The Role of Regions and Sub-National Actors in Europe 9781472563361, 9781841134888

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List of Contributors Joxerramon Bengoetxea (PhD, Edinburgh) formerly of the Court of Justice of the EC, Luxembourg/University of the Basque Country, San Sebastian. Ulf Bernitz is Professor of Law in the University of Stockholm. He participates in the Knut and Alice Wallenberg Foundation Oxford-Stockholm Association in European Law, housed in the Institute of European and Comparative Law in Oxford, which hosted the conference which inspired this book. Caitríona Carter is a Lecturer at the University of Edinburgh and a member of the Europa Institute. She is author of work published in the areas of UK devolution and European Policymaking, and EU governance and social policy. Niilo Jääskinen is a Justice of the Supreme Administrative Court of Finland. Mr Jääskinen was responsible for the status of Åland Islands in the Finnish accession negotiations. Charlie Jeffery is Professor of Politics at the University of Edinburgh and Director of the Economic and Social Research Council’s research programme on Devolution and Constitutional Change. John Loughlin is Professor of Politics at Cardiff University and Visiting Professor at the University of Umea, Sweden. In 2004, he is Visiting Research Fellow, Merton College, Oxford and in 2005, Fellow of the Royal Flemish Academy of Arts and Sciences, based in Brussels. He is Joint Convenor of the ECPR Standing Group on Regionalism. Aileen McLeod is currently Senior Research Specialist on Europe in the Scottish Parliament and author of work published in the area of Scotland and Europe and the legitimacy of the European Parliament. Professor Dr Dr h.c. Peter-Christian Müller-Graff, Universität Heidelberg. Joakim Nergelius is Professor of Law at Örebro University in Sweden. He worked in the Committee of the Regions in 2002–03. Stephen Weatherill is Jacques Delors Professor of EC Law in the University of Oxford. He participates in the Knut and Alice Wallenberg Foundation OxfordStockholm Association in European Law, housed in the Institute of European and Comparative Law in Oxford, which hosted the conference which inspired this book.

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Foreword This collection of essays owes its origins to a conference held in Lincoln College, Oxford in April 2003 under the auspices of the Institute of European and Comparative Law. In 2001 Stephen Weatherill and Ulf Bernitz secured funding from the Knut and Alice Wallenberg Foundation in Sweden to support academic projects involving the Universities of Stockholm and Oxford. This was one of them. The essays gathered in this collection examine the involvement of selfgoverning sub-national and regional actors in the law and policy-making of the European Union. State power is today exercised in the context of the complex institutional environment of the EU. But what of regions and sub-national actors? Are their interests adequately represented—can they advance them or can they, at least, protect them from unwitting or calculated damage? This book surveys the broad questions of law and political science. It explores the ways in which the regions operate within their domestic State structures in order to ease the pressures flowing from the addition of a European layer of governance. It also shows how the regions seek to project their anxieties directly on to the European sphere, not only through formal involvement in the EU’s institutional make-up—most prominently in the EU’s Committee of the Regions—but also through collaborative initiatives launched by the regions themselves, such as the ‘REGLEG’ grouping of regions with legislative powers. Part of the interest is naturally the positioning of self-governing sub-national and regional levels of governance in the debate conducted within and outwith the Convention on the Future of Europe which concluded its business in the summer of 2003, and in the subsequent Intergovernmental Conference which reached consensus on a new Treaty text in June 2004 (and which, as far as the regional dimension is concerned, largely followed the Convention’s proposed model). However, although the possible patterns of reform are clearly part of the regional debate, our conference was not designed as merely a ‘Convention-watching’ exercise, and this book follows the more ambitious model of seeking to reflect on how to ‘layer’ constitutional authority in an enlarged and—perhaps!—rejuvenated European Union. This inquiry reveals a remarkable diversity of regional aspirations and a correspondingly wide range of techniques exploited by the regions to achieve their objectives. It also clearly identifies the need to address the tension between local autonomy and the virtues of centralisation as essential to the future stabilisation of the European Union. At the April 2003 conference held in Oxford papers were delivered by John Usher (University of Edinburgh), Charlie Jeffery (University of Birmingham), Joxerramon Bengoetxea (University of the Basque Country and European

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x Foreword Court of Justice), Peter Müller-Graff (University of Heidelberg), Niilo Jääskinen (Finnish Supreme Administrative Court) and Joakim Nergelius (Committee of the Regions). To all of them we are very grateful for their active participation in a very enjoyable event. Most have been able to contribute a paper to this collection. To that list we are pleased to have been able to add other contributors with relevant expertise: John Loughlin (University of Wales), Stephen Weatherill (University of Oxford), and Catriona Carter and Aileen McLeod (University of Edinburgh and the Scottish Parliament respectively). The collection is completed by an Introductory Chapter written by Stephen Weatherill, which draws together the themes that emerge from the papers in the collection and situates the debate in the wider scholarly and political context.

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1 The Challenge of the Regional Dimension in the European Union STEPHEN WEATHERILL

REGIONAL BLINDNESS

SEDUCTIVELY APPEALING STARTING point holds that the European Union is ‘blind’ to the internal territorial and constitutional arrangements of its Member States. Some Member States prefer internal arrangements that are federal, though the precise rhythm of the chosen models of federalism varies across Europe. Some Member States opt for a unitary model. Others defy ready classification and display hybrid features. But from the perspective of the European Union none of this matters. The European Union is composed of 25 Member States and the obligations, responsibilities and opportunities of membership fall on each of those States in precisely the same manner. There is no account taken of the internal arrangements preferred by the States. Regions are not the EU’s concern. States are.

A

The legal implications of ‘blindness’ EC law provides a number of manifestations of this ‘regional blindness’. A simple example helps to make the point. Germany was arraigned before the European Court for making personal protective equipment for firefighters subject to requirements additional to those specified by harmonising Directive 89/686.1 The German legislation in question was not federal. The offending measures had been adopted in different ways by several of the Länder. Germany asserted that the organisation of fire brigades comes within the legislative competence of the Länder. In December 1998, the German government had informed the Commission that it had written to the Ministries of the Interior of the Länder requesting them to amend the relevant legislation in order to comply with EC law. Two years later the German government, evidently a splendidly patient institution, advised the Commission that it was still awaiting replies from the Länder. 1

Case C–103/01 Commission v Germany [2003] ECR I–5369.

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2 Stephen Weatherill The Commission proceeded to bring the matter before the Court. Once it had established that the protective equipment in question was not excluded from the material scope of the Directive under a public safety proviso, the Court found Germany in violation of its obligations under EC law. The internal distribution of competences within Germany is doubtless of profound importance and sensitivity. But it is not relevant to the ascription of legal responsibility on the EC plane. Awkward though finding a cure might be, the basic Treaty infringement committed by Germany was plain. The State is free to make whatever internal provision it wishes for giving effect to EC law, but it alone is responsible to the EC in the event of breach.2 The German government would be required to write more letters to Ministries in the relevant Länder, who, one might add, could also anticipate potential challenges to their non-complying rules in proceedings based on EC law brought by private parties before local courts. Much the same stance applies in the law governing State responsibility under general international law. A State may not plead internal constitutional hindrances as a basis for excusing non-compliance with its legal commitments.3 In this sense both international law and EC law choose to treat the State as a single entity, fully responsible for securing conformity with the law on its own territory. Pragmatic considerations stand high on the list of explanations underpinning this refusal to allow the reality of internal constitutional sub-division of power dictate the scope of responsibility on the international plane. The credibility of international commitments would be severely compromised were a State able to evade obligations by referring to its internal patterns of governance. Moreover, severe inequality in the treatment of States would follow were one to admit the opening up of the unitary façade on which the law currently insists. If, in the case outlined above, one were to accept that a State may plead internal difficulties as a basis for excusing failure to implement, then Germany would be able to escape responsibility in circumstances where a unitary State such as France would have no possible defence. Accordingly there are strong reasons to shrink from allowing the EU to inquire into domestic constitutional preferences about the structuring of political power. ‘Europe of the Regions’ is an attractive catchphrase, but for the European Union the dominant legal and political paradigm remains a Europe of the States. The majority of the debate at the Convention on the Future of Europe4 strongly asserted that the EU should not intervene in the internal 2 For similar cases involving infractions committed by sub-State actors in which the Member State is treated as as a unitary presence see eg Case C–288/88 Commission v Germany [1990] ECR I–2721; Case C–33/90 Commission v Italy [1991] ECR I–5987; Case C–211/91 Commission v Belgium [1992] ECR 6757; Case C–417/99 Commission v Spain [2001] ECR I–6015. 3 Art 27, 1969 Vienna Convention on the Law of Treaties. See further R Jennings and A Watts (eds), Oppenheim’s International Law 9th ed (London, Longman, 1992), pp 84–5; A Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2000), Ch 10 (especially at p 144, where he notes that EC law is embraced by the Art 27 VCLT proscription upon invoking ‘internal law’ as justification for failure to perform a treaty obligation). 4 The Convention website is at http://european–convention.eu.int/bienvenue.asp?lang=EN& Content=.

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The Challenge of the Regional Dimension in the European Union 3 territorial arrangements of the Member States.5 And the subsequent intergovernmental conference again brought home the centrality of the State in the high politics of EU affairs. Any Treaty designed to renovate the Union could proceed only with the support of all the States—but once the support of all the States is forthcoming, nothing further is needed. So the European Union is ‘region-blind’. Put another way, one can now readily understand the limited version of subsidiarity currently found in Article 5(2) EC. Subsidiarity in EC law is a matter that concerns solely relationships between the EU and the Member States. Subsidiarity as a general notion of good practice should doubtless equally apply to the relationships between different tiers of governance within the Member States. But Article 5(2)’s silence on this dimension of the division of powers shows that this is none of the EU’s business.

Is the notion of ‘blindness’ realistic or even accurate? There are a number of objections to this State-centric portrayal of the nature of the European Union, and they operate at both the descriptive and the normative level. Assuming equality between States is convenient. And yet is it really feasible or sensible for the EU to remain blind to a situation in which NordrheinWestfalen possesses a larger population than 18 of the 25 Member States? Can it be right simply to shrug this off as purely an internal German issue? One must certainly be aware that the regions themselves—or at least some of them—are far from content to accept their formal remoteness from the centres of power in the EU. Most of all, the question is whether the EU, while claiming virtuously to be blind to Europe’s regional dimension, is in fact structured in such a way as to cause substantial adjustments to local arrangements. The allegation, then, is that the EU says it is blind to the internal choices made by the Member States but that in practice its legal order and its system of policy implementation exerts profound effects on the relevant patterns of governance.6 A starting point in making this more critical case is that the regions are subject to obligations imposed by EU law, which are commonly directly enforceable. The regions may be responsible under domestic law for bearing the burden and cost of the implementation and enforcement of EC rules which have been agreed by their State representatives at EC level. But in formal terms they have no access to the negotiating process that generates such laws, whether at times of Treaty revision, when States dominate, or even in the making of secondary legislation, where the Council is the arena of State interests, the Parliament at best an indirect voice for regional aspirations and the Commission concerned 5 In particular CONV 548/03 13 February 2003, ‘Summary report on the plenary session: 6 and 7 February 2003’. See more fully below. 6 Cf J Scott, ‘Member States and Regions in Community Law: Convergence and Divergence’ Ch 2 in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart Publishing, 2002).

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4 Stephen Weatherill with a great many issues and interests that might easily crowd out the regional dimension. So EU law may be made without adequate reference to regional aspirations, yet the regions are subject to its requirements. This is of particular pertinence when the laws made at EU level touch policy areas which according to the internal constitutional arrangements prevailing in the State belong within the competence of the sub-national or regional unit. A brief survey of some of the relevant legal rules makes this point with some force. The European Court has adopted a rather broad notion of the ‘State’ for a number of purposes.7 Article 28 imposes obligations to respect the principle of the free movement of goods. This binds not only the central State authorities but also any organ of the State exercising public power even where it is remote from the State capital.8 The same is true of the Treaty provisions governing the free movement of workers and services, where the Court has found no difficulty in holding that local and regional authorities are directly bound by the relevant rules of EC law.9 The matter extends to secondary legislation, most conspicuously to the application of EC Directives, which are of profound importance in fleshing out the practical details of EC policies envisaged within the Treaty. In principle Directives bind the State, pursuant to Article 249 EC. The State is expected to transpose a Directive into the national legal order and failure to do so may be recorded as a Treaty infraction in proceedings before the European Court. But public authorities within the Member States are not able to ignore EC Directives until such time as they have been duly converted into recognisable local laws. In one of its most creative contributions to the shape of EC law the European Court has ruled that once the deadline for implementation has passed a Directive may have effects within the legal order of the Member States even where the State has not performed the task of transposition which is required by the Treaty. Sufficiently justiciable provisions of a Directive may be applied directly in national legal proceedings. The European Court is of the view that such provisions may not impose obligations on private parties,10 but they may impose obligations on the ‘State’, which for these purposes is defined extremely broadly to cover organisations or bodies subject to the authority or control of the State or possessing special powers beyond those which result from the normal rules applicable to relations between individuals.11 Public authorities within sub-national or regional units in the Member States clearly and comfortably fall within the scope of this definition. It is not self-evident that the Court should have reached this conclusion. One might have supposed that in so far as the default in failing to transpose the Directive into the national legal order lies 7 See eg M Chiti, ‘The EC Notion of Public Administration: the case of the bodies governed by public law’ (2002) 8 European Public Law 473. 8 Eg Case C–2/90 Commission v Belgium [1992] ECR I–4431; Case 407/85 Drei Glocken GmbH and Gertraud Kritzinger v USL Centro-SUD and Provincia autonoma di Bolzano [1988] ECR 4233. 9 Eg Case 197/84 Steinhauser v City of Biarritz [1985] ECR 1819. 10 Case C–91/92 Paola Faccini Dori v Recreb [1994] ECR I–3325. 11 Case C–188/89 Foster v British Gas [1990] ECR I–3133, para 18 of the judgment.

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The Challenge of the Regional Dimension in the European Union 5 with the central State authorities, the application of the provisions of the Directive by a national court would be confined to proceedings against the responsible central State authorities. Not so. The Court prefers a much wider scope of application of unimplemented Directives. Even though public authorities at sub-national or regional level may lack the formal power to implement the Directive, because that is (commonly though not invariably) the job of the central State authorities, they are nonetheless vulnerable to subjection to obligations drawn from the Directive in the absence of the required implementation. In fact the Court has gone further still. In Fratelli Costanzo12 the Court did not simply confirm the subjection of local authorities to obligations drawn from unimplemented or inadequately implemented Directives. Referring to the obligations imposed by Article 10 EC, it insisted that local and regional public authorities must disapply internal law which conflicts with applicable EC law— apparently even without securing an order to this effect from a competent court. This is constitutionally rather extreme, and the Court appears to have chosen not to make such a claim a regular feature of its jurisprudence, but by way of general observation it is plain that the Court has been very active in interpreting both primary and secondary EC law in a manner that greatly enhances its scope for direct application against public authorities in the Member States that are situated below the central level. At this point one may already be wondering just how ‘blind’ to the regional dimension EC law truly is in practice. The objection is that the regions have no direct access to the EC law-making process and, moreover, that they have little opportunity to challenge the validity of acts before the European Community’s judicature, where they have no better standing under Article 230 than a private individual.13 In addition the European Court has also ruled that a regional authority may not pursue proceedings in the guise of a Member State recognised as enjoying privileged status for the purposes of standing even if it has taken over the relevant federal responsibilities for internal purposes.14 This, for the Court, would undermine the institutional balance foreseen by the Treaties and, it added tartly, the EC may not comprise a greater number of Member States than the number of States between which it was established. So the internal reality of local responsibility is simply not recognised at EC level which deals only in State responsibility.15 A region must proceed before the Court of First Instance where it is treated as a non-privileged applicant pursuant to Article 230(4) EC.16 This stance also means that in principle the law or practice of a 12

Case 103/88 [1989] ECR 1839. P van Nuffel, ‘What’s in a Member State? Central and decentralized authorities before the Community courts’ (2001) 38 CMLRev 871; C Boch, ‘Devolution and Community law’, Ch 5 in M Hoskins and W Robinson, A True European: Essays for Judge David Edward (Oxford, Hart Publishing, 2004). 14 Case C–95/97 Wallonian Region v Commission [1997] ECR I–1789. 15 See similarly Case C–180/97 Regione Toscana v Commission [1997] ECR I–5245. 16 Cf A Evans, ‘Regional Dimensions to European Governance’ (2003) 52 International Comparative Law Quarterly 21, 33–42. 13

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6 Stephen Weatherill region that is challenged in proceedings in Luxembourg will be defended by the central authorities—who may perfectly well disapprove of the act. An example from the field of State Aid, involving the awkward relationship between Madrid and the Basque Country, is contained in the contribution to this volume by Bengoetxea. In Germany too the federal authorities have been placed in the unhappy position of dealing with the Commission’s condemnation of a payment which they had neither made nor authorised, precisely because the relevant grantor, Land Sachsen, could not be recognised directly in proceedings which at EU level are blind to the sub-State dimension.17 The problems of representation before the Community judicature are not insuperable, given goodwill and a felicitous alignment of State and regional interests. Jääskinen’s contribution to this volume reveals good Finnish practice in determining how the central government shall defend cases in which the Åland Islands have a direct interest because their competences guaranteed under Finnish law are at stake. The situation is less comfortable in the more politically fraught Spanish environment. And Germany, with 16 Länder, is presented with a more arduous task than Finland, which deals only with single special case of the Åland Islands. The essential point of principle is that the status and room for manoeuvre of regions may be affected by the adoption of EC rules. Those rules may be enforced against them directly, before their own courts. But they have no corresponding access to the Community’s courts. That is the preserve of the central authorities. The risk is that EC law induces centralisation by ‘blindly’ assuming a unitary State where in practice there is not one. So the EU is in form an arena for State action to the exclusion of regional participation. It is in practice rather more that. It is imbalanced, in that it imposes substantial obligations on the regions while allowing them little access to policy-formulation or judicial control.

The loosening of constitutionally protected regional competences In fact, the soreness runs deeper. The regional gripe is not simply that their input into decisions taken at EU level is not secured by any formal arrangements recognised by the EU, while, once those decisions are taken, they find themselves subject to obligations to apply the relevant rules. It is that the bargaining process conducted at EU level may come to rob them of power which they are guaranteed under domestic constitutional arrangements. The most savage version of this anxiety would arise when it is agreed at EC level that a particular matter will be regulated through the EC law- and policy-making process, but where that particular matter is within a Member State the exclusive preserve of a sub-national or regional unit. A number of brands of this subversion may be 17 E Thielemann, ‘Institutional limits of a ‘Europe with the Regions’: EC state-aid control meets German federalism’ (1999) 6 Journal of European Public Policy 399.

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The Challenge of the Regional Dimension in the European Union 7 imagined. It may be that the central State authorities, negotiating in Council, have unwittingly transferred power that had hitherto been jealously protected by the regions in the internal context. Alternatively it may be that the central authorities have transferred power over a particular matter because they judge that such a concession is worthwhile in brokering a broader deal at EU level in the national interest, but that for one particular region within that State the ‘loss’ will be felt a great deal more keenly than any of the gains, because the matter in question is of vital importance to the region’s economy. A yet more insidious transfer process may occur if the central State authorities have cunningly used the camouflage of activity at EC level to lever open and irrevocably alter an internal division of power that would have been politically unshiftable had the debate been conducted solely within the State. This may be wonderfully appealing to State élites, especially if the general popular misperception about the way that EC laws are made can be exploited so that the shift in responsibility is presented with practised sham despair as imposed from ‘Brussels’. A final model could occur if the central State authorities have aggressively pursued a defence of their State’s regional sensitivities but find that they have ultimately been outvoted by a qualified majority in Council not willing to tolerate defence of such red lines. Whatever the context in which the decision is taken, there are no circumstances in which internal rules governing the division of power within a Member State may be used as a formal basis for obstructing the EC’s capacity to act in a field in which it is competent under its Treaty. And, as is made clear above, once an act is adopted it is no defence under EC law that a State cannot comply with the obligations of membership because its internal constitutional arrangements guarantee a region exclusive responsibility for policy-making and/or policy-implementation in the relevant sphere. The result is a potential disempowering of the regional level of governance to the advantage of the EU level, and it is at the EU level that the central authorities of the State are themselves directly involved in law-making. The implication will frequently be that a State is induced to centralise power within its domestic order so as to secure an effective platform for engaging in negotiation and securing subsequent compliance at EU level. This is plainly a more acute issue in federal Member States, especially deeply devolved ones, than it is in unitary States. Requirements under EC law that only one authority within a State shall have responsibility for the application of EC law have caused problems in Finland where matters within Åland competence are concerned. As Jääskinen’s contribution to this volume reveals, dealing with fishing quotas provides an example where the presence of the EU disturbs the clean lines of separation foreseen by the Finnish internal constitutional arrangements. This is the price that the EC pays for its region-blindness. And it is a further reason to question the accuracy of the notion that the EC is truly blind. Its formal lack of regard for domestic constitutional arrangements may be combined with activity that in practice severely disturbs those internal patterns. State responsibility mediated through the EC legal order may encourage trends towards centralisation; or at least the

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8 Stephen Weatherill demands imposed on the State by EC law may impede otherwise significant trends towards decentralisation. The account above surveyed the legal difficulties that the regions face in penetrating the EU’s assumption that States are the dominant actors, but here the political imperviousness of EU processes to regional voices comes to the fore. It is hard for the regions to gain access to the deliberations in order to stop this seepage of power. What is in fact at stake here is a perfectly well-recognised phenomenon in the EU—the EU’s capacity to empower State executives at the expense of other interested national actors18—which deserves examination specifically in the context of the regional/sub-national dimension. It is conventionally understood that aside from the special case of Denmark19 national Parliaments are generally rather poor at performing the function of checking the conduct of their Ministers in Council.20 Information is frequently deficient; time is short. This is a central element in constructing the thesis that the EU has become an arena in which executive power is consolidated and enhanced at the expense of orthodox local democratic (parliamentary) control. But it may be that the EU’s perceived tendency to strengthen national executives and thereby to cause a creeping disenfranchisement of national Parliamentary control in States applies with even more force to regions and sub-national political actors. They are even less likely to be able to acquire the necessary information about proposed EC activity or to exert direct political control or to insist on accountability.21 The contribution of Carter and McLeod to this collection explores the strategies devised by the Scottish Parliament to bridge these gulfs, which involve Edinburgh checking what is afoot in both Brussels and London, against a background which offers the institution no established model on which to rely because of the novelty of devolution and the sub-State character of the Scottish Parliament itself. They show how practices have already changed markedly over a short period of time, as Scotland, in part provoked by the evolving debate about good governance at European level and most of all by the quest for trans18 This is most closely associated with the work of Andrew Moravcsik: see in particular his The Choice for Europe (London, UCL Press, 1999). 19 For an account of this special case prepared for the Working Group on National Parliaments see WD 024—WG IV 18 September 2002 (Dam Kristensen). 20 See A Maurer and W Wessels (eds), National Parliaments on their Ways to Europe: Losers or Latecomers (Baden-Baden, Nomos, 2001), and with particular reference to the Convention process, A Maurer and T Bühler, ‘National Parliaments in the European Architecture: elements for establishing a democratic and efficient mechanism’ Federal Trust Paper 06/02, March 2003, http://www.fedtrust.co.uk/default.asp. For a survey of national practices that extends beyond Parliamentary involvement see H Kassim, G Peters and V Wright (eds), The National CoOrdination of EU Policy (Oxford, OUP, 2000); for inquiry into the particular case of the Parliaments of the Member States which joined the Union in 2004, covering both pre- and post-accession scrutiny, see W Sadurski, ‘Accession’s Democracy Dividend: The Impact of the EU enlargement upon Democracy in the new Member States of Central and Eastern Europe’ (2004) 10 European Law Journal 371, 382–89. 21 In the case of the Åland islands a very practical point adds to the difficulty in participating actively in the shaping of Finnish policy expressed in Council—language. Relevant documentation may not be readily available in Swedish, the language of the vast majority of the Åland islanders.

