern has been challenged by Bourdieu, who argues that it is the collusion of official actors within the nation state with broader and global financial forces which has led to the undermining of the traditional role of the state. See P. Bourdieu "The Globalisation Myth and the Welfare State" in Acts of Resistance: Against the New Myths of Our Time (Cambridge: Polity Press, 1998).

[2] D. Held Models of Democracy (Cambridge: Polity, 2nd ed 1996).

[3] See P. Hirst and Thompson, Globalisation in Question (Oxford: Blackwell, 1996).

[4] Note that in the European Commission's most recent report on the subsidiarity principle: "Better Lawmaking 1998: A Shared Responsibility" COM(98)715, the Commission denies the democratic relevance of the subsidiarity principle in the EU context, arguing that the principle "has nothing to do with a 'democratic deficit' that has to be made good: it should not be confused with democratic control of Community action".

[5] See, for an analysis of some of the reasons why issues may become "internationalised" and allocated to a higher level of decision-making, R. Sinnott "Integration Theory, Subsidiarity and the Internationalisation of Issues: The Implications for Legitimacy" EUI WP RSC No. 94/13.

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