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The Challenge of the Regional Dimension in the European Union 9 parency, has begun to develop a model that departs from the inherited Westminster orthodoxy and better suits its own priorities and problems. New phenomena may deepen the problem. In this collection Bengoetxea draws attention to the capacity of soft law initiatives, in particular within the framework of the Open Method of Co-Ordination, to generate a further erosion of regional competence. For example, the visible temptation to develop EU-level guidelines on educational quality, typically a matter of local competence within Member States, risks new tensions. Bengoetxea suggests that the regions are currently rather slow to track these shifting patterns, although, as he explains, in Spain the Autonomous Communities in any event have only limited formal access to the debate. This issue reveals a region-specific dimension of a wider problem that is as yet under-appreciated in the evolution of new forms of governance for the EU: that the preference for soft law instruments may serve to take the heat out of the debate as to whether there is truly competence to pursue particular initiatives within the framework of the EU, but store up trouble for the future when there will eventually arrive a reckoning of the tensions generated by the spread of non-binding activity into potentially constitutionally unauthorised areas.22 This may be ‘competence creep’ renewed. By way of concluding introductory observation, one should not neglect that the issue of transnational rule-making impinging on jealously protected sub-national competence is not unique to the EU. The involvement of States in ever more sophisticated international institutions is a necessary response to the pressures of globalisation. But it also tends to subvert lower levels of governance, which may have powerful claims to legitimacy that are being usurped without adequate account being taken of their claims.

THE DEPTH AND THE BREADTH OF EUROPE’S REGIONAL IDENTITIES

The historical roots of regional aspirations Let it not be supposed that these are technical matters. Given that regional autonomy from the command of central government has in many areas of Europe been hard won, often in domestic circumstances of great cultural sensitivity reflecting the virtues and vices of nation-building and majoritarian politics, one would suppose that the direct or indirect intrusion of the EU into the domestic settlement would be treated with extreme caution, even scepticism, by the regions and sub-national actors. This is indeed conspicuous in the papers collected in this volume. Moreover, it must be appreciated that among the Member States there is great complexity and diversity when one inspects the patterns of political organisation adopted to cope with the tension between 22 For some relevant exploration see S Borras and B Greve (eds), Special Issue: The Open Method of Co-Ordination in the European Union, (2004) 11 Journal of European Public Policy Number 2.

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10 Stephen Weatherill the efficiencies available through centralisation of power and concern to show respect for local (political, cultural) autonomy. There is no single consistent historical narrative. Regions and nations that are not States in Europe have pasts that are as rich as they are varied. We find federal and unitary states. The former are typically more sensitive to protection of regional autonomy than the latter. But the degree and manner of protection varies enormously—Austria, for example, offers a far more centralised federal model than Belgium—unitary States display different characteristics that, moreover, tend to be susceptible to change over time: for example, the UK. The degree of acceptance of the worth of protection of regions and sub-national actors varies too—contrast Germany with Spain, for example. But the patterns are not merely associated with effective management of the problem of governing. They are associated with identity, representation and democratic legitimacy. Loughlin’s survey in this collection takes as its starting point the history of the nation-State in Europe as a tale of national centralisation and regional peripheralisation. But it is not a single narrative. Loughlin’s examination of the way in which the EU has affected the function and aspirations of regional entities is conducted against a background of diversity in basic political architecture among the Member States and reveals changing patterns over time dictated inter alia by dominant political ideologies. There is no identikit State-building model in Europe even if several States have experienced broadly comparable histories of growth through absorption of regions and even smaller nations.23 Once one places these trends in the context of the EU one can immediately appreciate the tensions that are unavoidably at stake. In so far as the EU has been implicated in a creeping centralisation of power in Europe, there still lurks the fear of the emergence of a State-like entity at European level which will be inadequately equipped with devices for preserving and promoting regional diversity and autonomy. Battles—and this is no metaphor—have been fought to secure a broadly satisfactory balance of power between central authorities and regions within a State. The EU is faced with the charge that it is a destabilising force and that, in particular, it is liable to undermine local constitutionallyprotected autonomy. Subsidiarity is the classic catchphrase which captures this brand of ‘competence anxiety’, but it is more question than answer and, moreover, as already remarked upon above, Article 5(2) EC is textually inapt to interrogate the sub-State dimension. In some cases the alarm felt by the regions is well known. For example the German Länder’s concern that the competences allocated to them under the German constitution should not be allowed to escape their control as a result of 23 See also J Loughlin et al, Subnational Democracy in the European Union: Challenges and Opportunities (Oxford, Oxford University Press, 2004); J Dutheil de la Rochere and I Pernice, ‘European Union Law and National Constitutions: General Report to the FIDE XX Congress 2002’ WHI-Paper 17/02 (Walter Hallstein Institut), http://www.whi-berlin.de: also http://www.fide2002. org/reports.htm; M Keating, ‘European Integration and the Nationalities Question’ (2004) 32 Politics and Society 367.

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The Challenge of the Regional Dimension in the European Union 11 constitutional developments at EU level is familiar to any general observer of European politics.24 The paper contributed to this collection by Müller-Graff makes clear in detail how deep-rooted this matter is. It is fundamental to the German constitutional system that the Länder are not the result of decentralisation. The Länder founded the Federal Republic on the extinction of the Third Reich’s centralised and (for Germany) wholly atypical model. Federalism is chiselled boldly into the Grundgesetz and into German constitutional assumptions, and preservation of this character conditions the German constitutional approach to the EU. This immediately elucidates the depth of sensitivity about the EC’s perceived ‘competence creep’ which underpins both the Bundesverfassungsgericht’s famous Maastricht ruling25 and the readiness of Germany to proceed before the European Court to challenge (successfully) the validity of the Tobacco Advertising Directive.26 What was at stake was not simply the power of the German state to exercise control over the path of European integration. What was at stake was the balance of the internal German constitutional settlement, and the perceived risk of it suffering severe damage should the EU acquire powers that had not been duly authorised under its Treaty, which itself had been ratified in accordance with approved domestic constitutional procedures. So the question is the scope of the transfer of powers, and the issue of interpretation of what really is that scope. The case of the Åland Islands, the subject of examination in this collection by Jääskinen, is less widely known. The status of the islands can be understood only with reference to the turbulence of territorial domination of Finland by (at different times) Sweden and Russia. The Åland Islands had the explicit opportunity to choose not to become part of the Union at the time of Finnish accession, and only confirmed readiness to participate after a separate referendum and a decision of the Åland legislative assembly. The background is a very carefully planned structure of regional autonomy, reflecting and protecting the cultural heritage of the Islanders which marks them apart from the Finns.

Patrolling the fault lines Two constitutional features commonly combine to provide an arena within which regional autonomy guaranteed at State level may be jeopardized by the growth of the EU. The first is the exclusive competence of the central State authorities to conduct external relations and the second the fact that in a 24 Cf C Jeffery and P Savigear (eds), German Federalism Today (Leicester, Leicester University Press, 1991); U Bullmann, ‘Germany: Federalism under Strain’ in J Loughlin et al, Subnational Democracy in the European Union: Challenges and Opportunities (Oxford, Oxford University Press, 2004). 25 Brunner v European Union Treaty, 12 October 1993, 2 BvR 2134/92, 2 BvR 2159/92; an unofficial translation is available at [1994] 1 CMLR 57. 26 Case C–376/98 Germany v Parliament and Council [2000] ECR I–8419.

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12 Stephen Weatherill number of areas the EC has competence under its Treaty in areas which within the State are not the exclusive preserve of the central State authorities. The exclusive competence of the central State authorities to conduct external relations In Germany the Grundgesetz equips the federal government with powers to conduct foreign policy—even where matters that internally belong with the Länder are at stake. This covers the case of the EC/EU. This, then, initiates the basic tension—there is an asymmetry between the limitations of the central State authorities when they operate on the internal plane and their more extensive power guaranteed on the external plane. The same is true of Spain. External affairs—including relations with the EU—are an exclusive competence of the central government. Here too the risk is plain: that the central government participates in negotiations at EU level in areas in respect of which competence internally belongs with the Autonomous Communities, leading to the potential problem that action agreed at EU level may serve to maladjust the equilibrium of power allocation achieved internally. In the United Kingdom relations with the EU are not devolved from Westminster, although the EC is competent in a number of areas for which a degree of responsibility lies with the (asymmetrically empowered) authorities in Scotland, Wales and Northern Ireland.27 The same tension is once again visible. Overlap between EU competence and sub-State competence The matters for which regional parliaments are responsible commonly cover some of the same areas for which competence is attributed to the EC/EU under its Treaties. This, as mentioned, is evident in the case of Germany, Spain, and the United Kingdom. In the case of Finland Jääskinen shows that the system is based on a mutually exclusive, exhaustively defined demarcation of competence between the Åland Islands and the Finnish State. A number of areas reserved to the Åland Islands also fall within EC competence, including agriculture, fisheries and environmental protection. The application of the EC Treaty to the Islands is the subject of an explicit reference in Article 299(5) EC and a Protocol allows preservation of rules restricting outsiders from inter alia acquiring real property in the Islands, and also maintains tax-free selling on ferries to and from the Islands. So a small attempt is made to insulate the particular concerns of the Åland Islands from the application of the normal assumptions of the EC Treaty. But there is much more to the issue of overlapping competence, and the tensions and the 27 A Evans, ‘UK devolution and EU Law’ (2003) 28 European Law Review 475; C Boch note 13 above. See more generally on patterns of change in the UK, V Bogdanor, ‘Our New Constitution’ (2004) 120 Law Quarterly Review 242.

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The Challenge of the Regional Dimension in the European Union 13 potential problems cannot be captured or solved by the simple world of exceptions on paper. The problem is therefore that the EC is frequently competent to act in areas that within the State are not the preserve of the central authorities; and yet it is the central authorities that are conducting the negotiation at EU level. The risk of regions ‘losing’ autonomy is stark. Here is the fuel of centralisation, at EU level and within the State driven by the fact of EU membership. Admittedly some competences that are typically allocated at sub-national level within the Member States are the subject of careful textual limitation at EC level, so that a wholesale transfer is not possible (if the rules are respected). Education, Culture and Consumer Protection provide examples; in these instances the EC Treaty equips the EC law-maker with competence to act but the ambit of intervention has been drawn with ostentatiously cautious textual precision.28 But nonetheless the truth is that the practical reach of the EU is much broader today than it was twenty years ago, partly as a result of Treaty revision, partly as a result of legislative and administrative practice, so that the scale of the problem has grown, as has sceptical appreciation. The general issue is the analytically important distinction between internal and external sovereignty—whereby a State may be sovereign in the external sense yet possess a constitution which does not allocate full sovereign power to any single organ within the State29—and how this is shaped within the peculiar ‘region-blind’ context of the EU, which adds another layer to the debate about sovereignty.

STRATEGIES DEVISED BY THE REGIONS

The issue for the regions and sub-national actors is how they can affect the EU law-making process in a manner that satisfies their aspirations. The regions have an enduring interest in achieving some measure of compensation for the centralising tendencies of the process of European integration.30 Can they break the pattern that treats them as mere ex post facto implementers of EC law and instead assert a voice ex ante, in the preparation and negotiation of EC rules? This invites consideration of their ability both to shape those rules and to oppose them—that is to say, the regions may have an interest in participating more effectively in discussions about the content of rules at EU level and they may also have an interest in finding devices for blocking the EU from interfering with their constitutionally-protected internal patch.

28

Arts 149–50, 151 and 153 EC respectively. See especially N MacCormick, Questioning Sovereignty (Oxford, OUP, 1999), Chapter 8 ‘On Sovereignty and Post-Sovereignty’; also N Walker (ed), Sovereignty in Transition (Oxford, Hart Publishing, 2003). 30 It is revealing that the vocabulary of ‘compensation’ is employed by no fewer than four contributors to this volume: Bengoetxea, Jeffery, Müller-Graff and Jääskinen. 29

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14 Stephen Weatherill Available strategies and their impact on the nature of regional power There are several distinct aspects to this inquiry. One invites assessment of the ability of the regions to assert a tighter control over the way that their State’s Ministers go about their business in the Council. How can the regional dimension become a more formal element in dictating the attitude taken in Council? In part this is a question of internal arrangements—can the regions attach reins to their State’s Ministers? But this concern has spilled over into the Treaty itself. The Maastricht amendments brought the possibility of a Minister other than one holding office within the central government representing a Member State in Council. This may be taken as an attractively concrete manifestation of the much more general (and legally woolly) notion of subsidiarity, which was also introduced at Maastricht as a general principle within the Treaty. It remains purely an empowering provision. Blindness persists in the sense that it is for the Member States to choose whether to activate the power to allow representation in Council by a regional actor, and then to cope with the potential awkwardness of a schism between the promotion of State interests and sub-State interests. This breeds inevitable diversity in practice.31 Another issue surrounds the ability of the regions to make their voice heard more directly, as regions as such rather than via the Council, within the EU’s own decision-making process. This asks how far the EU institutional architecture might explicitly recognise the role of regions and sub-national actors. Immediately the well-established Committee of the Regions springs to mind, an institution the existence of which might be taken as unambiguous recognition that the regions and sub-national actors are a group deserving of formal involvement in the EU law- and policy-making process itself, but which might, with a glance of scorn at its limited advisory powers, equally be taken as a reflection of the willingness of the Member States to pay lip service to ‘regionalism’ while in practice ensuring that real power in the EU system remains firmly in the hands of national executives acting in Council. But the role of the Committee of the Regions invites further reflection on how the regions can gain access to the policy-making process— perhaps to secure recognition of their distinctive anxieties, perhaps simply to press that the EU should not act in a manner that will perturb the local order. The picture is complex, not least because some regions are well able to mobilise and assert an identity on the European plane. There may be an emergent ‘third level’ in Europe, on which regional actors become important players, formally and informally, individually or collectively, not simply within their State but beyond it.32 So, for example, Brussels, home to many lobby groups, is 31 Cf A Evans, ‘Regional Dimensions to European Governance’ (2003) 52 International Comparative Law Quarterly 21, 24–8. 32 Eg C Jeffery (ed), The Regional Dimension of the European Union: Towards a Third Level in Europe? (London, Frank Cass, 1997); M Keating and L Hooghe, ‘By-Passing the Nation State? Regions and the EU Policy Process’ in J Richardson (ed), European Union Power and Policy-Making (London, Routledge, 2001); M Keating, ‘Europe’s Changing Political Landscape: Territorial

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The Challenge of the Regional Dimension in the European Union 15 also a place where regions and sub-national actors seek to secure influence and involvement in policy-formation. Are regions and sub-national actors here effectively ‘going over the heads’ of their national governments? This will be especially friction-laden where governments of different political complexions hold office at central and regional level. Further, of course, some regions will be more effective than others in pressing their case in this manner. So the ‘third level’ is homogenous in neither composition nor degree of influence. A further relevant element is provided by the development of collaboration between regional actors. This is especially prominent in tracking the patterns of cooperation involving the regions with legislative powers—the so-called ‘REGLEG’—where much is occurring outwith the formal bounds of the EU and under an assumption that the Committee of the Regions is too feeble to meet (some) regional aspirations. This then invites reflection on how to judge the impact of such jockeying for position. Is this indicative of the EU as a source of empowerment or even liberation for the regions and sub-national actors, in contradistinction to the more orthodox assumption that the EU is an enfeebling influence? Obviously a nuanced analysis is appropriate here—doubtless both the ‘empowerment’ and the ‘enfeebling’ theses contain elements of truth, and the diagnosis must vary over time, by State and according to sector. The relevant literature is appropriately rich and varied.33

Regional anxieties expressed via the Council The German case provides a helpful insight into the possibilities and limitations of such strategies. Strenuous efforts have been made to bridge the gap that places external competence at central level for matters that internally belong with the Länder. What matters is how the Länder are able to influence the German stance on policy-making in the Council by using domestic procedures; and then how they may defend their interests at EU level. Within Germany, any transfer of German sovereignty at times of Treaty revision is subject to carefully planned internal processes of authorisation that involve the consent of the Bundesrat, in which the Länder enjoy representation,34 which is also subject to Restructuring and New Forms of Government’ Ch 1 in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart Publishing, 2002); J Loughlin et al, Subnational Democracy in the European Union: Challenges and Opportunities (Oxford, Oxford University Press, 2004). 33 See references at note 32 above; also eg C Jeffery, ‘Sub-National Mobilization and European Integration’ (2000) 38 Journal of Common Market Studies 1; C M Dudek, ‘Can the European Union influence the functioning of Regional Governments?’ RSC 2000/49 (Florence, EUI, 2000), http://www.iue.it/PUB/WorkingPapers.shtml; J Anderson, ‘Europeanization and the Transformation of the Democratic Polity, 1945–2000’ (2002) 40 Journal of Common Market Studies 793; A Bourne, ‘The Impact of European Integration on Regional Power’(2003) 41 Journal of Common Market Studies 597. 34 Cf H Hofmann, ‘Parliamentary Representation in Europe’s System of Multi-Layer Constitutions: a Case Study of Germany’ (2003) 10/1 Maastricht Journal 39.

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16 Stephen Weatherill the constitutional exclusion of a transfer that would damage the fundamental federal principles of the Grundgesetz. This is a relatively sophisticated attempt to ensure that the regional protection guaranteed under the German constitution spills over into the external sphere. Müller-Graff’s paper in this collection shows how one may doubt how reliable is this protection, given the contested nature of what truly is protected under this system. Suspicion that this formula is not reliable is one factor that motivated Länder pressure for a clear catalogue of EU competences to be crafted through the Convention. This is a classic example of a technique designed to hold the EU at bay, in preference to seeking to pursue the laborious quest of injecting greater regional participation into its decision-making processes. In so far as the adoption of EC secondary legislation is concerned, the federal government is required to inform and consult the Bundesrat about proposals. The precise role of the Bundesrat depends on which type of competence (seen from the internal German perspective) is at stake in the EC negotiation. This too has a sophisticated appearance but Müller-Graff cautions that it must be viewed in a context that concedes that the system is lacking precision, and may be interpreted by the federal government in a manner that by no means satisfies the Länder that their concerns are being adequately protected. The Maastricht amendments which allow for a Minister from a sub-national unit to act on behalf of a Member State in Council have been activated in Germany. Where the EU matter is predominantly concerned with competences belonging to the Länder it is provided that Germany may—and in some circumstances must—be represented in Council by the Länder. This sensitivity to Länder concerns is a more sophisticated system than is found in most other Member States but even here disagreement may attend the decision on when the Länder should assume responsibility. The picture that emerges from Müller-Graff’s account is dynamic. The Länder may aspire to the creation of secure barriers that would fence off their competences guaranteed under the Grundgesetz but this is incompatible with the fluctuations of law and politics and, most of all, it is challenged by the EC Treaty’s functionally broad competences to act, Articles 95 and 308, which the Convention concluded could not be abandoned without causing irreparable damage to the EU’s capacity to discharge its functions.35 Process and institutional arrangements therefore come to the fore in understanding the extent to which the regions can keep the EU off their patch.36 Direct involvement of the 35 See Arts I –17, III–65 of the draft Constitution; for fuller discussion see the contribution of S Weatherill to this volume, and, beyond the regional case, S Weatherill, ‘Competence creep and competence control’ (2004) 23 Yearbook of European Law. 36 This emphasis on procedural devices is also visible in the US: for comparative perspectives see generally K Nicolaidis and R Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford, OUP, 2001); also in this vein is W Swenden, ‘Is the European Union in Need of a Competence Catalogue? Insights from Comparative Federalism’ (2004) 42 Journal of Common Market Studies 371.

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The Challenge of the Regional Dimension in the European Union 17 Länder in the EU’s decision-making process is allowed in exceptional circumstances, but it is has plainly been resisted that the allocation of competence within Germany should be fully reflected on the external plane—so that, for example, Germany’s voting power would in such cases depend purely on the Länder. The core tension in this area is that a complete abandonment at EU level of the notion of regional blindness (Länderblindheit) would make the EU itself unworkable. So the internal patterns for securing Länder participation which are explained by Müller-Graff remain of vital importance. What is at stake here is a rather intriguing mix of strategies—it is unwise for the regions to aim for either active influence in the EU or watertight insulation from the EU. They need to adopt features of both strategies. This dual track is explored at a more general level in Jeffery’s contribution to this collection which considers not only the German case but stresses inter alia the different approaches taken in the different political contexts that condition the treatment of regions across Europe. In Spain we learn from the contribution of Bengoetxea that the allocation of competences to the Basques under the constitution and the autonomy statute was disturbed by accession to the EU and consequent transfer of competence to that supranational level. It was little grasped at the time what impact this would exert, and it was unappreciated that the disempowered Autonomous Communities (ACs) should have been in some way protected from seepage. Spain is a quasi-federal system, but the unitary character of its chameleon existence is at its strongest in external matters, and that is how relations with the EU have been shaped. The ACs possess carefully protected—though varying—roles in the internal distribution of functions but are only indirectly involved in external matters even where their competences are directly implicated. Attempts to smooth off the rough edges of friction have concentrated on establishing a modus vivendi within which negotiation takes place between the central State authorities and the ACs. Moreover the ACs have their own delegations in Brussels and although their valid existence has withstood a constitutional challenge by the central government they are still unsupported by the central government and are not permitted access to the Spanish delegation to the EC, nor do the ACs have formal access to Spain’s voting power in Council. The Spanish permanent representation created a commissioner for the ACs in 1996 who is charged with the task of keeping the ACs informed. But even here the Basque AC is denied access to documents in respect of some matters for which it is competent under Spanish constitutional law. The overall picture is of a determination on the part of the central State authorities to retain exclusive grip on relations with the EC, and not to allow direct participation by the ACs. The assymetric reality of power distribution within Spain is set aside by the central government when it operates on the external plane, thereby challenging the viability of the existing internal pattern in so far as the growth of EU activity takes away practical power from the ACs. Bengoetxea provides a menu of what might be done were the political climate to alter, although there is a current general political antipathy among the main Spanish political parties to granting the

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18 Stephen Weatherill demand of the ACs for greater involvement. In this light the proposal to proceed towards finding a direct place in Council for the Basque Country as a separate Member State has found little sympathy. This notion of ‘internal enlargement’ of the Union37 carries a certain logic when one considers the desire to protect competences reserved exclusively to the Basques under the Spanish constitution but imperilled by the EU. But the EU’s regional-blindness treats this as a matter for Spain to cope with. So the German case where, for example, the Länder may represent Germany in Council, finds a feebler echo in Spain. One element in understanding this variation lies in the relative lack of harmony between the central authorities in Spain and (some of) the ACs compared with Germany where one may conclude that there is a greater acceptance of the importance of promoting the domestic virtues of regional participation even at EU level. In its recognition of the importance of projecting domestic respect for regional autonomy on to the European sphere, in so far as that is compatible with the effective functioning of the EU, the Finnish example may be taken to be closer to the German than the Spanish model. A seat on the Committee of Regions was reserved for the Åland Islands. The islands’ role in selecting appropriate models of implementation was secured. And arrangements were crafted to promote the participation of the Islands in the preparation of the Finnish negotiating position in Council, and where possible at Council meetings themselves. Åland has a representative in Brussels within the formal Finnish delegation. But the bottom line remains that it will frequently be unavoidable that a single Finnish position in EU decision-making must be chosen and Åland disquiet cannot displace the ultimate power of the Finnish government to set aside its view. It has neither an EU nor a Finnish basis in law to obstruct a stance proposed to be taken at EU level by the Finnish government with which it disagrees. In the United Kingdom concordats have been adopted which are designed to provide an effective communication between central government, which remains solely involved with the negotiating process at EU level, and the authorities in Scotland, Wales, and Northern Ireland which assume responsibility for the application of the agreed EC rules in areas within their devolved competence.38 The contribution of Carter and McLeod to this collection shows how prior to devolution discussion between the Scottish Office and Whitehall assumed repetition of pre-existing practice but that it became increasingly apparent that the procedures were inadequate to satisfy the European 37

Cf eg CONV 298/02 24 September 2002 (MacCormick). Cf S Bulmer, M Burch, C Carter, P Hogwood and A Scott, British Devolution and European Policy-Making: Transforming Britain into Multi-Level Governance (London, Palgrave Macmillan, 2002). Evans note 27 above looks in particular at Northern Ireland; on Wales and Scotland see C Carter, ‘Democratic Governance beyond the Nation State: Third-Level Assemblies and Scrutiny of European Legislation’ (2000) 6 European Public Law 429 and also A Ross and M Salvador Crespo, ‘The effect of devolution on the implementation of European Community law in Spain and the United Kingdom’ (2003) 28 European Law Review 210. 38

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The Challenge of the Regional Dimension in the European Union 19 Committee of the Scottish Parliament that effective ex ante review was feasible, not least because of the confidentiality of some aspects of practice pursued under the concordat. Transparency, a leitmotif of EU-level thinking about good governance, was transplanted to Scotland as a cornerstone of renewed commitment to more vigorous, focused and distinctively Scottish modes of scrutiny which have spilled over beyond the European Committee to become ‘mainstreamed’ in the general practice of the Scottish Parliament. The Scottish Parliament has also begun actively to educate its officials in the importance of the EU dimension, and Parliamentarians are developing direct contacts with relevant officials in the EU institutions. Since the Autumn of 2004 the Scottish Parliament has had a permanent office in Brussels.

The regions as actors in their own right The question here is whether the regions can band together to fight their corner, rather than—or, perhaps more pertinently, in addition to—promoting their interests via national delegations in Council. They can and they do band together, but the starting point in understanding the limitations of such strategies is the fact of regional heterogeneity. What is really at stake is not the defence of a corner, but of corners. Nevertheless the rise of inter-regional collaboration provides an exciting glimpse of the shifting patterns of power and governance in Europe. New types of actor, not simply no longer bound to the State model but indeed being actively shaped because of dissatisfaction with the limitations of the State model, are doing much to prod thinking about what multi-level governance really might mean in a fluid world of rapidly changing economic and political structures.39 There are important developments both within the formal architecture of the EU and outwith it. Within the EU family: the Committee of the Regions The Committee of the Regions was established by the Maastricht Treaty in order to provide an official status for local and regional authorities within the EU. Its role is advisory. In this collection Nergelius explains how the Committee of the Regions was not initially based on any appreciation of the diversity of powers and interests of the regions. Its creation reflected disquiet that the voice of the regions was muffled by the central State domination of the Council but there was neglect of the point that different regions had different concerns and different expectations of seeing them addressed. In short, the Committee of the Regions assumes a 39 Cf eg M Keating, ‘Regions and the Convention on the Future of Europe’ (2004) 9 South European Society and Politics 192; M Longo, ‘European Integration: Between Micro-Regionalism and Globalism’ (2003) 41 Journal of Common Market Studies 475.

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20 Stephen Weatherill false homogeneity. The point is also clear in the chapter contributed by MüllerGraff, where it constitutes a reason for doubting whether the Committee of the Regions meets the aspirations of the German Länder, and the assumption that the Committee of the Regions, as currently constituted, cannot serve as an authoritative voice for the regions similarly underpins the contributions of Jeffery and Loughlin. In any event, the Committee’s advisory role leaves it vulnerable to the suspicion of window-dressing—although this, of course, must be considered as an attack not on the Committee but on the cautious State bargaining that crafted it at the time of adoption of the Maastricht Treaty. Nergelius finds that that it was only at Laeken in 2001 that overt recognition of the varying types of region became visible in EU-level discourse. In the meantime the more powerful regions, frustrated by the limited ability of the Committee of the Regions to meet their aspirations, had already looked for other devices outside the formal parameters envisaged by the Treaty, such as opening their own offices in Brussels and by pursuing horizontal co-operation, most conspicuously in the ‘REGLEG’ group. The Committee of the Regions tended to appear marginalised. Initiatives pursued outwith the formal EU structure Horizontal co-ordination between the regions and sub-national actors has grown apace. Perhaps more significant than the Committee of the Regions has been the creation of associations which are not formally recognised under EU law. The regions—or at least some of them—have banded together to pursue common interests. This form of horizontal co-ordination supplements the vertical intra-EU notion of regional mobilisation represented by the Committee of the Regions. It is well known that the regions with legislative powers—the ‘REGLEG’—have pursued increasingly intense forms of collaboration. This trend, the subject of examination in this collection by Jeffery, is interesting in itself while also inviting reflection on the extent to which differently constituted groupings of the regions and sub-national actors emerge as a result of different background histories, aspirations and constitutional foundations. More broadly these trends invite further reflection on how a simple hierarchical model of ‘EU—State—regions’ does not adequately capture the reality of complex cross-cutting alliances in Europe. And the more effective such associations are shown to be in driving forward regional interests the more one would wish to challenge the notion that the EU harms regional power. It may in fact provide an arena within which regions may go over their States’ heads, individually (by opening offices in Brussels) or, probably more effectively, collectively, in so far as functionally comparable groups emerge.40

40 For evidence of both strategies pursued by local authorities in the UK, see G Pearce, ‘British sub-national Government engagement in Europe’ (2000) 6 European Public Law 595.

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The Challenge of the Regional Dimension in the European Union 21 Loughlin’s contribution to this collection shows that genuine transnational regional mobilisation arrived fairly late on the scene. In the early years regional aspirations were largely vented—and frequently suppressed—through attempt to exert pressure within the traditional nation-State framework. But by the 1980s the availability of even quite modest funds available at EU level attracted regions to look beyond their State orders—not least because the rise of neoliberalism meant that funds were less readily available for regional development from their own governments. Part of this process generated regional collaboration and even though the Committee of the Regions represented the first formal fruit at EU level, and was rather disappointing especially from the perspective of the more powerful regions, it nonetheless showed the regional issue to have hit the political agenda. Loughlin finds effective regional ‘mobilisation’ to have subsequently stalled, especially at the time of the preparation of the Amsterdam and Nice Treaties when the regional issue made little impact even though it had in no way been ‘solved’. He identifies the importance of the rise of the ‘REGLEG’ grouping and, like both Jeffery and Nergelius, points to the inappropriateness of assuming a ‘one size fits all’ approach can meet the expectations of Europe’s regions. The Åland Islands have actively participated in the ‘REGLEG’ grouping, in part because of the ultimate fact that they cannot in law prevent the Finnish govermment pursuing a policy at EU level with which they are in disagreement. As Jääskinen observes, ‘REGLEG’ offers another channel of influence. In Spain the reluctance of the central State authorities to allow protection on the external plane of competences that are allocated to the ACs within the internal system has provoked the Basques actively to pursue the construction of networks of co-operation including the REGLEG grouping. Horizontal strategies are designed both to share information among like-minded sub-State actors as well as allowing collective action designed to increase the chances of extracting a more vigorously influential role before the EU institutions.

THE REGIONS AT THE CONVENTION

At the Convention on the Future of Europe the regions and sub-national actors pressed for a higher degree of involvement than they were in fact eventually permitted.41 Loughlin’s paper in this collection outlines the aims and strategies of the constitutionally stronger regions and the Committee of the Regions at the Convention. He finds that from the start the Convention was not open to active participation by sub-national actors. The composition of the Convention was dominated by national Parliamentarians and representatives sourced from the 41 The Convention website is at http://european-convention.eu.int/bienvenue.asp?lang=EN& Content=.

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22 Stephen Weatherill EU’s institutions. Even the Committee of the Regions was allowed to appoint members of the Convention, but saw them confined to observer status. Other regional groupings were given a hearing but enjoyed no special status.42 Loughlin’s paper sets out the demands of the Committee of the Regions, the Assembly of European Regions and the narrower grouping of Constitutional Regions and ‘REGLEG’, the group of regions with legislative powers. Their concerns were not precisely congruent—nor could they ever conceivably be so, given the diversity of regional contexts and aspirations in Europe.43 But they were in a number of respects overlapping, and were generally aimed at securing a more powerful voice in EU law- and policy-making, in implementation as well as before the Court. And they were, in short, largely unsuccessful. Let it not be thought that the regional case was not made with vigour at the Convention. Some participants sought energetically to push the regional dimension on to the agenda.44 One would mention above all Neil MacCormick, an alternate representative of the European Parliament and a Scottish nationalist. He prepared a contribution tellingly entitled ‘Democracy at many levels’, in which he expressed regret that the Praesidium had decided against the establishment of a Working Group dealing explicitly with regional and local matters.45 He offered a number of cautions that have been little heeded, such as the inappropriateness of the general term ‘region’ for some sub-State entities which are more properly treated as nations. He also argued in favour of direct consultation of sub-national actors where matters fall within their competence.46 This, of course, was a concession ultimately won by national Parliaments. But not by their sub-national brethren. MacCormick followed up his concerns by attempting to put ‘Stateless Nations’ on the Convention’s agenda. A contribution of January 2003 made the case that the EU contains more nations than States, picking out Spain, Belgium, the UK, Germany ‘and arguably France and Finland’ as composite States.47 Some of the nations are bigger—and more diverse—than some of the Member States, especially when one contemplates the newly arrived ten States of Central and Eastern Europe (and Malta). MacCormick pressed the case that some method must be found to grant a special status within the EU to such stateless nations and to regions with their own legislative powers. This, then, raises the notion of a distinct tier lying between the Member State and the ‘normal’ region. This was rich fare. Too rich for the majority at the Convention. Most Conventioneers were ready to accept—or at least not to deny—the important role played in the EU by the regions in general and by sub-national and regional Parliaments in particular, and to acknowledge the capacity of the EU to affect 42 CONV 523/03 31 January 2003, Summary of discussions in the Contact Group of Regional and Local Authorities. See also WG 1, WD 14 4 September 2002, CEMR position paper. 43 Keating notes 23, 39 above. 44 Eg at an early stage CONV 152/02 26 June 2002 (De Gucht, Duff and Dewael). 45 CONV 298/02 24 September 2002 (MacCormick). 46 See similarly CONV 321/02 7 October 2002 (Kiljunen). 47 CONV 525/03 31 January 2003 (MacCormick).

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The Challenge of the Regional Dimension in the European Union 23 the position of the regions by imposing legal obligations on them. At the plenary session devoted to the regional and local dimension that was held on 7 February 200348 and on other occasions too there was no shortage of rhetoric favourable to the regions’ importance. But formal concessions were few. Concrete involvement and institutional reform was precluded in favour of maintaining the bias of the Convention towards State and EU institutional actors that was already foreshadowed by the initial choices made about its composition. The regions gained little at the Convention. It almost goes without adding that the door remained firmly shut in their faces once the intergovernmental process assumed its grip in the Autumn of 2003. At the Convention some contributors actively supported the importance of securing input from sub-national and regional actors, but the precise nature of their proposals, once subjected to careful inspection, is illuminatingly cautious. For example Peter Hain submitted a paper entitled Europe and the Regions on behalf of the UK government and the devolved administrations in Scotland and Wales.49 It made glowing remarks on the value of a general perceived trend towards decentralisation in Europe, of which the UK is presented as a prime example. It celebrated the importance of securing input from the regions in the UK. The regions have an ‘important role to play in bridging the democratic deficit’ although the paper does not trouble to elaborate on the supposed nature of this deficit. It advocated the closer involvement of the regions in EU policy areas for which responsibility lies at regional level. The Hain paper goes so far as to promise that if an ex ante subsidiarity monitoring system involving national Parliaments is installed, the UK intends to provide that legislative proposals falling to be implemented by the devolved administrations will be referred in addition to the relevant institutions in Scotland, Wales and Northern Ireland. In his contribution to this collection Jeffery predicts that, under current political conditions, most members of the REGLEG grouping will be able to gain access to the monitoring system one way or another. However, in so far as the EU Treaty does not underpin such commitments, they endure only so long as local political will remains forthcoming. There is no constitutional guarantee outwith the national sphere. And this was very firmly the way the majority at the Convention wished to keep it. So, for example, Speroni made an express distinction between regions carrying merely organisational responsibilities within the Member States and regions equipped with their own legislative powers, arguing that the latter—but only the latter—should have access to decisionmaking processes at European level, in respect of matters for which they enjoy internal competence.50 But—the crucial question—is this to be achieved by EU rules or is it to be left to the regions to extract by using political muscle within their own internal processes? Speroni felt constrained to champion the second and deeply cautious option. 48 49 50

CONV 548/03 13 February 2003, ‘Summary report on the plenary session: 6 and 7 February 2003’. CONV526/03 3 February 2003 (Hain). CONV 328/02 8 October 2002 (Speroni).

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24 Stephen Weatherill True, the principle of local and regional self-government is mentioned in Article I–5 of the proposed constitutional text. This seems at first sight to represent an advance from the perspective of the regions. And in a sense it plainly is: it would lock respect for these fundamental State features into the Treaty text itself. It might conceivably be cited by regions against central State authorities where the latter seek to chisel away local patterns of autonomy. A less optimistic reading would treat it as constituting a confirmation of the principle that the EU is ‘region-blind’ (in the sense that it does nothing concrete to arrest domestic centralisation), and it is as misleading as ever in its pretence that the EU does not in practice significantly and commonly detrimentally affect the powers of regional tiers of governance in the Member States. Article I–9(3) enshrines the subsidiarity principle and, in contrast to the ‘region-blind’ version which has prevailed since Maastricht it provides not only for consideration of the Union/ State axis, but refers in addition to the achievement of objectives by the Member States ‘either at central level or at regional and local level’. This undoubtedly carries a potential for raising the profile of the regions in the formulation of policy at EU level. But the addition of the words ‘regional and local level’ was unaccompanied by any formal institutional monitoring system allowed to actors at regional and local level—other than the Committee of the Regions. Scepticism about the practical worth to the regions of this textual formulation can be nourished by appreciation that the new procedures proposed for the monitoring of the application of the principle of subsidiarity recognise a formal role for national parliaments but proposals to write in an explicitly guaranteed role for sub-national actors within a State were rejected. As Jeffery pertinently points out in his contribution, regions in Member States such as Germany and Austria have direct access to these monitoring procedures by virtue of their participation in the second chamber of the national Parliament. But many Member States do not provide for this level of direct regional participation. The model chosen by the Convention, and confirmed in June 2004, leaves it to national parliaments to draw in regional parliaments as they see fit. This is tracked and criticised in the contribution to this volume by Weatherill. Especially in States where there is (from time to time or permanently) hostility at central level to the aspirations of regional actors, this formulation will be deeply unsatisfying to the regions and sub-national actors. The objection is that even that advances made at the Convention by the regions were in fact confined to textual generosity left unsupported by institutional beef. The assumptions of ‘regional blindness’ run deep. A common trend was concern that a formal role at EU level allocated to the regions should be boxed up within the Committee of the Regions. The Hain paper, mentioned above, takes this approach. This was also a message transmitted by a Plenary Session devoted to regional and local issues held on 7 February 2003.51 The most 51 CONV 548/03 13 February 2003, ‘Summary report on the plenary session: 6 and 7 February 2003’.

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The Challenge of the Regional Dimension in the European Union 25 vivid illustration of this preference is found in the willingness of the Convention to allocate semi-privileged standing before the Court to the Committee of the Regions under Article III–270(3), so that it is able to bring actions against acts of the institutions for the purpose of protecting its prerogatives and against legislative acts for which the Constitution provides that it shall be consulted on the basis that the subsidiarity principle has been violated. But no such access is granted to any other regional actors. Despite more generous proposals advanced at the Convention52 and aired at the February 2003 plenary53 neither the regions with legislative powers nor any other actor is treated as deserving elevation above the status of a private party for the purposes of seeking judicial review of an act of an EU institution. The drive initiated by the REGLEG grouping, inter alia to secure enhanced standing before the Court and improved consultation rights on matters falling within the regions’ competence, was conspicuously not pursued through the Committee of the Regions, but rather in a separate arena to which only likeminded and more-or-less comparably powerful regions were admitted. The core of the REGLEG case for special treatment, explained in this collection by Jeffery, lies in the point that they typically carry direct responsibility for the implementation and application of EC rules that fall within their internallydefined sphere of competence, and that accordingly they are in this respect already analogous to Member States. In this book Nergelius points out that in the Draft Constitution some aspects of those demands have been met—not in favour of the go-it-alone REGLEG but instead in favour of the Committee of the Regions! This may offer the Committee of the Regions an exciting future54 but it may induce the regions with legislative powers to show even less interest in the Committee of the Regions and instead to choose to prioritise strategies that seek to press levers of influence within their own States. The Convention’s focus on the Committee of the Regions to the exclusion of other regional groupings stands as a vivid confirmation that the EU process is apt to capture actors in a homogenous and ‘EU-ised’ form, and that even a body as supposedly freethinking as the Convention shrinks from breaking open the seal of the unitary centralised State operating within the EU’s own formal institutional environment. It is, as Nergelius observes, likely to create new tensions between the regions with legislative powers and the Committee of the Regions in the future. In this vein it is also striking and troubling that in a contribution in July 2002 the Committee of the Regions insisted on the importance of bringing the EU close to its citizens by involving local and regional authorities in its decision-making processes while also asserting its own ‘exclusive legitimacy’ in this matter, rejecting any suggestion of its replacement by any (unnamed!) body which does

52 53 54

See further the contributions by S Weatherill and J Nergelius to this volume. CONV 548/03 note 51 above, p 11. See in optimistic vein the contribution of Nergelius to this volume.

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26 Stephen Weatherill not represent all local and regional authorities.55 A sub-text is provided by the reluctance of the regions lacking legislative powers to acquiesce in the grant of a special status at EU level to their more powerful brethren. This type of suspicion readily explains the limitations of seeking to craft a homogenous policy stance in the Committee of the Regions. A reason of sorts for adopting a cautious approach to direct regional involvement in the EU’s processes of law-making and judicial supervision lies in the risk of injecting delay and extra intransparency. This played some small role in the debates at the Convention—it is rather more visible in the European Parliament’s 2003 Napolitano Report, which was rather lukewarm in its vision of the role of the regions, and of the Committee of the Regions in particular. The principal explanation for the Convention’s reluctance to allow the regions any direct involvement in the EU’s modus operandi other than through the Committee of the Regions lies in the State and EU-centric political strain of thinking that dominated the proceedings. Endorsement of the value of Europe’s regional dimension was combined with a firm belief that it rests with States to make appropriate arrangements for projecting regional concerns on to the EU’s decision-making plane. In formal terms the EU should indeed remain fundamentally ‘region-blind’. Loughlin’s paper in this collection offers the conclusion that the regions fared poorly at the Convention but predicts that the current climate excludes the possibility that the regional question will now shrink from view. He expects that ‘mobilisation’ by actors representing particular regional concerns will be reinforced into the future, both via the Committee of the Regions and through horizontal patterns of collaboration. And, as is made particularly plain in the paper contributed by Jeffery, these European-level strategies co-exist with efforts to secure a louder regional voice in the preparation of Member State positions in Council. The text agreed by the Heads of State and government in June 2004, which adopts the pattern prepared by the Convention in matters pertaining to the regional dimension, is therefore to be seen as no more than a basis for continuing the debate—whether or not it is ultimately ratified by all 25 Member States, as is required before it can enter into force.

SHOULD THE EU’S REGIONAL BLINDNESS BE CURED?

Regional blindness: the current diagnosis This chapter began by offering depiction of a European Union ‘blind’ to the internal territorial and constitutional arrangements of its Member States. The 55 CONV 195/02 17 July 2002 (Zaplana Hernandez-Soro et al). Cf in similar vein CONV 359/02 22 October 2002 (Chabert—CoR observer); but for a softer tone see CONV 520/03 30 January 2003 (six observers of the CoR).

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The Challenge of the Regional Dimension in the European Union 27 reality is more complex, both when one examines the impact that EU law- and policy-making exerts on regions and sub-national actors and when one peers into the (still admittedly limited) recognition allowed to the regions in the EU law-making process. The extent to which the regions have been able to project their concerns into the shaping of ‘their’ Minister’s stance in Council varies markedly State by State, from the rather sophisticated models of involvement (on paper at least) found in Germany to the much spikier relationships found in Spain. At EU level regional participation is channelled through the Committee of the Regions, though it is plain that the stronger regions in particular are not content to confine their activities to this forum and have set up groupings such as that comprising the regions with legislative powers—the REGLEGs—that go formally unrecognised at EU level. Both at the Convention and in the Intergovernmental Conference that reached agreement on a new Treaty text in June 2004 the case for respect for Europe’s regional dimension was never actively contested but pressure for its deeper formal recognition and, in particular, for institutional devices for protecting and/or promoting regional autonomy was largely rebuffed in favour of models that preferred to focus on greater participation at EU level by national Parliaments and some modest adjustment to the status of the Committee of the Regions. The subsidiarity principle, which is especially apt to reflect the regional anxiety about ill-considered centralisation, remains politically important but little has been done to make explicit connection between regional actors and its practical application and monitoring. In painting the full picture one should not neglect growing informal incursion into ‘regional blindness’. It is proper that the Commission should be readier to consult with the regions, especially the REGLEG grouping, not least because they will be responsible for implementation of many adopted EC measures. After all, it is all very well having the State’s failure to implement EC Directives recorded by the European Court with no account being made in law for the internal constitutional problems that form the background to the default, but this does not get the job done. Prevention is better than (slow) cure, and it is preferable to attempt to identify blockages in advance and to seek to eliminate them. This is already admitted and encouraged in the Commission’s important 2001 White Paper on Governance.56 That agenda has attracted criticism for a perceived disinclination to pitch change towards the radical end of the spectrum—in particular, commentators have lamented the Commission’s perceived over-eager adherence to communautaire method.57 Be that as it may, in its treatment of the particular issue of the involvement of the regions in policy planning and implementation the White Paper is significant for its readiness to 56

Commission’s White Paper on Governance, COM (01) 428. Eg C Scott, ‘The Governance of the European Union: the Potential for Multi-Level Control’ (2002) 8 European Law Journal 59; D Wincott, ‘The Governance White Paper, the Commission and the Search for Legitimacy’, Ch 22 in A Arnull and D Wincott, Accountability and Legitimacy in the European Union (Oxford, OUP, 2002). 57

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28 Stephen Weatherill promote dialogue between associations of regional and local authorities and the Commission in a manner that suggests something more far-sighted than stubborn ‘regional blindness’. In December 2002, as part of the iterative process launched by the White Paper on Governance, the Commission issued a Communication geared towards the creation of a reinforced culture of dialogue and consultation, setting out general principles and minimum standards.58 In the same month a Commission Communication entitled A framework for target-based tripartite contracts and agreements between the Community, the States and regional and local authorities was published.59 This drew on the Governance White Paper’s perception that regional authorities play an increasing role in the framing and implementation of Community policies and picked up the suggestion advanced therein of target-based tripartite contracts, to be concluded between the Member States, designated regional authorities and the Commission. The contractual framework is designed to allow particular account to be taken of diverse regional expectations and capacity. The Commission confesses that it has triggered anxiety among some Member States lest the fundamental principle of State responsibility for carrying out Community policies be undermined, but the Commission believes resort to the tripartite model is justified where, in short, it provides added value, which may comprise simpler implementation, efficiency gains resulting from the close involvement of regional and local authorities, and speedier performance. Environmental policy and the administration of the structural funds offer appealing arenas for employment of this new governance tool. Public consultation about the more general place of dialogue with the regions has been further pursued. A Press Release in the Spring of 2003 took as its headline-catching title ‘European Commission to step up dialogue with associations of regional and local authorities’.60 A consultation period followed. The contributions may be inspected electronically.61 In December 2003 the Commission duly issued a Communication under the title Dialogue with associations of regional and local authorities on the formulation of European Union policy.62 Its core concern is to promote a more systematic and transparent process for consulting with national and European associations of regional and local authorities. The Commission pledges to bring the Union’s policy guidelines to the attention of the regional and local authorities so that the Commission can benefit from their input. It is acknowledged that regional and local authorities are often well placed to assess the coherence and effectiveness of policies that have a major impact on their terrain, such as regional development policy, transport, rural development and the environment. The Commission will be able to do its job more effectively if it relies more conscientiously on regional opinions and 58 59 60 61 62

COM (2002) 704, 11 December 2002. COM (2002) 709, 11 December 2002. IP/03/448 28 March 2003. http://europa.eu.int/comm/regional_policy/consultation/territorial_en.htm. COM (2003) 811, 19 December 2003.

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The Challenge of the Regional Dimension in the European Union 29 expertise. This practice will supplement, rather than replace, existing ad hoc patterns of consultation although it should improve on the existing model by virtue of its intended more systematic coverage. An important role for the Committee of the Regions in acting as an intermediary is identified; so too a role in selecting representative associations. The aspiration to bring the Committee of the Regions into closer contact with regional associations is plain, though it may be questioned whether that body possesses the necessary capacity. The suggestion is that the harder politics of the Convention and the subsequent Intergovernmental Conference were largely closed off to the regions and instead dominated by representatives of national Parliaments and the EU institutions. But softer forms of engagement in EU policy-formulation may be secured by regional participation in the discussions about superior implementation processes. In this sense new forms of governance in the EU may empower at least some regional actors. ‘Blindness’ has several possible cures. But they remain partial cures. The assertion that the European Union is ‘blind’ to the internal territorial and constitutional arrangements of its Member States is inadequate and superficial. But profound reticence to lever open the diverse patterns of governance that subsist within the 25 Member States remains embedded within the EU’s law and practice. The EU remains predominantly a matter for States and the EU’s own institutions. Future sightlines Portrayal of the treatment of the regions under EU law invites reflection on a fundamental and fascinating conundrum. One might argue that tackling any implications of EU membership for the distribution of political power internal to a State is a matter for that State alone to resolve. This, as explained, has been a powerful assumption which is reflected in the subsidiarity principle in Article 5(2) EC which is famously directed at the question whether competences are better exercised at European or State level, but it is silent about the question of intra-State constitutional arrangements. And the anxiety to preserve ‘blindness’ to the internal arrangements found in the Member States proved enduring at the Convention and beyond. And yet in so far as the repercussions within a State that demand that attention be paid to local patterns of power distribution are the direct result of the State’s membership of the EU itself, one could argue powerfully that far from letting well alone and treating the matter as a purely State concern the EU instead carries a responsibility to develop a policy directed at securing respect for regions and sub-national actors in the shaping and execution of its policies. In short, should the EU remain largely ‘blind’ to the reality that (most) States are not unitary and that regions—especially those with legislative competences—are evidently significantly affected by the EU law- and policy-making process and, in particular, the propensity of the EU to demand or at least induce centralisation of power? Good reasons insist that the temptation to cure regional blindness be addressed cautiously. A European Union which takes explicit account of

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30 Stephen Weatherill constitutional variation at sub-State level may prove wholly unworkable. Once one discards a unitary perspective the consequence is that each State’s status and treatment depends to some degree on its internal constitutional arrangements. There is probably an insuperable problem in driving explicit involvement rights enjoyed by the regions deep into the Treaty. One approaches a position of instability and potential inequality: State X has a region with legislative powers which is better off than State B which does not. To allow, say, the Länder a veto power at EU level over matters allocated to their competence by German law would be to damage severely the EU’s ability to do its job. And efficient problem-solving is one source of legitimacy for the EU. But that is not to say that more modest or even more subtle devices might not be unearthed—not least because this book exposes the notion of EU blindness to local arrangements as a deceptive notion. The EU does affect internal patterns, and it operates largely as a force for centralisation. This risks unbalancing hard-won political settlements in Europe. Already one must hope that the clarification of the nature of the EU’s competences proposed most constructively by the Convention and accepted in the June 2004 text will improve the quality of the debate about what should be done at European level and what should not. Ex ante and ex post monitoring and review is to be improved too, though here, as argued, the regions have been inappropriately and unfortunately excluded from the roles allocated to national Parliaments and to the Committee of the Regions. And, more generally, the Convention was unreceptive to regional claims for greater formal recognition of their place within the EU. More could be done. As mentioned, it would seem perilous to allow national constitutional law to supply the basis of a region’s challenge to an EU act. That is different from widening access to the region to challenge acts on established bases of EC law. One could envisage allowing standing to regions to challenge EU acts that touch matters for which they are competent according to the internal constitutional settlement. The permitted basis for such challenge could lie in the principle of conferral of powers and/or the subsidiarity principle, violation of which provide the propulsion for centralising trends that are most conspicuously hostile to regional autonomy, but conceivably for infraction of other general principles of EU law too. Even that idea is admittedly not cost-free. If the Court were invited to recognise internal features of the State as a basis for ruling on standing to challenge the existence and/or exercise of EU competence it would find itself ruling on matters of domestic constitutional law which may be hotly controversial. This could upset the carefully refined separation of functions established among national and supranational judiciaries in Europe. The Court has in this vein explicitly referred to its absence of any role in inquiring into internal division of powers in cases of infraction of Treaty obligations.63 But in so far as standing to challenge EU acts is concerned—as distinct from 63

Case C–95/97 Wallonian Region v Commission [1997] ECR I–1789.

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The Challenge of the Regional Dimension in the European Union 31 ruling on the merits of the argument whether local prerogatives have been infringed—it seems plausible that this step should be taken, in order to open up the possibility to refresh the type of arguments advanced as points of EC law in the special context of regional sensitivity. And, after all, allowing standing to regional and sub-State actors to challenge EU acts could plausibly be seen as the natural corollary of the obligations imposed directly by EU law on such entities. Opening up the possibility for sub-national Ministers to represent Member States in Council was an important innovation introduced by the Maastricht Treaty. Could a State’s Council votes be split where the matter is the subject of regional competence internally? This would mean that the block of votes allocated to a State would not necessarily be cast on an all or nothing basis. This was one of several intriguing ideas raised by Neil MacCormick64 but left unaddressed at the Convention. Whatever the merits of this particular proposal, it demonstrates that EU orthodoxy can be tweaked to reflect the regional dimension, thereby setting aside ‘blindness’ without loading the EU law-making process with cumbersome hindrances. There is room for more imaginative thinking than was on offer from the majority of members of the Convention. An improved and more sharply defined role for the Committee of the Regions is evidently desirable. At the Convention MacCormick cogently suggested its representation be based on regions not States and that special account be taken of cross-border regions, but that it not be seen as the superior form of representation of the regions in Europe. In this book Jeffery offers specific proposals designed to permit the Committee to work more efficiently and to reflect better the diverse regional interests at stake without surrendering to the lure of institutional fragmentation—although he confesses to scepticism that it can rise to this challenge. Indeed its heterogeneity post-enlargement is likely to place still further strain on its capacity to act effectively and authoritatively. The risk is that the Committee of the Regions will prove too unwieldy to meet the challenge, which will tip it ever more rapidly towards institutional irrelevance. Its modus vivendi with other regional bodies which are not formally recognised at EU level, most prominently the REGLEG, the regions with legislative powers, requires careful handling by all involved. Once the new constitutional Treaty enters into force it is plausible that the REGLEGs will be tempted to seek to exploit the formal gains made within the EU’s institutional architecture by the Committee of the Regions as well as to hammer away at the quest to maximise their influence within their own Member States. There are potential gains for all concerned provided the matter is approached constructively. Most fundamental are the advantages that flow from securing active regional participation in shaping the European project in preference to a regressive regional attitude to an EU perceived with sullen suspicion as something against which to erect barricades. This is not important for the regions alone. It is important for the health of the EU itself. 64

CONV 298/02 note 46 above.

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2 Regions and the European Union: Letting them In, and Leaving them Alone CHARLIE JEFFERY

INTRODUCTION

R

EGIONS HAVE BECOME deeply involved over the last 20 years in delivering and, to a lesser extent, formulating EU policies. That involvement has been accompanied by repeated attempts by some regional governments—in particular those now known as the ‘regions with legislative power’1—to engage in constitutive politics at the European level. They want the emerging European constitutional order to be sensitive not just to the balance between the Union and its constituent Member States but also to the regions which in some cases in turn constitute the Member States. Regional governments first managed in the 1991 Maastricht Treaty to lever open a modest place in the institutional architecture of the EU by breaking open the traditional duopoly of Member States and European institutions. From then on the EU has become more open to regional input. The Convention on the Future of Europe gave the regional dimension additional and perhaps unexpected impetus. Though regional issues were a low priority on the Convention agenda, the Constitutional Treaty which emerged has, potentially at least, carved out a bigger role for regions to play in the future Europe. The central question this paper will try to answer is whether regions will be able, in practice, to make use of that role.

1 The grouping of ‘regions with legislative power’, or REGLEG, began to take shape as a means of exchange between regional governments trying to influence the Nice Intergovernmental Conference. The grouping now has a rotating Presidency, and has issued periodic statements on EU issues since September 1990. For further information see www.regleg.org

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34 Charlie Jeffery

THE COMPETENCES PROBLEM

The reason why regions have mobilised in constitutive politics has to do with the competences they have to exercise according to domestic constitutions. The competences question is problematic for regions for five interlinked reasons: 1. The existing treaties and the new Constitutional Treaty—as agreed between Member State central governments—allocate competences between the EU and its Member States. 2. Many of Europe’s regional governments have significant legislative and administrative competences domestically, but have not normally been able to set the terms under which those competences are transferred to the European level. 3. Many of the competences designated as competences of the EU, or as shared by EU and Member States, absorb, regulate, and/or set rules for implementation in the fields of competence exercised by regions in the domestic arena. 4. The ‘compensation mechanisms’ through which regional governments can influence the regulation of their fields of competence by the EU are both limited and uneven, varying considerably between Member States. 5. The consequence is for many regions the erosion of their scope for autonomous decision-making and of their constitutional role within Member States. Though highlighted by the debates surrounding the Convention, this is not a new problem but one which has had political resonance for nearly two decades and one which in principle has existed since the foundation of the European Coal and Steel Community. Regions have always been marginalised by an integration process founded on the interplay of Member States and European institutions. — The first politically significant regional responses to this problem came with the Single European Act in the mid-1980s, when the German Länder tried to boost their capacity to control and shape the European policy of the German State government.2 — The Länder were joined by (and helped to organise) a wider coalition of regions in the debates on the Intergovernmental Conferences (IGCs) that led to the Maastricht Treaty of 1991, including other ‘strong’ regions from Belgium, Italy and Spain, but also bodies with a broader regional and local membership like the Assembly of European Regions. The Maastricht Treaty gave for the first time (limited) recognition at the EU level of the problems European integration causes for regions by establishing the Committee of the Regions, by opening up the possibility for regional ministers to join or lead Member State delegations in the Council of Ministers (subject to arrangements within Member States), and by introducing the principle of 2 Bundesrat, Bundesrat und Europäische Gemeinschaften Dokumente (Bonn, Bundesrat, 1988), pp 212–456.

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Regions and the European Union 35 subsidiarity to the Treaty (though not in a form that yet recognised regional concerns). — Regions have since mobilised both at the domestic and European levels (notably at subsequent IGCs) to win fuller recognition and compensation for the ‘problem’ European integration causes them. Indeed the current constitutional debate resulted in part from regional demands in the Nice IGC. Throughout the concern has been to retain (at least some) control of the spheres of competence allocated to regions under domestic law.3

RESPONSES: ‘LET US IN!’ AND ‘LEAVE US ALONE!’

Regions have pursued a mix of strategies for doing so. Following Ivo Duchacek and his work on comparing federal systems,4 these strategies might be styled as (a) ‘let us in!’ and (b) ‘leave us alone!’. ‘Let us in’ strategies are about staking a claim for a share in European decision-making alongside Member States and European institutions in those fields where European competence impacts on regional competence. ‘Leave us alone’ strategies are about preserving a core sphere of autonomous competence at the regional level not subject to European regulation. One of the more interesting aspects of the regional role in the EU has been how, and why, the balance of let us in and leave us alone strategies has changed since regions first began to take the European constitutional order seriously in the mid to late 1980s. This section reviews this changing balance before examining how it has played through and beyond the Convention debates.

‘Letting us in’ at the European level Regions can be ‘let in’ to European decision-making at both the Member State and EU levels. The idea of being ‘let in’ to Europe was initially presented as one of great ambition. Between the Single European Act and Maastricht the German Länder in particular set out a vision of a three-level union with regions as a ‘third’ level—below EU and Member States—endowed with an entrenched role in EU decision-making. Their fervour was missionary. One quote from the era: The Political Union is to be built up on three levels, which means, in consequence that a state level beneath the level of the nation-state must exist or be created in every member state.5 3 C Jeffery, ‘The Regions and Amsterdam: Whatever Happened to the Third Level?’, in P Lynch et al (eds), Reforming the European Union From Maastricht to Amsterdam (London, Longman, 2000). 4 I Duchacek, Comparative Federalism. The Territorial Dimension of Politics (New York, Holt, Rinehart and Winston, 1970). 5 Cited in H Kilper, R Lhotta, Föderalismus in der Bundesrepublik Deutschland (Opladen, Leske und Budrich, 1996), p 226.

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36 Charlie Jeffery This high ambition was not matched in practice. What emerged as the institutional manifestation of the ‘third’ level was the Committee of the Regions (CoR), established at Maastricht as a mixed regional/local body to advise on EU legislative proposals. The CoR has not established itself as an authoritative voice of the regions. There are four reasons for this:6 1. First, the CoR had an unclear founding purpose, with the Commission wanting on the ground expertise from within the Member States to implement regional policy, and the German Länder and some others an institution with a genuinely representative function. 2. Second, it has a very diverse membership of local and regional governments across the EU, in all their cultural and institutional diversity. This membership mix has not made for assertive decision-making, and the CoR has rarely produced crisp and forceful opinions. 3. Third, the CoR was given only a limited advisory role, and no power to make its opinions count. So the Council of Ministers and European Parliament never listen to it and the Commission arguably only pretends to. 4. And fourth, there were and are for many of its members other and better routes to get their ideas into European decision-making: through representative offices in Brussels, transnational networks and, above all, through the Member State, through domestic EU policy-making processes. These were not promising foundations for the CoR; for those who had envisaged it as a powerful ‘third level’ institution, the CoR was a profound disappointment.

‘Letting us in’ at the Member State level This sense of disappointment provides the linkage to the parallel and often alternative ‘let us in’ strategy focused on better access to EU policy processes within Member States. Member State central governments are in most accounts still the most powerful tier of authority in the EU. And all regions have some role in shaping EU policy priorities of Member States even if in some cases only informally, indirectly and at the margins.7 But some more powerful regions (or ‘constitutional’ or ‘legislative’ regions, as they have become known) were ‘let in’ during the 1990s to a much fuller role in formulating Member State policy, typically as a quid pro quo for ratifying EU treaty changes (or in Austria the terms of accession to the EU). In Belgium,8 6 C Jeffery, ‘Social and Regional Interests: ESC and the Committee of the Regions’, in J Peterson and M Shackleton (eds), The Institutions of the European Union (Oxford, Oxford University Press, 2002). 7 Cf G Marks et al, ‘Competencies, Cracks and Conflicts: Regional Mobilization in the European Union’, in G Marks, F Scharpf, P Schmitter, W Streeck (eds), Governance in the European Union (London, Sage, 1996), pp 58–9. 8 B Kerremans and J Beyers, ‘The Belgian Sub-National Entities in the European Union: Second or Third Level Players?’ (1996) 6 Regional and Federal Studies 41.

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Regions and the European Union 37 Germany9 and Austria10 regions won constitutional rights of access to ‘Europe’, including the right to set their Member State’s position in (at least some of) the fields of competence for which they are responsible domestically, including the right to speak as part of the Member State delegation in the Council of Ministers, and rights of input into preparing Member State positions for and at IGCs. The result has been very extensively in Belgium, less in Germany and least in Austria a sharing between central and regional governments of the right to set Member State EU policy priorities. In other states, notably in the UK,11 Italy12 and Spain,13 regions have won less entrenched and more informal roles in shaping Member State priorities. In all of these cases, even those where regions have less formalised roles, it is clear that regions can get more of what they want done through Member State channels than through the CoR.

Leave us alone The limitations of European-level strategies have also led to some modifications to what used to be a fairly unambiguously integrationist stance among at least some of the legislative regions, in particular the German Länder, which still act as opinion leaders in the field. In Germany, and with some echoes in Austria14 and Belgium,15 there is now increasingly a conscious calculation of the costs and benefits of integration which has led to a growing focus on preserving regional autonomy against further transfers of sovereignty.16 A seminal contribution in this respect was made by the then MinisterPresident of North Rhine-Westphalia, Wolfgang Clement, in a speech at the Humboldt University, Berlin, in February 2001 entitled, in loose translation, ‘A Creative Europe—not a Bureaucratic Europe. The System of Competences of

9 C Jeffery, ‘Farewell the Third Level? The German Länder in the European Policy Process’ (1996) 6 Regional and Federal Studies 62. 10 M Morass, ‘Austria: The Case of a Federal Newcomer in European Union Politics’ (1996) 6 Regional and Federal Studies 54. 11 S Bulmer et al, British Devolution and European Policy-Making. Transforming Britain into Multi-Level Governance (Basingstoke, Palgrave Macmillan, 2002). 12 C Desideri and V Santantonio, ‘Building a Third Level in Europe: Prospects and Difficulties in Italy’ (1996) 6 Regional and Federal Studies 96. 13 T Börzel, States and Regions in the European Union. Institutional Adaptation in Germany and Spain (Cambridge, Cambridge University Press, 2002). 14 Eg Vorläufige Länderposition zur Regierungskonferenz 2003 über eine Europäische Verfassung, VST–3958/188, September 2003. 15 Eg K Lenaerts, ‘Preparation of the Flemish Position for the Intergovernmental Conference 2004’ (2003), report commissioned by the Ministry of the Flemish Community Administration External Policy. 16 C Jeffery, ‘The German Länder and Europe: From Milieu-Shaping to Territorial Politics’, in K Dyson, K Goetz (eds), Germany and Europe: The Politics of Constraint (Oxford, Oxford University Press/British Academy, 2003).

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38 Charlie Jeffery the European Union after Nice’.17 Clement’s speech was remarkable in a number of ways: — It was introduced by some ‘mood music’ on over-regulation by the European Commission that would not have looked out of place in speeches by UK Eurosceptics, with angry references to the Commission’s ‘energy-sapping and money-swallowing’ ‘bureaucratic excess’. — It introduced the idea of embedding three categories of competence in a future European constitution, organised by the ‘intensity of regulation’ by the EU level: 1 exclusive competences like EMU and external trade policy; 2 ‘framework’ competences which were to become ‘the rule’ in the future EU, but which would should be wielded with as little detailed regulation as possible, and leave as much discretion to the Member States as possible; and 3 complementary competences, where the Member States would make the ‘overwhelming proportion of operational decisions’, leaving the EU scope only in ‘certain, precisely defined partial areas’. Clement’s competence categories evidently crystallised wider concerns to clarify the limits of European competences, taking on a wider momentum so that what Clement originally proposed bears quite some resemblance to the three categories of competence defined in the Constitutional Treaty (though the definition in the Treaty is far less restrictive of EU competence than in Clement’s version). — Clement’s speech was also a masterpiece of agenda-setting which captured a wider concern on the parts of some regions to try to ring-fence their domestic competences as matters in which the EU may play no role. The broad thrust of what he proposed was taken up by other actors in the German debate, not just at regional level,18 but was also taken up in collective action in the group of ‘regions with legislative power’, known as ‘REGLEG’.19 REGLEG brings together regions with ‘their own government and parliament’ in Austria, Belgium, Germany, Italy, Spain, the UK, plus island regions from Portugal and Finland. Their first summit was in Barcelona in November 2000

17 Wolfgang Clement, ‘Europa gestalten, nicht verwalten. Die Kompetenzordnung der Europäischen Union nach Nizza’, speech in the series Forum Constitutionis Europae, WalterHallstein-Institut für Europäisches Verfassungsrecht, 12 February 2001, http://www.whi-berlin.de/. 18 Bundesrat, Entschliessung des Bundesrates zur Kompetenzabgrenzung im Rahmen der Reformdiskussion zur Zukunft der Europäischen Union, Drucksache 1081/01 (Beschluss), 20 December 2001. 19 Political Declaration by the Constitutional Regions of Bavaria, Catalonia, North Rhine Westphalia, Salzburg, Scotland, Wallonia and Flanders, 28 May 2001, available at www.regleg.org/default.asp in the ‘Documents’ section under ‘General Info’.

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Regions and the European Union 39 and they have had annual summits since, with the 2004 summit held in Edinburgh. Their central concerns are:20 — for a clearer allocation of competences in the EU so that the limits of European integration can be marked out and controlled more effectively by and within Member States — for recognition of the particular status of REGLEG regions as significant law-making bodies distinct from other regional and local authorities (ie distinct from the rest of the members of the CoR) — for the formalisation of their right of access to the Council of Ministers in the Treaty rather than being regulated by arrangements within the Member State — for direct access of any REGLEG region to the Court of Justice in cases where it feels the principle of subsidiarity has been infringed — for better access to Commission thinking at the pre-legislative stage of decision-making when the broad lines of policy are set, in order to ward off the possibility of over-intrusive regulation.

REGIONS AND THE CONSTITUTIONAL DEBATE AT THE CONVENTION AND BEYOND

There has, in sum, been a significant shift in regional contributions to the constitutive debate over the last 15 years. The idea of collective regional mobilisation across the whole of the EU has been downgraded as the CoR proved to be an ineffective forum for what became the REGLEG regions. That is not to say of course that the CoR is necessarily felt to be ineffective by all its members; for many local governments in particular it provides a level of access to EU decision-making not available in the member states. But for the REGLEG regions two more potent alternatives have come to the fore: (a) to work through and in partnership with Member State central governments; and (b) to seek special recognition for their character as law-making bodies.

The regions at the Convention How did all this play into the constitutional debate? In formal terms the Convention itself barely recognised the regional dimension to the constitutive politics of the EU. There were one or two regional members who got there by wearing non-regional hats. And the CoR sent six observers, but these won the right to speak only rarely. The Convention Praesidium refused to establish a working group on regions, instead having a so-called ‘contact group’ which did

20 See successive declarations from summits at Brussels (2000), Barcelona (2000), Liege (2001), Florence (2002) all at www.regleg.org/default.asp in the ‘Documents’ section under ‘General Info’.

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40 Charlie Jeffery not feed formally into Convention debates. There was just one plenary debate on the regional question. The main contributions to the debate came from the REGLEG regions— through their periodic ‘declarations’ and through more informal lobbying—on the lines set out above, and by the CoR through a series of formal opinions and the input of its observers. There was much overlap between REGLEG and CoR positions, with each making efforts to support the other, but each having clear differences of emphasis: the REGLEG regions on their special needs and the rights they claim flow from them; and the CoR on maintaining itself as the corporate interlocutor for all regional and local authorities, including REGLEG regions, vis-à-vis the other European institutions. What finally emerged from the Convention and then also made it through the Intergovernmental Conference which signed off the Constitutional Treaty in June 2004 was on paper at least quite significant for the regional level. The following are the main changes: — The clarification of the different types of Union competence on the lines set out by Clement (Article I–11) and of the principle of conferral (ie that the Union can only act where there is specific authorisation in the Constitution— Article I–9). These are of course issues which define the relationship between Union and Member State. However, their place on the Convention agenda owed much to the pressure of the German Länder on the German State government at Nice. Limiting the reach of EU competence vis-à-vis the Member State implicitly limits the reach of the EU vis-à-vis the competence of regions—especially those with legislative powers—within the Member States. Competences and conferral are as much a regional as a national issue. — The recognition of regional and local governments as some of the ‘fundamental structures’ expressing national identity, which the Union must respect (Article I–5). — Recognition of the value of cultural and linguistic diversity (which build the mainstays of regional identities in a number of Member States) (Article I–3). — Recognition of the principle of territorial cohesion as an object of the solidarity expressed by membership of the Union (Article I–3). — And, from the regional perspective, a much more satisfactory understanding and policing of the principle of subsidiarity (Article I–9 and the Protocol on the Application of the Principles of Subsidiarity and Proportionality). The new provisions on subsidiarity are the key successes for regions at the Convention. They promise to give regions more teeth in monitoring and restricting what the Commission does—by implication—by ensuring that the Commission takes on board their concerns more systematically than before. The main points are: — The principle of subsidiarity refers explicitly to the regional and local levels for the first time in the main treaty text.

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Regions and the European Union 41 — The Commission must ‘take into account the regional and local dimension’ under its obligation to ‘consult widely’ before proposing legislation. What this will mean in practice emerges from developments following the Commission’s Governance White Paper: the CoR will have the job of organising regular forums through which the Commission will be obliged to consult associations of regional or local governments.21 — The CoR also wins the right for the first time to bring actions before the European Court of Justice if it feels the principle of subsidiarity has been infringed in any of the fields on which it has to be consulted; the CoR can also go to the Court if it feels it has not been duly consulted by Commission, Council or Parliament. — Some regions can also claim a role in policing the subsidiarity principle through the new ‘early warning system’ on subsidiarity devised for national parliaments.

The Regions and the early warning system This additional access route of the early warning system (EWS) is especially interesting. The EWS gives national parliaments early sight of Commission legislative proposals and allows them to give reasoned opinions if they feel the proposal does not comply with the principle of subsidiarity. If a third of national parliaments raise concerns, the Commission has to think again, and if the parliaments are not satisfied with the Commission’s re-thinking, they can ultimately take the issue to the European Court. In two ways this process is open to regions. First, the second chambers of some national parliaments are chambers of regions (Austria, Germany) and the EWS applies equally to first and second chambers. Second, following a surprise initiative introduced to the Convention by the UK government, national parliaments may also decide to include regional parliaments in the early warning process.22 The UK government is certainly committed to doing this, and equivalent arrangements are under preliminary discussion in Austria, Belgium and Germany, and might also emerge in Italy. In other words, most of the REGLEG regions in one way or another will have access to the EWS. The EWS route is interesting because it opens up a choice for the REGLEG regions: will they pursue subsidiarity concerns through the CoR or through the Member State route of national parliaments? The discussion returns to this strategic choice below.

21 C Jeffery, ‘Regions, Governance and the Future of Europe’, unpublished report written for the Committee of the Regions, 2003. 22 P Hain, Europe and the Regions, CONV 526/03, 2003.

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42 Charlie Jeffery What the Convention did not do The Convention did not recognise all the demands made by regional actors. Though the CoR was given more powers it was not, as it had demanded, listed among the EU’s full institutions (and hence upgraded from its current status, like the Economic and Social Committee, as an advisory body). Nor was the policy scope of the CoR’s advisory role significantly widened in Part III of the Constitution. There was also little support for entrenching regional access to the Council of Ministers in the Constitution, and this will remain a possibility regulated by domestic law and not generalised across the Union. Consequently, even more ambitious proposals like those of the Belgian regions (to split votes in the Council between national and regional governments)23 or of the Scottish Parliament (to establish a ‘Regional Affairs Council’ consisting solely of regional ministers)24 had no chance of further consideration. These Belgian and Scottish proposals were radical versions of a more general demand by the REGLEG regions which was not met: to recognise a special constitutional status for legislative regions. The REGLEG regions wanted recognition of the law-making role that distinguishes them from other regions and local authorities and gives them a qualitatively different relationship to their citizens. Their aim was to use special status (a) to argue for a fuller role in shaping EU laws alongside the Member States and EU institutions and (b) to establish clearer barriers against the transfer of their own powers to the European level, for example through direct access for legislative regions to the European Court. The reason that the REGLEG grouping argued so strongly for special status can be traced back to the CoR. Its view is that the CoR, which provides collective representation for all regional and local governments in the EU however extensive or narrow their domestic roles, is incapable of meeting their concerns:25 The constitutional regions are not satisfied with the current institutional framework in which the CoR is the body representing the interests of the local and regional authorities. The constitutional regions have reservations whether the CoR in its current shape and institutional status can meet the needs and wishes of the regions.26

OUTLOOK

The failure to get special status and these concerns about the CoR create a problem for the REGLEG regions given the outcome of the Convention: the major gains on subsidiarity—pre-legislative consultation and direct access to the 23

Lenaerts, ‘Preparation of the Flemish Position’, note 15 above. European Committee of the Scottish Parliament, Report on the Future of Europe, 6th Report 2002, SP Paper 705. 25 Cf T Wiedmann, ‘Abscheid der Regionen vom AdR—Der Ausschuss der Regionen vor der Zerreissprobe’, Jahrbuch des Föderalismus 2002 (Baden-Baden, Nomos, 2002). 26 Political Declaration by the Constitutional Regions, 2001. 24

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Regions and the European Union 43 European Court—have been awarded corporately to the CoR, not to individual regions or specific groups of regions. This also creates a problem for the CoR. It is the big regional winner. It has been ‘let in’ more to EU-level decision-making. Access to the European Court and to pre-legislative consultation are important gains. The question is whether it can make effective use of those gains by keeping its most powerful members, the REGLEG regions on board in using them.

The temptations of the national route That question is nuanced by the fact that most of the REGLEG regions will have an alternative route for pursuing their concerns: the national route through the Member State. There has been a clear pattern since the Single European Act of regions using European-level debates to lever out concessions in Member State decision-making processes on Europe. The extensive rights that the German, Belgian and Austrian regions have to shape Member State positions on issues they are responsible for domestically have all been trade-offs for regional support ‘in Europe’.27 This kind of trade-off can be anticipated again as the price for regional support for ratification of the constitution (at least in Austria, Belgium and Germany). There are signs that thinking on these lines is already in train in Germany.28 There may for example be mileage for the legislative regions in looking for ways to work through Member State delegations to get fuller consultation at the pre-legislative stage of EU policy-making; in most cases (with the partial exception of Germany)29 this kind of cooperative national-regional approach to representing the Member State in Brussels works well. Why not work further through these channels rather than trying to get consensus among CoR members, most of which have different kinds of concern? There may also be a strong temptation to jump on the national parliaments’ bandwagon regarding the early warning system. Here, though, the REGLEG regions need to be cautious. It would be unwise for legislative regions to expect too much from the national channel on subsidiarity matters. It will be difficult for any distinctly regional voice to be heard on an EU-wide scale in this way. The Austrian and German Länder will collectively each have half the vote of their national parliaments. Elsewhere regional input into national parliament 27 C Jeffery, ‘Sub-National Mobilisation and European Integration: Does it Make any Difference?’ (2000) 38 Journal of Common Market Studies 1. 28 Among the ideas mooted has been a tightening of the binding effect of Länder opinions on the federal government in EU-level negotiations. Perhaps more significant is a legal opinion commissioned by Baden-Württemberg on the early warning system which argues that each Land should have the right to bring forward objections to EU legislative proposals on subsidiarity grounds into the early warning system mechanism which will be set up in Germany. 29 In Austria, Belgium and the UK, there is a sense of collegiality in regional-national negotiations on Europe which is largely absent in Germany. See C Jeffery, ‘Artikel 23 im internationalen Vergleich’, unpublished report commissioned by the Bertelsmann-Stiftung.

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44 Charlie Jeffery positions on subsidiarity will be through consultation and will be more indirect and diffuse. It is quite difficult to see the necessary total of one-third of all national parliaments coming together in this way on some matter of particular concern to regions. National parliaments will most likely prove too diverse a platform for the particular interests of legislative regions to be heard and represented with sufficient focus and force.

Working through the CoR Looking beyond its track record for a moment, the CoR may offer rather better prospects for the legislative regions, especially if it develops a reliable routine of scrutiny on subsidiarity. Indeed, although the CoR is not formally part of the EWS, there is nothing to stop it from issuing opinions as if it were. Because the CoR will have an ex post right of appeal to the European Court on subsidiarity matters, the Commission should have an interest in hearing CoR concerns at an early stage precisely to avoid the possibility of European Court action later. But for all this to work the CoR needs to look hard at itself and how it does its business. It needs to recognise why it has proved an ineffective platform for legislative regions, for it surely must have an interest in keeping what are by definition its most powerful members on board. So what needs to be done? There are three fundamental points: The first is about focus. The CoR produces too many opinions, at too low a common denominator of compromise across too many issues, and they have as a result too little impact. That must not be the case in a subsidiarity monitoring process which could end up in appeals to the European Court. The stakes will be high, and clarity and focus will be vital. Second, it needs to rethink its structures of opinion-formation. Views are organised in the CoR by national delegation and political party. It would make sense to organise also by type of regional/local government. Proposals in this direction were made by local government groupings at the CoR’s launch and have periodically been made since by legislative regions.30 Those proposals have too often got side-tracked into debates about splitting the CoR into two ‘chambers’. That would clearly be an over-elaboration. But why not a secretariat for REGLEG, why not a secretariat, say, for Eurocities? Or for administrative regions? Such groupings could better capture cross-national differences of function of regional and local governments in EU decision-making: local authorities involved in detailed implementation issues; administrative regions with a more strategic oversight of implementation; and legislative regions with a claim to fuller input into making those EU laws which impact on their domestic legislative competences. Each grouping, because of these differences in function, has different kinds of concern on subsidiarity. Working through functional 30

Jeffery, ‘Social and Regional Interests’ note 6 above, p 342.

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Regions and the European Union 45 groupings on subsidiarity—and indeed on other matters—may be the best way to get across a sense that the CoR really is capable of serving the interests of all of its very diverse membership. Third and finally, the CoR needs to establish streamlined procedures for managing its new tasks in subsidiarity matters. It has to be in a position to act quickly and efficiently in gathering and concerting views, especially if it decides to act as if it were part of the EWS, with its six-week timescale. And it must have mechanisms in place which allow only well-grounded and carefully argued cases to be sent to the European Court. In neither respect would the CoR plenary be the appropriate body; but in both respects it would be important to work with the full authority of the plenary. So why not, with appropriate checks and balances, delegate the authority of the plenary to smaller formations? The German Bundesrat, for example, has a smaller ‘Europe Chamber’ which can act with the authority of the full Bundesrat if it needs to act with particular speed on EU matters.31 The CoR could do something similar. It has the power to establish its own standing orders and procedures. It should use that power to bring in procedures better adapted to its new and more challenging tasks.

CONCLUSION

What is the outlook? What will the greater recognition accorded to regions in the constitutional treaty add up to in practice? There is an opportunity to revive some of the optimism of the early 1990s when regions sought co-decisionmaking possibilities at the EU level, when they wanted to be ‘let in’ to a common, EU-level project. In order for that to happen the CoR needs to start thinking outside the box. It may be a diverse and at times unwieldy body, but it has become the main beneficiary of the broadening consensus that regions have to be more fully involved in EU decision-making. It has to be serious about what needs to be done to make that fuller involvement work and in particular to bring the REGLEG regions back in. Whether it has the strategic clarity to do that, given its inability to learn from its mistakes hitherto, has to be in doubt. A more realistic expectation would be that the main effect of the treaty changes will be to confirm the tendency for legislative regions to opt for the Member State channel. And that tendency is one which can box regions into a ‘leave us alone’ mentality, viewing European integration less as a common project and more as a problem to be held at bay.

31

As provided for in Article 53/3a of the German Basic Law.

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3 The Participation of Infra-State Entities in European Union Affairs in Spain: the Basque Case JOXERRAMON BENGOETXEA

INTRODUCTION

C

ONSTITUTIONS SET OUT, among other things, dreams and visions that citizens share as regards the organisation of a polity or a commonwealth: how they wish to be governed and control their rulers, how they believe binding decisions ought to be adopted, what values the commonwealth is to defend internally, and also externally in its relations with other entities, what minimum rights can never be transgressed even by the will of a majority, how justice is to be rendered, and so on. Complex states or organisations are made up not simply of citizens but, significantly, of citizens and the territorial entities of governance in which these citizens are constituted and which have different degrees of local, regional or national identities. Constitutions then also characteristically set out what the different member regions, member nations or member states want to do together, and how they want to do it, and what they want to do on their own. The Basque Country, or more precisely the Spanish Basque Country,1 through most of its political parties, had the opportunity to participate in the constitutional process leading to the Spanish constitution of 1978. When the Spanish constitution was submitted to a referendum, the major Spanish parties (PSOE and the former UCD, but not so clearly AP, the predecessor of the present PP) campaigned for a yes vote whereas Basque parties advocated abstention (PNV) or outright rejection (HB), and only one third of the Basques voted yes to the Spanish constitution. The reason for this may have been the fact that Spain remained a unitary state. Whatever the case, a similar process to that which obtained in Bavaria, which had originally rejected the German federal constitution but later made a declaration of allegiance, may arguably have taken place with the approval of the 1 For Basque history and background see M Kurlansky, The Basque History of the World (New York, Walker Publishing Company, 1999).

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48 Joxerramon Bengoetxea Basque statute of autonomy, which follows from the Spanish constitution and was approved by a majority of the Basques, who interpreted it as a form of covenant with the Spanish State.2 The accession of Spain to the European Communities (EC) in 1986 had drastic consequences for the competences which the Basque Autonomous Community (BAC) had assumed under the constitution and the autonomy statute. The transfer to Brussels somehow pre-empted or dispossessed the BAC of its recently assumed powers. Other autonomous communities underwent a similar preemptive process. This process was carried out without compensation regarding the mechanisms by which the State government would involve the autonomous communities (AC) in supranational decision-making processes affecting their competences. The picture which came out of the Spanish constitution as regards the division of competences was transformed, and very few commentators noticed this transfiguration. A similar process might be observed within the Convention on the Future of Europe during 2002 and 20033 and this is cause for concern: there is a feeling that crucial decisions on the structure of Europe, and also on the respective role of Spain and its regions within this new Europe, are once again being discussed and adopted with no real consultation of one of the main stakeholders concerned, the regions that make up Spain. The constitutional debate is livelier than ever now as a result of this process and of the proposal for a new political status launched by the Basque president (26 September 2002) and submitted one year later to the Basque Parliament as a bill for a new autonomy statute for the Basque Country. In the present article, I shall begin by briefly explaining the Spanish constitutional compound and context, the ‘semi-federal’ nature of Spain, the provisions for accession to the European Communities, and the impact of this accession on the distribution of competences. Thereafter I shall set out the existing practice as regards participation of the ACs in the EU, as regards the elaboration of EU law and policy, and the application and implementation of EU law and policies. I shall also examine the participation in the consultation process, and especially the Committee of the Regions. The claims for reforms made by most of the ACs will be reported in this context. The next part examines the particularities of the Basque case, especially the economic regime, the strong cleavages in Basque politics, the recent proposal of the Basque president, the ambivalent nature of the claims as regards participation in Europe, and the success story of interregional 2 The interpretation of historic rights and the Basque provinces as fragments of state is clearly set out in Miguel Herrero de Miñon, Derechos Históricos y Constitución (Madrid, Taurus, 1998). 3 Surprisingly, the Convention did not set up a group on regions and regional participation, although it did have a group on subsidiarity and one on national parliaments. Only one plenary session was devoted to the regional question. It is also important to remember that national parliaments had their representatives in the Convention and they could choose to have a representation of the federal chamber, but in the case of Spain there was no representation of the regional parliaments. The Committee of the Regions had only an observer status at the Convention, although the initial intention of the Belgian presidency toward the Laeken declaration was to give them a full participatory status.

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Participation of Infra-State Entities in European Union Affairs in Spain 49 cooperation in formal or informal networks of regional cooperation. Important theoretical issues arise from this situation as regards the conception of the State, the so-called asymmetric federalism or variable geometry and its impact on the distribution of competences.

THE SPANISH CONSTITUTIONAL CONTEXT

The quasi-federal nature of Spain According to Article 2, the Spanish constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, and recognises and guarantees the right to autonomy of the nationalities and regions which make it up and the solidarity among all of them. Following Kottman,4 Andrea Ross and Mayte Salvador have called Spain a regionalised unitary state,5 which, to my mind, is a fair categorisation. On top of the territorial division of the State into 50 provinces, the constitution provides for the possibility of setting up autonomous communities (ACs) which may be groups of provinces which share historical cultural links or single provinces with specific identity. The constitution does not mention how many ACs there may be, nor does it mention any particular region except for Navarre and the Basque Country, Ceuta and Melilla and the special nature of the Isles (Balearic and Canaries). The Basque Country and Navarre are mentioned in the additional provisions. Indeed, there is a special recognition of the historic nature of these regions and of their special powers, the ‘fueros’ which must be respected and may be updated according to the additional provision of both the constitution and the Basque statute of autonomy. There is a heated debate as to the legal nature of the ‘fueros’. For some they represent a sort of covenant between Spain and the Basque provinces, for others they are no more than historical leftovers of private law peculiarities challenging uniformity and equality between Spaniards. The fact is that the Basque provinces, including Navarre, have not only a distinct private law applicable in many territories, but also a special fiscal and financial regime, with full tax raising powers.6 According to the Spanish constitution, each AC will have a name, its own symbols, and the list of competences it assumes; and its Statute of Autonomy will be approved by the Congreso de los Diputados (Lower Chamber of the Spanish Parliament) and, in some cases, by referendum of the AC itself.7 The list 4

J Kottmann, ‘Europe and the regions’ (2001) 26 European Law Review 159. A Ross and M Salvador Crespo, ‘The Effect of Devolution on Implementation of EC law in Spain and the UK’ (2003) 28 European Law Review 210. 6 As a consequence, Spain does not have a single tax system but rather five, one for each of the Basque provinces and one for the rest of the Spanish territory. 7 Whereas the Basque Statute of Autonomy was approved by two thirds of the population, the Navarrese Statute was not submitted to a referendum. 5

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50 Joxerramon Bengoetxea of competences which the State (ie the central parliament and government) reserves for itself includes immigration (now partly shared at EU level), defence (to be shared at EU level in the future), the monetary system (Spain is part of the Eurozone), international relations (to be coordinated at a European level in the future). Those which may be assumed by the Autonomous Community are contained in the constitution (Articles 148 and 149). The AC hold exclusive legislative and executive competence for matters such as agriculture (now vested in the EC), urban planning, housing, forestry, the management of environmental protection, own language, sport and leisure, social welfare (but not pensions), health, and ports. The BAC has its own police alongside the Spanish police and its own exclusive fiscal regime. Those competences which an AC does not assume in its statute belong to the central State. In the present political map of Spain one finds seventeen ACs. Initially it might have been thought that only the historic nationalities (ie the Basque Country, including Navarre, Galicia and Catalonia, as Article 2 of the constitution calls them) would create ACs followed, perhaps, by Andalucía, and the Isles. But in the end, a combination of two factors—the momemtum created by the setting up of the historic nationalities and the reaction to extreme centralism under Franco in all the regions combined with the feeling amongst the ruling elite that the indivisible unity of Spain, which is a dogma stated in Article 2, would be better preserved by a division of the whole of Spain into ACs—led to the present political map. A bill presented in the early 1980s (LOAPA) on the basis of Article 150(3) of the constitution attempted to make uniform or to harmonise the process of autonomy and eliminate any possible asymmetry or variable geometry amongst the ACs, but this bill was declared unconstitutional by the Spanish Constitutional Court, to the relief of those historic nationalities which had assumed a higher threshold of autonomy and feared uniformity by means of severe cuts (judgment 76/1983). The Constitutional Court is the final arbiter of conflicts on competence. For a while, the Basque autonomous government has contested the legitimacy of the Court given that its judgments were considered to be systematically against the Basque interests8 and that only candidates approved by the major Spanish parties are appointed as judges. However, a positive aspect of the system is that the Court is not bound by a doctrine of precedent, which does not contribute to uniformity of competences, but does allow for the correction of decisions which may later be seen as excessively centripetal or centrifugal. The devolution of powers to the ACs was to be carried out by so-called processes of transfer of the financial, human and material resources of the central administration to the autonomous administration, and partly by 8 This criticism has increased in the light of the partisan statements of the former President of the Court (M Jiminez de Parga) who publicly questioned the status of ‘historic nationalities’ and some of the Court’s recent decisions concerning the banning of the political party which refuses to condemn ETA violence and the closure of two Basque newspapers on the grounds that they are part of the wider ETA network.

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Participation of Infra-State Entities in European Union Affairs in Spain 51 regrouping some of the powers vested in the provincial administrations. In the Basque Country these two processes of transfer of powers have been particularly important and quite slow. Both the Basque Autonomous Community and the State Government agree that the process of devolution or transfer of certain competences, powers or resources is not complete, although there is an ongoing debate as to what and how much exactly is to be transfered. This debate is particularly acute as regards scientific research, employment policies and the management of the social security system, and also as regards the personal and material resources of the administration of justice. Even if an AC has assumed certain competences in its statute of autonomy, if it does not have the material means to pursue such competences and if it does not have its own financial resources, it will hardly be able to operate. Since the BAC has certain competences assumed by the statute and has the financial means to implement them by its tax raising powers, it has chosen to start implementing its own policies in some areas—such as employment policy, research, and complementary pensions—without waiting for an agreement of the transfer of the material, financial and human resources from the central government. The ‘federal’ nature of Spain is a subject of some debate and extensive literature. There is an understanding that the system is only quasi-federal. It is not fully federal since there is no chamber of the ACs on the model of the United States Senate or the German Bundesrat; the territorial units represented in the Senate and the constituencies of the Congress are the provinces, which is a preconstitutional territorial division with important political functions. The presence of the central administration of the State in the ACs is very strong and is represented by delegations. While there is an element of variable geometry or multiple speed in the process of autonomy and in the list of assumed competences, this element is foreseen by the constitution itself, which is aware of the different autonomous sensibilities and distinguishes between historic and ordinary ACs. One of the crucial features of the Spanish system is that regional governments do not participate in State decision-making processes, reserved to the Congress, the Senate and the central government, and this unitary feature is very important when attempting to understand the attitude of the State government in relation to the participation of ACs in European Affairs.

The constitution and the European Communities The Spanish constitution does not contain a single reference to Europe or to the process of European integration. It only generally provides, in Article 93, that by means of an organic law authorisation may be established for the conclusion of Treaties which attribute powers to an international or supranational organisation or institution. This authorisation only indirectly involves the ACs through their limited presence in the Senate even if their competences are directly affected by the transfer of powers to the supranational organisation.

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52 Joxerramon Bengoetxea Foreign affairs are the exclusive competence of the central government and parliament (Articles 93 and 149–1–3 of the constitution) and it has been generally understood that EC matters are foreign affairs. The initial doctrine of the Constitutional Court confirmed this extreme view, which was harshly criticised by the literature as pre-empting the ACs of any competence they might have asssumed in their statutes of autonomy and which might then have been transferred to the EC. The Basque statute of autonomy provides in Article 20.3 that the BAC shall enforce treaties and agreements that affect its competences and that no international treaty or agreement may affect the distribution of competences unless a revision of this distribution is carried out according to the constitution. With hindsight this really seems wishful thinking. The Spanish constitution was amended, its only real amendment ever, in order to bring it into conformity with the Maastricht Treaty’s provisions on citizenship and the right of EU citizens to vote and stand in local elections.9 The Maastricht principle of subsidiarity has had no impact on the constitution, and the general understanding of the major parties is that the constitution should not be changed or amended, if possible, which has led to the text acquiring a sort of sacred status. The ruling PSOE, however, announced in 2004 that an amendment of the constitution could be envisaged in order to bring the Senate into line with the decentralised nature of the State.

The impact of accession on the distribution of competences The distribution of competences foreseen in the Spanish constitution and the Basque autonomy statute was operative by the beginning of the 1980s. Six years later Spain acceded to the European Communities, transfering important areas of sovereignty which had been devolved to the ACs. Many of the powers vested in the EC by the Member States fell fully or partly under regional competence. This had enormous consequences. The central government was co-deciding in Brussels on areas where the central State had devolved competences, thus preempting the internal transfer of powers to the ACs. The success and acceptability of the system and the respect for the distribution of competences foreseen in the constitution and the autonomy statutes (the so-called constitutionality compound) would depend on the attitude of the central government as regards the possibility for the ACs to participate in that process of decision-making and the mechanisms for the defence of devolved competences by the ACs, which is a mixed matter of European Community law, constitutional law and European, State and regional politics. On the other hand, from the point of view of EC law, there is no specific impact or requirement imposed on the State as regards its regions. EC law 9

See now Arts 17–22 EC.

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Participation of Infra-State Entities in European Union Affairs in Spain 53 respects the institutional and constitutional autonomy of the Member State to organise internally as it wishes. It is respectful of, and even blind to, the internal organisation of the Member State. On the other hand a Member State cannot plead its own complex internal distribution of powers as a defence for belated implementation or any other possible breach of an EC obligation. It is blind in this sense as well and Member State liability will follow from an infringement originating in any intra-State public entity.10

THE PARTICIPATION OF THE AUTONOMOUS COMMUNITIES IN THE EC

Modes of participation of the Autonomous Communities in the EC: ‘upwards participation’ In this section I intend to give a brief report of the state of play as regards participation, almost a cahier des charges. It is brief, but necessary in order to understand the issues and the claims of the Autonomous Communities (ACs). The sector conferences A law of 1992, Ley de Régimen Jurídico de las Administraciones Públicas y Procedimiento Administrativo Común, provides that all administrations must cooperate with and assist each other for those acts outwith their strict competences. The ‘sector conferences’ were then established for this purpose, among them the conference on European Affairs. The central government convokes the conference and sets the agenda, but the conference can only give advisory opinions. In 1992 an intergovernmental committee on EC affairs was set up with top officials from the State and the ACs, with the State representatives holding half the seats and often counting on the support of those ACs controlled by the same party as that in power in Madrid to impose the views of the central government. As regards shared competences, the central government tries to reach a common position with the ACs. As regards exclusive regional competences, if the ACs reach an opinion, the State government is to defend this view, but this has only happened once. Initially the BAC did not join this system of sector conferences. Instead, a bilateral agreement between the Basque and Spanish governments was signed and it established bilateral committees for European affairs in 1995. Catalonia also signed one in 1998. But the operation of these institutions was brought to an end under the government of the Popular Party. The return to power of the Socialists after the 2004 General Election has brought about some important 10 See Case 103/88 Fratelli Costanzo SpA v Comune di Milano [1989] ECR 1839 and Case C–431/92 Commission v Germany (Grosskrotzenburg power station) [1995] ECR I–2189.

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54 Joxerramon Bengoetxea changes: the first Conference of Presidents of the ACs was held in October 2004. According to Ross and Salvador, the continued preference of Catalonia and the Basque Country for bilateral as opposed to multilateral solutions serves to emphasise the inherent distrust between the centre and the ACs (and even among ACs) and makes working together very difficult.11 In 1997, Law 2/97 formally institutionalised the sector conference for European Affairs. The Permanent Representation in Brussels and the delegations of the ACs The State has regulated its Permanent Representation in Brussels through a Royal Decree, the Real Decreto 260/1986, according to which it shall be the organ which manages and represents Spain before the EC. A special advisor appointed by the central government informs the autonomous communities of some issues negotiated at the Council. Most ACs now have their own delegation in Brussels. The BAC has had one since 1988, which it established by a decree. Its validity was challenged by the central government before the Constitutional Court, alleging that there could be no relation whatsoever between the Basque public institutions and the European institutions. By judgment 165/1994 of 26 May, the Constitutional Court admitted that EC law is internal law and affects the competences of the ACs. Since 1996, the initial agency with a semi-private status became an official delegation of the BAC, but the central government has failed to notify the Belgian government of the fact that it is an official delegation, so the Belgian government considers it as a private office. The central government also refuses the participation of these offices in the Spanish permanent representation through delegates, and it refuses any participation of the ACs in the formation of the will of the State government to exercise the 27 votes that Spain has in the Council at present. The new Spanish government, formed in April 2004, agreed in December 2004, with the ACs, that two experts from the regional administrations of the ACs will be integrated in the Spanish permanent representation in Brussels. The agreement also forsees participation of the ACs, together with the Central government, in four Council formations—employment, social policy and health; education, training and culture; agriculture and fisheries; and environment. In 1996 the Spanish permanent representation created the commissioner for the ACs. This post is responsible for liaising with the ACs and for informing them of the Council agenda and for passing on the documents. Since 1996 the Basque government receives from the Spanish government information on Council documents. Of a total 276 thematic acronyms into which the work of the Council is divided, the BAC is competent in 82 of them, yet it only receives documents and information on 49, and when there is any element of confidentaility 11

Note 5 above p 228.

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Participation of Infra-State Entities in European Union Affairs in Spain 55 in the document, it receives nothing at all. In contrast with other European regions, access to the Council intranet by the ACs is not allowed by the Spanish government, not even using a special encoding software. Comitology In 1997 the ACs started to participate in 55 committees of the Commission, most of them of a technical nature. Participation before the Court of Justice An indirect mode of participation in the formation of EC law is through the judicial review of EC acts. In 1997 an agreement was reached between the ACs and the central government on participation of the ACs in proceedings before the European Court of Justice. This is of course to an extent an orthodox issue of EC law. ACs cannot contest the validity of EC law instruments before the Court unless they are decisions addressed to them or concerning them. This does seem awkward considering that the ACs legislate in areas of EC interest, and that their competences are normally affected by EU legislation. They can only intervene as addressees of those norms (decisions, normally on State aid) and with a status equal to that of private applicants, according to the restrictive interpretation of Article 230(4) EC.12 The issue of regional standing has become particularly contentious in the case of the Basque economic regime. As was explained above, the Basque provinces have competence in fiscal and tax matters. Some of the provincial tax laws granting tax exemptions (‘tax holidays’) to new companies established in those provinces have been either declared to be State aid incompatible with the Treaty (in Commission decisions following complaints by neighbouring ACs), or challenged internally before the Supreme Court of Justice of the BAC.13 One of the claims of invalidity was incompatibility with EC law (specifically, the provisions dealing with State aid and freedom of establishment). The action was brought by the Spanish government legal service (abogacía del Estado) at the instigation of neighbouring ACs which felt prejudiced by the measures. A reference was brought to Luxembourg for a preliminary ruling. The Spanish legal service which had attacked the laws internally now had to intervene for Spain in defence of the laws! In a rather jacobine tone, the Advocate General gave an opinion considering them to be State aid because they were regional and 12 A thorough analysis of the subject is provided Maite Zelaia, doctoral thesis at the University of the Basque Country, publication forthcoming. See also M Sobrido Prieto, Las Comunidades Autónomas ante el Tribunal de Justicia y el Tribunal de Primera Instancia de las Comunidades Europeas (Valencia, Tirant, 2003). 13 Justice is a central State competence in Spain and there is only devolution on material resources of the administration of justice and theoretically, the management of the prisons, which has only been transferred in Catalonia.

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56 Joxerramon Bengoetxea therefore not a general scheme of taxation.14 An agreement was struck between the Spanish Government and the provincial governments to withdraw the action which was then removed from the Luxembourg registry. The case gives an indication of the kind of negative consequences that follow when the principle of loyal cooperation (Bundestreue) is not followed by the different organs of the State. The Spanish Parliament The Spanish Senate has a special General Commission of the ACs (Article 55 and 56 of its Rules of Procedure) which until now has only been given a role of information on EU issues. This Commission could potentially play a much more important role. In 1998 the plenary of the Congreso de los diputados passed a petition requesting the Spanish State to devise mechanisms to allow regional participation in the Council and in 1999 the ACs adopted a common position on the basic formulae for this participation. Nothing has been done, and after the Popular Party obtained an absolute majority these claims were neglected. As yet the situation has not changed since the return to power of the Socialists in 2004. To sum up, the State government has consistently refused participation of the ACs in the EC. It is not really a question of political parties: both the Popular Party and the Socialist Party have rejected it when they have held power. All they have allowed for is consultation, at the discretion of the State government and piecemeal information on non-confidential documents. The reform of the Senate which the new Spanish government and the PSOE wish to negotiate could be an excellent opportunity for allowing participation of the ACs in circumstances where national parliaments will become involved in EU issues. Committee of the Regions This organ, which has purely advisory functions in some areas of EU law and policy and which includes also representatives of local authorities, was created by the Maastricht Treay, largely to appease the increasing demands from intrastate entities to participate in the process of European integration, given that they felt alienated from it by the Member State governments and the slight mutation of the Community system towards inter-governmentalism. The ACs have a representative each in the Committee. In the Basque case it is the Basque President’s high commissioner who normally attends the meetings. But the Committee, surprisingly, is organised by groupings of political parties and of States, which quite contradicts the reason for its creation. ACs have an opportunity to suggest amendments to the reports of the Committee, but those reports 14 Joined Cases C–400/97, C–401/97 and C–402/97 Administración del Estado v Juntas Generales de Guipúzcoa, Opinión delivered on 1 July 1999.

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Participation of Infra-State Entities in European Union Affairs in Spain 57 are not binding, and for the moment the institutions do not even have to provide reasons for decisions not to follow the advisory opinion, although this may change if the draft constitution of the Convention is adopted. The Economic and Social Committee also has a representative from the BAC—a representative of the Basque Trade Unions (ELA). Basque national unions represent more than 60 per cent of the Basque workforce. Spanish Unions only have 35 per cent of the union representatives in the Basque Country. European Parliament The constituency to elect MEPs in Spain is a single State constituency, which means that regional parties have to stand and compete at the state level, where they seek coalitions with other regionalist parties. Spain has so far resisted calls for a regional reorganisation of its constituency.

Participation in policy-making The participation of the regions in the making of EC law should not blind us to the fact that a great deal of European governance is carried out in another, less formalised but nevertheless institutionalised context, that of policy-making. In areas like the employment strategy, the concrete future objectives of the systems of training and education, the European area of lifelong learning, the social policy agenda, the European research area, the restructuring of regional and policy, the coordination of immigration policies and European policy is often designed by the Commission and approved and amended by the Council with consultation of the Parliament, the Economic and Social Committee and the Committee of the Regions. It is normally adopted in the form of soft law instruments and uses the so-called Open Method of Coordination (OMC). The OMC involves only Member States. The consultation process by the Members of the Council as required by a new culture of governance implies that relevant stakeholders are consulted. It is not always the case that the State governments represented at the Council consult regions, and in Spain consultation of the regions is at the discretion of the central government through sector conferences or specially convened conferences. The Commission often proceeds to open consultation, also following a new culture of governance,15 and regions then have an opportunity to participate just like any other stakeholder. The Commission can go even further and suggest the adoption of tripartite contracts between the Commission, the Member State and the region in areas like regional policy or the environment. Spain has not accepted this formula so far. As regards the policy-making issues, the only formal means of participation by the 15 See H Sundberg and J Bengoetxea, ‘The Other Constitution. The Commission’s White Paper on new Governance’ (2004) 7 Europarättslig Tidskrif.

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58 Joxerramon Bengoetxea regions, so far, is through the Committee of the Regions which is consulted on policy issues by the Commission. This aspect of participation has been neglected by the regions when putting forward their claims. The fact that only soft instruments are being produced should not be undervalued. They have an important normative, though not legal, impact; they are politically very influential and have a potential for being integrated into the political agenda at all levels: regions, States and EC. They can cause an implicit erosion of regional competences. Take the example of quality as an objective of the education systems. In most federal or quasi-federal arrangements education is a regional competence; the central government however may be tempted to invoke the need to ensure uniformity of quality standards in order to allow for coordination at the European level, and thereby preempt important competences through framework laws setting minimum quality standards throughout the regions or creating central agencies for educational quality in order to control the regions. The issue has dimensions that transcend the EC. Thus, the OECD has important policy-making functions in the field of education and lifelong learning. In some countries like Germany where education is a competence of the regions, it is a regional delegate appointed by the Bundesrat (the chamber with representation of the Länder) who represents the whole of the German State. Nothing of the sort takes place in Spain: the ACs are not even informed of the discussions taking place at the OECD ministerial working groups. The Commission has an Agency for health and safety at work which has its seat in Bilbao. This agency cooperates with the local and regional authorities, but only state-level representatives participate formally in the Board, which advises on EU policy in this very important area.

Application of Community law: downward participation of the regions According to Article 93 of the Spanish constitution, the Spanish State adapts international law into the Spanish legal order. The statutes of autonomy provide for the ACs to execute and enforce international treaties and the question was raised whether this could also mean implementation and legal transposition in the case of the EC. Initially it was thought, and the Constitutional Court confirmed this view by an awkward interpretation of the doctrine of supplementary powers (supletoriedad de la ley estatal), that only the State (the central government or state parliament) could implement directives. This absurd line, contradicting the very spirit of the EC Treaty, was later corrected following sharp criticism in the literature. But the practice has prevailed and is still encouraged by the State government which keeps adopting framework laws for the implementation of directives. ACs often wait for the State government to produce a sort of internal framework legislation (ley de bases) and then adopt the relevant laws in their autonomous parliaments or governments.

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Participation of Infra-State Entities in European Union Affairs in Spain 59 From the point of view of EC law it is clear that only the Member State as a legal person will be responsible for any infringement of EC law, including that arising from lack of implementation or breach of EC law by an AC or even by a local council. If the AC is competent internally to legislate in a given matter, there is no justification for the State government or legislator to usurp the competence with the excuse that a framework law is necessary to ensure implementation. That only adds complication, slows the transposition process and creates unease at the state level, besides disempowering the AC. It must not be forgotten that the binding nature of directives is a consequence of the principles of Community law and not of the act of implementation by a framework law. The AC is thus free to transpose a directive if it has the competence, but it may run the risk of having to change its legislation if the State government or parliament comes up with a framework law with higher minimal standards or with centralising or coordinating functions. This practice clearly goes against the interests of both AC and EU and diminishes their autonomy, but they probably see this as a means to exert pressure on the State to become more cooperative in the upwards process of consultation. If it was the State government that voted for the directive at the Council with no participation of the AC, let it then feel the pressure of implementing the directive. There is as yet no internal mechanism for imposing penalties on defaulting ACs who are in breach of implementation obligations and if the central government insists on the adoption of framework laws, then only it will be responsible for belated implementation (in the shape of penalties following infringement proceedings or liability for damage caused to individuals by non-implementation). The Court of Justice The lack of privileged status as regards defence of their own interests or judicial review by the regions is accompanied by an extensive passive legitimacy: the acts and laws of regions can be the source of breaches of EC law and this may lead to declarations of infringement, of incompatibility of their law with the Treaty and even to declarations of liability and duties of compensation. Formally it is the Member State which is concerned, but in situations where the political climate between the State government and the AC government is tense, this can be a cause for serious concern. It must also be pointed out that so far Spain has never adopted a policy of balanced representation of its different legal systems or of the historic nationalities in its appointment of members of the Court (including the Court of First Instance and Advocates General). No regional sensibility has been shown in the appointment to any of its posts in the Union institutions. But the requirements of EC law may go even further. Thus, the Court of Justice in Fratelli Costanzo16 declared not only that the local (and regional) 16

Note 10 above.

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60 Joxerramon Bengoetxea authorities are bound by Community law, but that they must also disapply internal law, including laws adopted by the State legislature, if they run counter to EC law, which may place the local and regional authorities in a very difficult position. They could even be acused of disobedience or breach of the duty of obedience toward the State and the constitution. The Court was probably not aware of potentially how far its ratio could go. Implementation of EU policy One must also examine application of EU policy and soft law, because this is an area which often escapes legal control. It is often a matter of resources, and political discourse has not so far made it an issue. Specific research would need to be carried out in order to find out how far Commission and Council policy recommendations and guidelines are being followed by regional governments. As regards the BAC, five examples of the impact of EU policy guidelines can be mentioned in this regard: thus, following the European employment strategy, the Basque government has elaborated an interinstitutional employment plan inspired by the European Employment Strategy where the social actors are involved; likewise, as regards the EU policy on lifelong learning, a White Paper has been elaborated based on the Commission memorandum and communication and this is unique in the Spanish context; in the field of research, the last research plan of the Basque Government closely follows the guidelines of the Community research 6th framework programme; in the field of sustainable development, the Basque government is one of the few governments in Spain to have adopted such a strategy; and finally, in the field of the information society the Basque government has adopted an interinstitutional plan which was closely inspired by the Commission’s ‘eEurope’. Direct consultation is sought with the Commission on policy issues, and this method of working and networking is proving very useful. The Basque government would now need to learn from the most recent experience of cooperation and adopt benchmarks for making the most of the OMC at all its levels, but it has not yet devised a strategy in this sense. Sharing good practice with the Commission and using the Committtee of the Regions in order to lobby the EU institutions in this regard would be useful strategies worth pursuing.

The claims of the major ACs Having seen the major aspect of the present status quo of regional representation, it may be interesting to note that calls for change are made not just by those ACs which like the BAC could be accused of going too far, but by the majority of the ACs. The major changes claimed by the regions in Spain are the following: — constitutional reform of the Senate to make it a chamber of the regions, of the ACs,

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Participation of Infra-State Entities in European Union Affairs in Spain 61 — allowing participation of the ACs in the Council through an agreed mechanism of coordination, — allowing direct access to the European Court of Justice in defence of their own competences; this claim would require changes into the present regulation of locus standi at the Court but the Convention on the Future of Europe has not accepted this claim, — regional constituencies for the elections to the EP instead of a single constituency, — increase the powers of Committee of Regions including access to the European Court of Justice in defence of subsidiarity and its prerogatives and a duty to provide reasons where its opinion is not followed. This line seems to have been favoured by the Convention on the Future of Europe. THE PARTICULARITIES OF THE BASQUE CASE

The specificity of Basque autonomy is the so-called economic covenant. It is often said that the Basque Country enjoys one of the highest levels of autonomy in Europe. This is only true as regards powers of taxation where sovereignty lies with the provincial parliaments. In other matters, going from the serious issues to purely anecdotal ones,17 the level of autonomy is actually lower than that achieved in other regions. Justice is a good example. Nations like Scotland have their own system of law: substantive and procedural, and their own administration of justice. Germany’s Länder have competences concerning the administration of justice and unify doctrine only at the level of supreme courts. The BAC has almost no powers—the only decentralised power is that of providing for material resources (buildings and computers) for the administration of justice. Even the issue of ensuring that the administration of justice can properly operate in the Basque language is denied by the very restrictive interpretation of the central government backed by the Constitutional Court.

The political parties This is clearly not the place to give an overview of Basque politics, which are complicated and in constant flux. But it may be interesting to note that the claims for a more direct participation of the Basque Country in European affairs is one of the cleavages of Basque politics. The position of the Basque and Spanish parties is different. The Popular Party and the Socialist Parties are quite reluctant to accept the participation of Autonomous Communities in the 17 The UK army garrisons in Scotland display the Scottish flag; nothing of the sort is conceivable in Euskadi. National sport teams are the obvious example, but seemingly irrelevant questions like numberplates of motor vehicles are often illustrative. German vehicle numberplates display the symbol of the Land where they are registered and the initials of their cities; in Spain they have been centralised and reflect no origin at all. The list can go on and on.

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62 Joxerramon Bengoetxea Council, although the Socialist Party is in favour of the reform of the Senate to make it a territorial chamber. Spanish parties believe only the State government can represent the State and downplay the examples of participation from other complex states like Germany, Austria, Belgium and the United Kingdom. The Basque parties claim the participation of the regions, and the direct participation of the Basque Country and Navarre, together with the State government in taxation matters.

The proposal of the Basque President The failure of regional formulae at the EU level, frustration with the watering down of the autonomy statute and with centralist attitudes of the political elites which have literally redefined the distribution of competences are factors contributing to a belief in many circles that the Basque Country should claim full status as a Member State. On 26 September 2002 the Basque President tabled before the Basque Parliament a proposal for debate that falls short of independence. It is a proposal for an association agreement between the Spanish State and the Basque Country. As regards Europe, this proposal calls for direct participation in the Council. This initial debating proposal became a year later a draft for a new Statute of Autonomy which the Basque government tabled before the Basque Parliament. An action for interim measures was brought by the Spanish Government of Aznar in order to prevent the parliamentary debate of this bill. However, the Spanish Constitutional Court rejected the action considering that it would be contrary to democratic principles to prevent such parliamentary discussion.18 The will to have a direct presence in Europe is justified by the President on the basis of the defence of exclusive competences and national identity. It is important to note that the claim to an associate status with the Spanish State echoes some of the proposals which were made at the Convention to create a third genus between the Member State and the ‘region’. Alain Lamassoure and Sir Neil MacCormick both tabled proposals to the Convention in this direction. The claim seems to be that the new European constitution recognises the special status of stateless nations and constitutional regions. Needless to say, the Convention had no time for that. The particular nature of historic rights based on so-called differential facts, especially Article 41 of the Basque autonomy statute, and recognised by the Spanish constitution, which is the legal basis for the proposal of the Lehendakari, is rejected by the Spanish government and the ruling elite.19 18

Auto (order) of 20 April 2004 in Case 6761/2003. This tendency has gone so far that some of the Spanish political elite and spin doctors have called for the suspension of autonomy foreseen in Art 155 of the constitution in order to bring the Basque Country back in line with ‘constitutional’ dogma. The climate has now cooled down with the ‘new style’ of Prime Minister Rodríguez Zapatero. 19

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Participation of Infra-State Entities in European Union Affairs in Spain 63 Indeed, a dogmatic approach to the Spanish constitution is prevailing over a functional or utilitarian conception of the constitution as proposed in the opening paragraph of this article.

Networks of regional cooperation In the meantime, and awaiting the evolution of the regional question in Europe, the Basque Country has followed a sort of associationist strategy by grouping together with other European regions and creating the Conference of Regions with Legislative Competences, REGLEG,20 with other regions of federal or semi-federal states who have similar claims for participation in the European institutions. Likewise, the Parliamentary assemblies of these regions also have created a network. In the meeting in Florence in 2002, they formulated common claims to the European Convention seeking the recognition of the regions’ right to defend their competence, to participate in the Council, to have access to the European Court, and to reinforce the Committee of the Regions. These REGLEGs have called for a distinct status within the EU, a status which could be reflected in the Committee of the Regions, in the creation of specific constituencies before the European Parliament and in the recognition of a special standing before the Court of Justice. The Basque Country is also very active in the Conference des Régions Périfériques et Maritimes (CRPM)21 currently presided over by Tuscany. The CRPM acts as a voice for the regions before the European Institutions. Three other networks are noteworthy: the European Association of Regions and Local Authorities for Lifelong Learning (EARLALL),22 the Network of Regions for the Information Society and the Network of Regional Governments for Sustainable Development (nrg4SD),23 which is a world-wide organisation. In a more specific sector, there is a Network of European Wine Producing Regions, and the seat is in Bilbao. The idea behind all these sectoral networks,24 which are ad hoc and piecemeal, is twofold: regions thus seek to gain a voice before the supranational and international institutions, especially with a view to consultation and defence of regional interests, and they have a platform for cooperation, sharing of best practices and partnerships. These experiences are contributing to the establishment of important cooperation frameworks and are attracting the attention of new regions. However, an overall strategy for participation in Europe through the different areas of competence is lacking, and as a result many projects and 20

http://www.regleg.org/ http://www.crpm.org/ 22 http://www.earlall.org/ 23 http://www.nrg4sd.net/ 24 See J L de Castro Ruano and A Ugalde Zubiri, La Acción Exterior del País Vasco (1980–2003) (Oñati, IVAP, 2004) for a very good overview of all networks of cooperation. 21

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64 Joxerramon Bengoetxea actions which could have a European dimension and create synergies with other levels of government and other regions are sadly missed out. Curiously enough the Basque Country has been rather moderate in its claims for participation, which have been centered on the EU. Thus participation in organisations like the OECD, or UNESCO, WHO, FAO, and ILO, should also involve at least consultation and information and ideally participation in the formation of the will or even direct representation, as in the case mentioned above regarding the education committees of the OECD.

CONCLUSION

One of the important theoretical implications of the dispute regarding the participation of ACs in European institutions is the conception of the State. It is clear that the EU brings together Member States, and that the Member States are the interlocutors of the EU. But the question is whether this necessarily means the central government or whether other institutions can also represent the State. A predominant conception of Spanish governments so far has been that only the central State government can represent the State. This is true as regards the formation of the will of the State, the unwillingness to be subject to any form of scrutiny and control of that position by Parliament and by the Senate, and even the unwillingness to include any regional minister in the State representation at the Council. It is even more so as regards participation in more classical international fora where the State does not even inform the ACs on issues of their competence. It would seem almost as if the Spanish government had warned the European institutions, especially the Commission, that it should not proceed to a direct consultation of the regions without its prior consent. The tripartite contracts proposed by the Commission in the White Paper on Governance25 in fields like structural funds or the environment are doomed to fail in Spain precisely because of this idea that only the central government can act on European affairs. The result is, of course, a risk of diminishing the efficiency of European law and policies to the detriment of the region, the State and Europe. This limited conception of the State also eschews asymmetric formulae. It is clear that ACs have different competence thresholds and that this fact necessarily has consequences when it comes to the defence of competences in issues such as subsidiarity, yet Spanish governments have adopted uniform formulae. The distribution of competences seems to be a purely internal issue. When it comes to the representation of the State before the EU, the State government recaptures all the competences alleging the principle of uniformity of the State representation. But the Spanish government made it public, in the light of its position in the Convention on the Future of Europe, that it opposes a formula whereby the 25

http://www.europa.eu.int/comm/governance/index_en.htm.

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Participation of Infra-State Entities in European Union Affairs in Spain 65 new constitution would provide for the respect of local and regional identities, considering that this is an interference with internal Member State matters. The recent moves to defend the interests of so-called ‘constitutional regions’ (REGLEGs) also raise interesting issues. How can one define a constitutional region? What specific level of competences are they supposed to have? What legal instruments are they supposed to enact? Are they supposed to have an elected parliament and government? They are difficult notions and any attempt to integrate them into institutional representation formulae at the EU will have to face the fact that only some Member States have such constitutional regions, and the principle of equality between the Member States may be compromised. According to MacCormick26 the constitutional regions differ from administrative regions which have no identification as nations and because their functions are policy-coordinating rather than legislative. However he lists German Länder as constitutional regions since their construction as legal entities with full legislative competences directly or indirectly flows from the constitutional order of the Member State of which they form part, although they do not claim a national identity or a national democratic sensibility. The distinction would then be between purely administrative regions, constitutional regions and stateless nations which claim sovereignty. But how can the principle of equality be ensured if constitutional regions and stateless nations are given an institutional status with allegedly some rights and obligations in the EU context? The exploratory search for a third genus capturing the regions is indeed a challenge. The REGLEGs have called for a clear distribution of competences. The claim is understandable in the sense that they want to make sure that the regional competences are not watered down or usurped outright with reference to the excuse provided by the process of integration, but the claim does seem to have other unfelicitous tones. One can doubt whether a strict division and distribution of competences is at all possible.27 On the other hand, l’air du temps, the new culture of governance, enhances the participation of public authorities in the fulfilment of shared missions and this line favours cooperation between administrations rather than strict distribution and separation of competences. The very principle of subsidiarity seems to carry an implicit recognition that such strict distribution of powers is very difficult, especially where shared or concurrent competences are at stake. The areas of policy where no laws as such are adopted can be exercised by different administrations, since their exercise and implementation will not so much be a matter of title or actual competence as one of resources: does the administration have the necessary means to act successfully, rather than does the constitution explicitly recognise a competence to act? 26 Contribution 220 to the Convention, 31 January 2003: Stateless Nations and the Convention’s debate on regions. See N MacCormick, Questioning Sovereignty (Oxford, Oxford University Press, 1999). 27 See the contribution of S Weatherill to this volume, and, beyond the regional case, S Weatherill, ‘Competence creep and competence control’ (2004) 23 Yearbook of European Law.

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66 Joxerramon Bengoetxea The novel Convention on the Future of Europe and the Inter-Governmental Conference, which in June 2004 agreed a Treaty establishing a Constitution for Europe which now awaits ratification, will shape the nature of the enlarged Europe and will lead to a common vision of the European citizens and peoples, setting out what we wish to do together and how we want to do it. The whole acquis of the previous European Communities will be reinstated and integrated into a larger legal compound. We are thus witnessing the birth of a new international player with a shared view of the person, the citizen and society through the Charter of Fundamental Rights. It is important that, in a postsovereign and post-national world, this new player also provides vision for those nations in Europe which fall short of statehood but wish to have a direct say in the common project of Europe.

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4 The Scottish Parliament and the European Union: Analysing Regional Parliamentary Engagement CAITRÍONA CARTER AND AILEEN M C LEOD

INTRODUCTION

I

N SCOTLAND, THE UK Labour Government’s devolution policy of the late 1990s was officially launched in July 1997 with the publication of the White Paper ‘Scotland’s Parliament’.1 Subsequently, and following a successful referendum result, the Scotland Act was passed in Westminster in November 1998. Devolution took effect on 1 July 1999. Since then, the framework legislation has been further supplemented by an increasing body of ‘soft law’—notably, Concordats, Departmental Guidance Notes, Interparliamentary Agreements and Conventions.2 Collectively, these instruments create the framework for the emergence of both the Scottish Executive and the Scottish Parliament as political institutions. That these new institutions would have a role to play in UK-European affairs was an integral part of the devolution settlement. Under the Scotland Act 1998, the Scottish Parliament was given the authority to issue both primary and secondary legislation to develop a number of policies, including policies for which the EU also has a competence. Counted amongst these were policies of some economic and social significance for Scotland—for example, justice, fisheries, agriculture, environmental policy and economic development. And yet, this devolution of powers notwithstanding, the UK Government continued to reserve the right of negotiation in all matters at EU level, including those policies considered devolved. Furthermore, the UK Government also retained its legal power

1 Cm 3658 (1997). Devolution was launched in Wales with the publication of a White Paper in July 1997. This chapter does not cover the process of devolution in Wales—see J Osmond and B Jones (eds), Birth of Welsh Democracy: The First Term of the National Assembly for Wales (Cardiff, Institute of Welsh Affairs and the Welsh Governance Centre, 2003). 2 S Bulmer, M Burch, C Carter, P Hogwood and A Scott, British Devolution and European Policy-Making: Transforming Britain into Multi-Level Governance (London, Palgrave Macmillan, 2002).

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68 Caitríona Carter and Aileen McLeod to issue secondary legislation for Scotland in order to implement or transpose EU legislation should this prove necessary.3 The Scotland Act thus established a complex overlap of policy competences between the centre and the new Scottish institutions which affected all stages of the policy cycle, including the formulation of UK-EU policy. And, whereas the Scottish Executive was expected to be fully involved in the formulation of UK-EU policy through its relations with Whitehall, the role allocated to the Scottish Parliament was one of ‘scrutiny’. Against this background, the first aim of this chapter is to explore the processes by which the Scottish Parliament has interpreted its scrutiny role and in so doing has defined itself as a regional parliamentary actor within the new system of UK-EU governance. To do this, we focus on the evolution in thinking of both Parliamentarians and officials during the first and the second sessions of Parliament, on how the Parliament, and in particular on how its European Committee, would perform its scrutiny function in the formulation of UK-EU policy. What conception of parliamentary scrutiny emerged during this period? What ideas and principles underpinned the development of scrutiny procedures? Why did certain principles of parliamentary governance prevail? Following from this, the second (and more general) aim of the chapter is to give some consideration to the way in which an assessment of regional parliamentary engagement can be made. To date, the literature on parliamentary governance in the EU context has focused primarily on the role that national parliaments play.4 An important strand of that research has been to conduct 3 This was expressed in the main concordat as follows: ‘The devolved administrations are responsible for implementing . . . EU obligations which concern devolved matters. In law, UK Ministers have powers to intervene in order to ensure the implementation of these obligations. If the devolved administrations wish, it is open to them to ask the UK Government to extend UK legislation to cover their EU obligations’ (Cm 5240, December 2001, Memorandum of Understanding and supplementary Agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee, point 20). The procedures to implement this were placed in the bi-lateral concordats between Whitehall departments and the Scottish Executive. For example, according to the Concordat between the then MAFF—now DEFRA—and the SE, MAFF holds responsibility for notifying the SE at official level of EU obligations (21–23). From the point of notification, there is a four week time period in which the SE decides whether or not to use ‘the option to implement through use of UK/GB instruments’, ie SE can choose whether or not to use separate Scottish legislation Notwithstanding that certain policy areas are devolved, therefore, the UK Government shares executive functions with the Scottish Executive. The organic quality of devolution is evident here, with the Scottish Executive given the option to devolve (or not) every time an EU directive must be transposed. If the Scottish Executive decides to implement via the Scottish route, there will be consultation and exchange of copies of Statutory Instruments with the appropriate Whitehall department; if an Act of the Scottish Parliament is to be adopted, the Scottish Executive has a responsibility ‘to consult [the appropriate] Departments as necessary on its proposals with a view to ensuring consistency of effect and timing, where appropriate’ (Concordat MAFF/SE 23). 4 A Maurer and W Wessels, National Parliaments on their ways to Europe: Losers or Latecomers? (Nomos Verlagsgesellschaft, Baden-Baden, 2001); T Bergman, ‘National Parliaments and EU Affairs Committees: Notes on empirical variation and competing explanations’ (1997) 4 Journal of European Public Policy 373; D Rometsch and W Wessels (eds), The European Union and the Member States: Towards Institutional Fusion? (Manchester, Manchester University Press, 1996); P Norton, ‘The UK: Political conflict, Parliamentary scrutiny’, in P Norton (ed), National Parliaments and the EU (London, Frank Cass Ltd, 1996).

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The Scottish Parliament and the European Union 69 comparative studies to assess the different levels of capacity-building and procedural development within national parliaments used to scrutinise their Governments when acting at EU level.5 There are, however, some problems in applying the frameworks developed for assessing national parliamentary control over EU affairs to an assessment of the Scottish Parliament. First, regional parliaments face a very different set of challenges than those faced by national parliaments when developing effective mechanisms for scrutinising their governments in domestic-EU policy. For example, in Scotland, the scrutiny function would be one of ensuring that Scottish interests were being fully taken into account in the development of the UK line and as a result of communication between the Scottish Executive and the relevant Whitehall department. In other words, the regional scrutiny function is primarily one of scrutiny of the regional government’s activities within domestic inter-governmental processes, to exercise parliamentary control over relations between the Executive on the one hand and Whitehall on the other. The nature of the domestic model of regionalism being adopted by regional or devolved governments and the centre thus becomes a key variable in assessing regional parliamentary scrutiny. Second, more attention must be given to processes of institution-building in the consideration of how parliamentary institutions at the regional level are engaging with EU affairs. This is particularly the case for Scotland, where a new institution is being established in a new (and ‘unsettled’)6 constitutional environment. To do this, we draw on accounts of institutions which view them not just in terms of formal rules or procedures, but in more sociological ways as ‘symbol systems, cognitive scripts, and moral templates that provide the “frames of meaning” guiding human action’.7 Institutions, we argue, have a strong normative order, which can be defined as institutional ‘cultural’ aspects: ‘accepted values about how processes should work, who should be involved in this or that process, and what rules should apply’.8 And a key part of institution-building is the construction of the cognitive script—the template—of the institution. Furthermore, whereas the cultural aspects of institutions are frequently cited in explanations for continuity in institutional practice over time, a central research question can be asked as to the prominence to be accorded to the cultural dimension in situations of transformation9—in this case, devolution. For, as Swidler argues, in ‘eras of transformation’ culture becomes a significant variable in explanations of action. More specifically, institutional cultural 5 6

Maurer and Wessels note 4 above. A Swidler, ‘Culture in action: symbols and strategies’ (1986) 51 American Sociological Review

273. 7 P Hall and R Taylor, ‘Political science and the three new Institutionalisms’ (1996) XLIV/5 Political Studies 936, 947. 8 Bulmer et al note 2 above p6; S Bulmer and M Burch, ‘Organising for Europe: Whitehall, the British state and the European Union’ (1998) 76/4 Public Administration 601. 9 C Carter and A Smith, ‘Conceptualising Multi-Level Orders of Scottish Fish and Bordeaux Wine: The Role of Territory and Political Assignment’, paper presented at the Colloque Internationale, Les Ideologies des Politiques Territoriales, Université de Rennes, 4–5 March 2004.

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70 Caitríona Carter and Aileen McLeod aspects can influence action in particular ways; ‘first, they provide a tool kit with which to solve problems; second, they establish persistent ways of ordering action through time or “strategies of action”; third, the cultural components of an institution are used to “construct” strategies of action’.10 Regarding this role for cultural practice as significant in processes of institution-building, we suggest, encourages a particular approach to the study of how the Scottish Parliament engages with UK-EU policy. In previous studies on national parliaments, the existing cultural aspects of the institution are seen to ‘anchor’ adaptation in already well-established ways of acting.11 This is not the situation in Scotland where, in the absence of a Parliamentary institution predevolution, there are no existing ‘ways of doing’, or institutionalised ‘accepted values’ to anchor the institution in this manner. The Scottish Parliament cannot adapt in this way as, being a new institution, it has no prior experience. Rather, one might anticipate that the process of adaptation in Scotland would be as much concerned with the construction of a normative code and template which will guide engagement at EU level, as it would with the act of engaging. Consequently, we advocate a departure from more functionalist and synchronic approaches used to assess degrees of national parliamentary engagement.12 Such approaches, we argue, run the risk of missing innovative processes of institution-building at the regional level, processes which can offer explanations as to why Parliamentarians and officials might choose a particular model in the conduct of scrutiny. In short, a focus on the ‘cultural’ aspects of an institution, we argue, can be instrumental to explaining choices in parliamentary engagement over time. To examine these issues, the chapter is organised as follows. The next section, ‘Model of regionalism’, explains the model of regionalism for Scottish input to UK-EU policy-making processes that the Scottish Parliament inherited from the various agreements made between the Scottish Office and Whitehall prior to devolution. By setting out the intended role for the Executive (and, by implication, for the Parliament) in the handling of European policy within a devolved UK, these agreements provided a template through which the role of both institutions in EU affairs was intended to be operational. The section that follows goes on to explore how in attempting to interpret this inherited model, first the European Committee, and then the Parliament as a whole set in motion significant learning processes which led them to (re-)interpret their scrutiny function. In this section, we show how a shift in the ideational environment in the course of 2001 secured the acceptance of a particular ‘ethos of action’ or way of doing things in the European Committee, and one which facilitated a strategy of 10

Swidler note 6 above 273. D Judge, ‘The Failure of National Parliaments?’ in J Hayward (ed), The Crisis of Representation in Europe (London, Frank Cass Ltd, 1995). 12 For example, the research conducted within the Maurer and Wessels project was aimed at assessing levels of national parliamentary engagement at a fixed point in time along a continuum of weak to strong levels of adaptation. See Maurer and Wessels note 4 above. 11

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The Scottish Parliament and the European Union 71 action to be developed for the Parliament as a whole. Furthermore, we show how the permeation of EU level ideas of ‘good governance’ acted as a catalyst to bring about this shift in thinking as to the purpose of scrutiny at the regional level. In turn, this facilitated the development of a ‘Scottish’ scrutiny system. The chapter draws on the research expertise of a practitioner in the Scottish Parliament working on European issues as well as from research conducted under the aegis of an ESRC-funded project.13

MODEL OF REGIONALISM: THE INHERITED ‘MODEL OF ACTION’ 14 . . . the devolved settlement is such that the Scottish Parliament has to operate within the formal structures that exist through the UK.15

The intended role for the Scottish Executive The formal Act of Devolution set in motion a particular dynamic with regard to governmental engagement with EU business—and one which retained a strong role for the centre. Although the process of devolution officially began on 1 July 1999, preparations for the handling of European policy within a devolved UK had been underway for some time.16 In addition, and during the period predevolution, a number of ‘understandings’ were reached in the interpretation of these formal powers to determine how the overlapping of policy competence between the UK Government and the Scottish Executive would be handled. Indeed, extensive negotiations between Whitehall and former Scottish Office officials took place from 1997 onwards which led, first, to the drafting of pre-legislative White Papers and, second, to the drawing up of post-legislative mechanisms—or ‘concordats’—to facilitate communication and co-ordination between state and sub-state governments in EU matters.17 At the point at which 13 ESRC-funded projects on ‘Asymmetric Devolution and European Policy-Making in the UK’, Ref L219 25 2003 Ref L327 25 3024. In addition to Caitríona Carter, the research team consists of Simon Bulmer, Martin Burch, Ricardo Gomez, Patricia Hogwood and Andrew Scott. Some of the evidence presented in this paper stems from interview material derived from work undertaken by fellow researchers. More details of the team’s work and publications can be found on the project web-site at http://les1.man.ac.uk/devolution/ 14 The phrases ‘model of action’ and ‘ethos of action’ used in the headings are borrowed from Swidler note 6 above. 15 A McLeod, ‘The Scottish Parliament and Europe’, SPICe Briefing 03/44 (Edinburgh, Scottish Parliament, 2003) 9. 16 For a full discussion see outcomes of the ESRC project, Bulmer et al note 2 above. 17 Negotiations were operationalised within newly created cabinet structures, established once the Labour Government took office in May 1997, namely the Cabinet Office ‘Constitution Secretariat’ (COCS) and the Devolution to Scotland, Wales and the Regions (DSWR) Committee chaired by Lord Irvine, the Lord Chancellor. The first meeting of CSCO, on 5 May 1997, which included the participation of both the territorials, agreed to give the ‘lead’ to the Secretaries of State for Scotland and Wales (and their departments) to develop drafts within the ministerial committee DSWR (Bulmer et al note 2 above 7–9).

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72 Caitríona Carter and Aileen McLeod MSPs came to power, therefore, a new UK ‘model of regionalism’ of UK-EU inter-governmental relations had been articulated and ‘codified’ in an increasing number of inter-administrative agreements.18 A key focus of the devolved administrations’ policy is to ensure good relations with the centre in order to influence the formulation of the UK-EU policy position. Pre-devolution the development of that policy position was centred in Whitehall at the heart of UK Government.19 Post-devolution, the central system would require to be ‘opened up’ to the (three) new governments at the devolved levels.20 As such, procedures required to be established in order to facilitate communication and co-ordination between Whitehall and the devolved administrations. Critically, this would allow for information-sharing between governments (and the centre to the region), but also for the expression of Scottish interests to be taken into account in the formulation of a ‘UK’ policy position.21 Post-devolution a model of co-operative governance is emerging, the protection of which now forms a central element of each of the devolved administrations’ ‘regional’ EU policy. In a formal sense, communication between governments is governed by the concordats. Communication on EU matters is covered in general terms by the EU concordat, and in specific policy terms by bilateral concordats signed between specific Whitehall departments and the devolved administrations. The EU concordat covers the following aspects of engagement—ex ante policy formulation, access to the Council of Ministers, implementation of EU law. The tenor of the concordats is to create an environment conducive to the sharing of intelligence between governments—with the emphasis on department-department lines of communication. Post-devolution the centre (and particularly the Foreign and Commonwealth Office) has conducted some re-organisation (for example, devolution desk officers) and put in place new informal procedures in order to keep the devolved administrations within the UK-EU policy loop.22 In addition, the Joint Ministerial Committee on European Affairs (which brings together the UK Government and the three devolveds) has now become a forum for discussion and co-ordination of policy, particularly on the eve of European Council meetings. It meets regularly to develop UK-EU policy, alternating with the Cabinet’s own Sub-Committee on European Issues (EP), of which the devolveds are not members. Most actual policy development, however, is conducted bilaterally between departments, based on informal processes, ad hoc problem solving, email/intranet communications, copying-in of contacts and so forth.23 In particular, emphasis is placed on ensuring a continuity of the old system as far as possible: 18 A Scott, ‘The Role of Concordats in the New Governance of Britain’ (2001) 5/1 Edinburgh Law Review 21. 19 Bulmer and Burch note 8 above. 20 Bulmer et al note 2 above Ch 3. 21 Bulmer et al note 2 above Ch 3. 22 Bulmer et al note 2 above Ch 3. 23 C Carter, ‘Making Multi-Level Governance Work: The View From the Devolved Administrations’, No 5/2003, University of Manchester, 2003.

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The Scottish Parliament and the European Union 73 The officials involved in the drafting of the concordats have indicated that in large part they were making up the ‘rules’ as they went along. There was no master plan; no pre-existing model . . . The only guiding principle was that, wherever possible, prevailing inter-departmental practices should be codified.24

Or, the EU concordat: it is expected that consultation, the exchange of information and the conventions on notifications to EU bodies will continue in similar circumstances to the arrangements in place prior to devolution (B1.3; B2.3; B3.3: emphasis added).

A central plank of the devolved administrations’ strategy is thus to engage and attend UK-EU related policy meetings. The extent to which this is happening in practice is hard to assess accurately—and is part of the object of Scottish Parliamentary scrutiny, as we discuss below. Arguably, what we find during this period is the emergence of a specific normative model or design of Scottish-UK-EU governance, established and constitutionalised via a multitude of instruments, and the development of a common frame for inter-governmental engagement. As we state above, a core distinction between national parliamentary scrutiny of EU affairs, on the one hand, and regional parliamentary scrutiny of EU affairs, on the other, is that national procedures are aimed at a parliamentary control of the national Government Minister acting within the Council of Ministers. In Scotland, however, the focus of scrutiny would be over the Executive’s activities within new domestic intergovernmental processes—in other words, a scrutiny of the extent to which the Scottish Executive was in regular contact with the UK government over the issue under consideration. The nature of the model of regionalism being developed between governments is thus a core variable in the development of a regional scrutiny system. Overall, these discussions and agreements pre-devolution led to the establishment of a particular model of action for the future Scottish Executive’s input to UK-EU affairs. This model laid an emphasis on informal practice as far as possible. What would emerge at the start of the first session of the Parliament was a strongly codified normative governmental system. Somehow, the Parliament would have to find a means to scrutinise and engage with this inter-governmental process, albeit one that was new, but already entrenched in long-established ways of acting adapted from the former Whitehall approach.

The intended role for the Scottish Parliament Against this backdrop, and during the course of 1997–1999, consideration was also given to the specific role that the Scottish Parliament would play in respect to the new UK-EU ‘model of regionalism’ post-devolution. The White Paper 24

Bulmer et al note 2 above Ch 3.

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74 Caitríona Carter and Aileen McLeod had been largely silent on this issue, but noted that a Parliament would be able to scrutinise EU documents.25 In 1998, the Scottish Office set up a Consultative Steering Group (CSG) to set out the model for a Scottish Parliament in preparation for devolution.26 The CSG took an early decision that the Parliament would conduct a scrutiny of EU documents, and that there would be a specialised European Committee.27 Following from this, and with the lead coming again from Scottish Office officials, more detailed consultations took place to consider alternate approaches to capacity-building and a further elaboration of the function of ‘scrutiny’.28 The final report of the CSG advocated wide-ranging powers for the Scottish Parliament in EU affairs, and proposed that a European Committee conduct an ex ante scrutiny of EU legislation, including a ‘sift’ of EU documents.29 In addition, it was proposed that powers be given to the subject committees to scrutinise the implementation of EU law in their subject area. The European Committee would also be the institutional setting for debate on EU affairs, as would plenary sessions.30 Overall, three main roles were recommended by the CSG: Scrutiny of EU documents through a ‘sifting mechanism’ for identifying those documents of most interest to Scotland; Scrutiny of the implementation of EU legislation; Proactive role in the development of key areas of EU policy. These broad proposals formed the basis of the provisions of the Standing Orders of the Parliament and are reflected in the initial remit given to the European Committee in the Standing Orders. The initial remit of the Committee was to consider and report on (a) proposals for European Communities legislation, (b) the implementation of European Communities legislation and (c) any European Communities or European Union issue.31 25

Cm 3658 (1997) 5.7. The membership of the CSG is listed in Box 1 at the end of the chapter. 27 McLeod note 15 above. 28 Bulmer et al note 2 above Ch 4. 29 Report of the Consultative Steering Group on the Scottish Parliament: Shaping Scotland’s Parliament (Edinburgh, Stationery Office, 1998). 30 Bulmer et al note 2 above Ch 4. 31 Rule 6.8 of the Standing Orders of the Scottish Parliament The Committee’s remit was extended by the Parliament on 5 March 2003 to cover the following two additional issues (d) the development and implementation of the Scottish Administration’s links with countries and territories outside Scotland, the European Communities (and their institutions) and other international organisations and (e) co-ordination of the international activities of the Scottish Administration. The Committee’s name was also altered accordingly to the European and External Relations Committee (EERC). This followed a change in the ministerial portfolio of the former Minister for Education and Europe, then Jack McConnell, to include external affairs and an expansion in the responsibility of the External Relations division of the Scottish Executive to cover both EU affairs and international relations. Such a change in the Committee’s remit was therefore deemed necessary by the Members to enable them to scrutinise not only the EU activities of the Executive but also the external relations policy, strategy and activities of the Executive. 26

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The Scottish Parliament and the European Union 75 The ‘new’ European Committee was thus granted an extensive set of powers with regard to the scrutiny of European matters. The way in which the Committee would operationalise such functions to develop a Scottish scrutiny system was appropriately left for the Committee Members, working with their officials, to decide post-devolution. This notwithstanding, it would be wrong to assume that the decisional process which took place post-devolution was itself wholly uninfluenced by the aspirations and expectations which had emerged during the period pre-devolution. For a number of assumptions and understandings had already been built into the constitutional settlement within which MSPs and officials would operate—and which would appear (in the first instance at least) to define the spectrum of choice. First, the fundamental civic debate which had been taking place within Scotland under the aegis of the Constitutional Convention had reached a civicbased consensus on the principles of the ‘new’ Parliament. A key feature of the model to be developed for the Scottish Parliament was that it would be ‘unlike Westminster’32—underpinned by principles specific to the Scottish model for participatory democracy, part and parcel of the ‘new politics’ of Scotland. Organisationally, this was reflected in the integrated powers of the committees, and their ability to initiate legislation.33 In terms of norms, the core principles of the new Parliament were set out in the CSG Report and are ones of power sharing, access and participation, and accountability. These principles were expected to guide the Parliament in the operation of its activities and form the foundations of any working methods to be adopted by MSPs and officials post-devolution. As such, they can be viewed as the seeds of the institutional cultural dimension to be nurtured within the Parliament in the process of institution-building. Second, discussions held pre-devolution on how the Parliament would conduct its ex ante scrutiny function introduced a tension into the inherited ‘model of action’ as far as Parliamentary scrutiny of UK-EU policy was concerned.34 Whereas the foundational CSG principles which were to guide MSPs in their interpretation of their role were premised on an aspiration for the Parliament to be ‘unlike Westminster’, in the case of the scrutiny of EU policy, an opposite way of thinking can be seen to inform proposals. As stated above, a decision was taken by the CSG—and applied via the Standing Orders—to invest all ex ante EU scrutiny functions in the one European Committee. That capacity-building would be conceptualised in this manner arose from an attempt to ‘borrow from’ the Westminster model as many of the ideas on the future role for the Scottish Parliament in the scrutiny of EU affairs mooted during this period stemmed

32 B Crick and D Millar, To Make the Parliament of Scotland A Model for Democracy (Edinburgh, John Wheatley Centre, 1997). 33 Bulmer et al note 2 above Ch 4. 34 C Carter, ‘Democratic governance beyond the nation state: third-level assemblies and scrutiny of European legislation’ (2000) 6 European Public Law 429, 445.

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76 Caitríona Carter and Aileen McLeod from an examination of Westminster practice.35 The resultant ‘ghettoisation’36 of ex ante scrutiny functions in one committee would prove problematic for the Scottish European Committee, not least because the Westminster ‘way of doing things’ is one that has evolved over time and is conducted within national patterns of executive-legislative relations37—patterns that cannot simply be transposed from one parliamentary institution to another. That a national template had informed thinking on the regional approach to be adopted would thus act as a constraint for MSPs and officials in operationalising the scrutiny functions.

THE LEARNED ‘ETHOS OF ACTION’

As we have seen above, when MSPs and officials took up their offices in the summer of 1999, they inherited a ‘model of action’ for the intended Scottish input to UK-EU processes derived from understandings which emerged in the two year run up to devolution. This section explores how both officials and Parliamentarians struggled with this inherited model and began a process of constructing their own template for engagement and the conduct of scrutiny. There are two aspects to the learning or identification process which took place during the first session and up to the start of the second session—until July 2004. The first took place within the European Committee as it bedded down as a Committee. The second took place within the Parliament as a whole, in a process of what might be called ‘parliamentary institutionalism’. Arguably, this was a key formative period during which processes of socialisation and institution-building can be observed.

The European Committee’s early phase, 1999–2001 As discussed in the previous section, it was envisaged by the drafters of the CSG report that the primary institutional setting for the ex ante scrutiny of European legislation in the Scottish Parliament would be the European Committee. It was considered that in performing its scrutiny function the Parliament, through its European Committee, would be able to influence the Scottish-UK-EU policy process and in so doing seek to ensure proper scrutiny of and accountability for the European activities of the Scottish Executive. While much of this thinking 35 The Scottish Office, ‘CSG: Scrutiny of European Legislation by the Scottish Parliament’ Position Paper, (1998) CSG 98/36, 21 August 1998; Scottish Office, ‘Scotland’s Parliament: Handling of European Business’ (1998) Draft Consultation Paper, mimeo. 36 To clarify: we mean the ghettoisation of ex ante scrutiny functions vis-à-vis EU affairs. The Standing Orders, following CSG recommendations, proposed the sharing of powers in terms of the scrutiny of implementation of EU legislation across the subject committees of the Parliament. 37 Judge note 11 above 82.

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The Scottish Parliament and the European Union 77 was reflected in the Committee’s remit as laid down in the Parliament’s Standing Orders in 1999, the extent to which scrutiny and influence can be exerted depends on how the Committee interprets these roles in practice. Equally important to how the Committee interprets its roles is that, as a component part of the Scottish Parliament, the Committee operates through a system of governance that by its very nature places limitations on what the Committee can do in relation to European matters. There is therefore the added challenge of trying to establish where the Committee and indeed the Parliament fit within this system. It is fair to say that, to begin with, the Committee struggled to interpret its scrutiny role. As a new Committee starting from scratch with no predecessor, there was nothing to help the Parliament’s officials shape new ways of working. This, coupled with the inherited understandings of how the Committee should work, meant that initially the Committee looked to the House of Commons European Scrutiny Committee as a model to try to emulate in Edinburgh. As a result, a central feature of the Committee’s early scrutiny system was ‘the sift’. To support this system, the Committee received copies of all proposals for EU legislation and policy initiatives as well as the UK Government Explanatory Memorandum (EM) directly from the Cabinet Office. In its legacy paper, the Committee stated that it sifted through an estimated 1200 EU documents it received each year to identify subjects that might be of interest either to the Committee or to the other subject committees.38 In addition, the Committee began to request further information from the Executive: first, Scottish Cover Notes (SCN), which were attached to the UK government’s EM and stated the Executive’s position on the EU document in question, including a statement as to whether the Executive agreed with the relevant Whitehall department or not; and second, a separate Scottish European Brief (SEB) which could be requested in urgent cases.39 In fact, such a request only happened once. Modelled on the scrutiny system at Westminster, it soon became apparent that the Committee could not scrutinise EU documents in the same way that a national parliament does. There were many problems with the sift system, not least the fact that it was very time consuming and a resource intensive task, with the Committee processing large amounts of information.40 More fundamentally though, the underlying problem for the Committee at this time was that the purpose of the sift was unclear in terms of what the Members wanted to achieve by going through this volume of documents and related government-provided

38 European and External Relations Committee, Legacy Paper: A review of the first Parliamentary Session of the European Committee—advice to successors (Edinburgh, Scottish Parliament, 2003). 39 Bulmer et al note 2 above Ch 4. 40 During this early period one full-time Clerk and Assistant Clerk and one part-time legal advisor supported the work of the Committee. When compared with staffing levels within the House of Commons European Scrutiny Committee (16 full-time officials) and the resources available to the Scottish Parliament’s other subject committees, the European Committee was under-resourced for the task required of it at the beginning and overwhelmed by the volume of EU documents.

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78 Caitríona Carter and Aileen McLeod information (Whitehall or Edinburgh). With no criteria on which to base the selection of key EU documents, and little guidance from Members as to what constituted the ‘Scottish interest’, officials had to rely partly on their own expertise and partly on instinct. The lack of a sense of purpose is best illustrated by a consultation initiative undertaken by the Committee at this time to establish which EU policy areas were deemed to be the most important for Scotland. To do this, the Committee decided to ask the Scottish public its views: ‘what does the EU mean to you and what would you like the Scottish Parliament, and the European Committee in particular, to do about it?’ A short list of subject areas was drawn up, which were to form the basis of the Committee’s forward work programme, and Committee members were appointed ‘rapporteur’ for each area and tasked with producing a report. Areas included the EU Charter of Fundamental Rights, the euro, fish diseases and infectious salmon. The result, the usefulness of which has been questioned, was to begin scrutiny of subject areas that ‘did not necessarily correspond to the external agenda being set by the European Commission’.41 Overall, this early phase can best be described as the ‘art of muddling through’.42 During this period, we find evidence of a lack of identification of the European Committee as a parliamentary committee understanding its role in European affairs. Three main factors mitigated against a strong learning process at this stage. First, a high level of changing membership in the Committee hindered an accumulation of expertise.43 Second, a lack of cross-fertilisation of ideas across those policy areas with a strong EU dimension, due to the lack of cross-representation of membership between the European Committee and relevant subject committees,44 prevented policy-based discussions and sharing of knowledge. Third, the fact of coalition government, part and parcel of the new politics in Scotland, had begun to create difficulties in questioning the Executive.

Sea-change in the European Committee, 2001 The turning point for the Committee in the development of its European scrutiny role came in 2001 with its own initiative inquiry into the governance of the EU and the future of Europe and the role for Scotland. Arguably, this is still the Committee’s most significant inquiry to date, coming as it did in response to 41 G Heggie, ‘The story so far: the role of the Scottish Parliament’s European Committee in the UK-EU policy cycle’ (2003) Summer 2003/ Issue 44 Scottish Affairs 126. 42 C Lindblom, ‘The science of muddling through’ (1959) 19 Public Administration Review 79; C Lindblom, ‘Still muddling, not yet through’ (1979) 39 Public Administration Review 517. 43 Heggie note 41 above; N Randall and D Seawright, ‘Merely a talking shop? The European Committees of the Scottish Parliament and Welsh Assembly: “New Politics” in a system of multilevel governance?’ paper presented at the Annual Conference of the Political Studies Association, University of Aberdeen, 5–7 April 2002. 44 Bulmer et al note 2 above Ch 4.

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The Scottish Parliament and the European Union 79 two parallel debates: the European Commission’s White Paper on European governance (published in July 2001)45 and the launch at the European Council in Nice in December 2000 of the Future of Europe debate. The reform of EU governance was seen as a requisite part of the broader debate on Europe’s future. Both debates were an attempt by the EU to address the widely perceived problem that the Union was suffering from a legitimacy deficit. Part of the problem was the growing disillusionment with the political process in general and the EU in particular, as evidenced by declining levels of electoral turnout at successive European elections, and public perception of Europe as too remote, too bureaucratic and incomprehensible. For legitimacy to exist in any meaningful sense, the EU had to be able to point to clear and overt popular acceptance of its right to exercise governance over an expanding range of policy areas that were once the legislative competences of the national and/or the regional level.46 Such concerns as these underlined the need for the Union to consider ways in which the EU and its institutions could be brought closer to the citizens. In its White Paper, the Commission promoted a number of core principles of ‘good governance’—accountability, transparency, participation, effectiveness and subsidiarity. It further proposed opening up the policy-making process to enable greater public involvement in the shaping and delivering of policy. Importantly, the Commission considered that promoting new forms of governance was not the sole responsibility of the EU institutions, but was also the responsibility of all levels of public authority. In short, the underlying thrust of the Commission’s consultation exercise was to promote a transparency of governance to be delivered at all levels of the polity, including at the sub-state level. During its seven month inquiry into the governance of the EU, the European Committee heard evidence from a range of bodies, including the Committee of the Regions, the European Commission, Members of the European Parliament (MEPs), the Convention of Scottish Local Authorities (COSLA), the then Deputy Minister of the Scottish Executive (Jim Wallace), two Westminster MPs (Richard Spring and Angus Robertson) and the then UK Minister for Europe, the Rt Hon Peter Hain, MP. Indeed, this was the first time that a UK government minister had addressed a Committee in the Scottish Parliament. While the main focus of the Committee’s questioning centred on its consideration of new systems of governance within the EU and the future of Europe, the terms of reference of the inquiry also covered the examination of domestic processes. Over time, it was this issue that began to preoccupy the minds of Members and dominate discussions. The opportunity to examine the systems and processes of UKEU governance within Scotland and the UK was seized by Members, with a view to considering both how to improve relations between the Scottish Parliament, 45 46

COM (01) 428. McLeod note 15 above.

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80 Caitríona Carter and Aileen McLeod the Scottish Executive and the EU institutions, and how to improve parliamentary scrutiny and accountability of the Executive and the EU. Running through all these discussions was a clear focus on the principle of transparency: For us, the issues of openness and transparency, both within the EU and within the internal UK systems for handling EC/EU legislation, are the key.47

Significantly, the new language of transparency enabled the purpose of scrutiny to be re-constructed, with Members starting to question the Committee’s scrutiny role on grounds of openness. Frustrations were voiced by several of the Committee Members during the inquiry about the lack of information provided by the Executive to the Committee regarding its discussions with the UK government before relevant meetings of the various sectoral EU Councils and/or Council working groups. Under the provisions of the concordats and as a matter of practice most of these discussions are in private. Any minutes are not published. This causes difficulty for the Committee in scrutinising the effectiveness of the Executive in influencing the UK policy position. In addition, at this stage, the Committee also began to question the kind of information it was receiving for the purposes of the sift. In particular, it was realised that the information being sought by the Committee was perhaps not the right kind of information for a regional parliament which requires some degree of access to the inter-governmental discussions taking place within domestic processes. In particular, the Committee would require improved procedures to be developed for pre- and post-Council of the EU reporting back to parliamentary committees, whilst still safeguarding the need for confidentiality surrounding the UK negotiating line and the detail of deliberations between the devolved administrations. These inquiries into good governance and the Future of Europe thus were key drivers in the development of thinking about the scrutiny system. The line of questioning adopted by the Committee over the course of these sessions of its inquiry revealed a strong desire by Committee Members for greater understanding of the processes of governance. The conduct of the inquiry acted as a ‘learning process’, with a genuine discussion emerging over principles of ‘good governance’. Significantly, the Committee began a process of scripting which involved a framing of CSG principles within EU level norms. The ‘moral template’ of good governance was now re-cast in terms of transparency. This new ‘tool kit’48 in the form of the language of transparency thus enabled the Committee to solve the problem of the scrutiny system, and led to a new strategy of action to be developed. Significantly, the culture of EU governance

47 European Committee, 9th report: The Governance of the European Union and the Future of Europe: What role for Scotland? Volume 1—Main Report: SPP 466, Volume 2—Evidence, Minutes and Official Report: SPP 466 (Edinburgh, Scottish Parliament, 2001), Conclusions and Recommendations, Guiding Principles, para 204. 48 Cf Swidler note 6 above.

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The Scottish Parliament and the European Union 81 was adapted into the process, with a migration of EU level norms49 affecting the Committee’s way of thinking. This new strategy of action led to a number of recommendations being made by the Committee with regard to its own operational procedures.50 This had two main outcomes. First, changes were made to the scrutiny system, which now had a clear sense of purpose: that of transparency. A new type of sift emerged based on this principle. The Committee began to sift material and publish what the EU was doing by systematically e-mailing the sift list to a number of stakeholders on a dissemination list which included bodies such as Trade Unions, employers’ organisations, think tanks, various interest groups, business, NGOs—in fact, the broad section of civic Scotland. In addition, the Committee actively sought and received an agreement from the then Deputy First Minister Jim Wallace MSP (18 April 2002) that the Executive would ‘provide the European Committee in advance of [internal UK] fora [such as the Joint Ministerial Committee] with an annotated agenda and a post-meeting report’.51 The Committee also introduced a new system of pre- and post-EU Council scrutiny during the first half of 2002. This is aimed at scrutinising the Executive’s position, views and activities both before and after Council meetings. In addition, various working procedures between the Executive and the Committee were established to enable the provision of information. The Executive now provides the Committee with an annotated agenda of each of the various Council meetings taking place (usually a few weeks in advance), which sets out the nature of the agenda and the Executive’s views on those items where it has a competence. Following the meeting of the Council, the Executive will provide the Committee with a post-Council report, detailing attendance and the discussions that took place. The Committee has a range of options at its disposal in that it can note information, ask for more written information from the Executive or invite the relevant Minister to attend the next Committee meeting for further discussion. All this information is placed in the public domain via the Parliament’s website. In so doing it reflects the Committee’s views about the need to improve the transparency of the EU and the internal Scottish and UK decision-making processes. Second, in many respects the emergence of a new template as a result of the good governance debate led to the desire for greater access of officials to the EU institutions and access to information. A cultural change can be seen within the Parliament’s own staff organisation—one which is more ‘Europeanised’. Efforts have been made by the staff organisation to increase the level of awareness and understanding of EU issues among its staff, particularly within the Directorate of Clerking and Official Report and within the Research and 49 C Radaelli, ‘The Domestic Impact of European Union Public Policy: Notes on Concepts, Methods and the Challenge of Empirical Research’ (2001) Politique Européenne (no 5) 107. 50 A McLeod, ‘Scotland’s Participation in the Future of Europe Debate—Laeken and the IGC Convention’ SPICe briefing 02/20 (Edinburgh, Scottish Parliament, 2002). 51 European and External Relations Committee note 38 above p12.

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82 Caitríona Carter and Aileen McLeod Information Group. These include: extensive in-house training on the EU provided for the clerks and the researchers; familiarisation visits to the EU institutions in Brussels; the development of a programme of short-term staff secondments to the EP; and the creation of a new European Research Specialist post in the Parliament’s research department to provide support to the work of the European Committee (as well as that of subject committees as necessary) through the co-ordination of the research effort on European matters across the research teams. Overall, 2001 saw a sea change in the development of scrutiny within the European Committee. The governance inquiry led to a strong identification of the Committee, with serious discussions of ‘ideas’ of governance. EU level norms permeated the Committee’s way of thinking and enabled a re-framing of CSG principles. Scrutiny gained a sense of purpose which was one of transparency, coupled with training of officials in European expertise and increase in research base. In short, what might be described as a ‘Scottish’ way of engaging began to emerge—markedly different from the Westminster approach.

The learned ‘ethos of action’—the Scottish Parliament Up until this point, we have focused on the institutionalisation of the European Committee and the effect this had on the operationalisation of the scrutiny system. In this section, we turn to the Parliament as a whole to explore how it too began to interpret its role as an ‘actor’ within UK-EU governance—a process which we argue was a direct result of the transparency drive operationalised within the Committee and which would involve the Parliament as an institution in the conduct of ex ante scrutiny. From 2002 onwards, a marked shift took place in the balance of efforts within the Parliament to engage with EU issues. Increased pains were taken to look at how the subject committees engaged with EU issues and to encourage the process of ‘mainstreaming’.52 Partly as a result of these continuous efforts of the European Committee—re-named the European and External Relations Committee (EERC) in 2003—to keep under review its own scrutiny functions, working procedures and processes and partly as a result of the work undertaken by Parliamentary officials, a process of mainstreaming of European affairs was embarked upon through the extension of ex ante scrutiny process to include the subject committees.53 This new approach to mainstreaming came on the back of the shift towards greater transparency and the need to open up scrutiny to 52 By virtue of the Parliament’s Standing Orders all committees of the Parliament may consider EU issues relevant to their remit. 53 This was not the first time that attempts had been made to involve the subject committees. In the very early phase of the Parliament, the European Committee had sent EU documents to subject committees but the problems that dogged the early stages of the scrutiny system meant that this whole process was not very successful at this point.

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The Scottish Parliament and the European Union 83 other committees within the Parliament. Clearly, subject committees were better placed to do this in their own subject areas, thus engaging with a broader number of actors—something which the EERC could not do acting alone. The start of the new parliamentary session in May 2003 was seen as providing the subject committees with an opportunity to recognise the European context to their work and to consider whether, how and to what extent any EU dimension could be incorporated into committee work programmes and balanced against other work commitments. Given the limit on time, the committees needed to be clear about what they wanted to achieve by scrutinising EU issues. For example, did they want simply to be informed and consulted by the Executive and to use their scrutiny function to increase the transparency of the policy process through to the implementation of European legislation in Scotland, or to be more pro-active by undertaking their own inquiries on EU issues and thus achieve transparency in this way? Although it was recognised that a move away from the ghettoisation of European affairs in the EERC was desired, this had to be reconciled with the fact that the EU scrutiny function is only one of a series of roles for the subject committees. It was therefore for them to decide on the basis of their own priorities the appropriate level of engagement with EU issues. This notwithstanding, officials sought to encourage the committees’ engagement on EU issues through raising awareness of the European dimension. For example, SPICe research published a series of briefing papers which identified the EU issues of potential interest and relevance to the committees.54 The clerking teams also produced a series of legacy papers which considered amongst other aspects how the subject committee could improve its European scrutiny in the subject area. These documents were to form the basis of discussions by subject committees during their ‘away days’.55 In short, the Parliament embarked on a learning process—as a Parliament—in terms of scrutiny in EU affairs. This time, it was a learning process clearly driven by officials. Although engagement by the subject committees has been mixed, it would still be fair to say that the uptake of EU issues is greater in the second parliamentary session and that the process of mainstreaming is beginning to work. While much of the drive behind this process is down to the role played by the officials, nothing can happen without the political support and agreement of the Committee, not least the Convener. In the case of the Environment and Rural Development Committee (ERDC), the new Convener, Sarah Boyack MSP (Labour), had 54 SPICe research also published for the first time a briefing paper on the role of the Scottish Parliament in relation to European matters. This outlined the legal basis for the Parliament’s engagement with the EU and discussed various ways in which the Parliament can play a role in the scrutiny of European developments and legislation. 55 For example, the Environment and Rural Development Committee (ERDC) received a presentation from both the Clerk of the EERC and an official in the EU Environment Commissioner’s cabinet on forthcoming EU issues of relevance to the Committee. Similarly, the two Justice Committees were briefed by the Executive’s Justice Department on its involvement in monitoring and implementing European proposals and legislation and its impact on the Scottish legal system.

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84 Caitríona Carter and Aileen McLeod previously been a member of the EERC and prior to that a former Minister of the Environment and Transport and was keen for the Committee to consider EU issues. Subsequently, the ERDC agreed to conduct an inquiry into the implementation of the domestic national waste plan and to submit its views to the EU Commission’s consultation on the Thematic Strategy for the prevention and recycling of waste. Moreover, in September 2003 the ERDC formally agreed its approach to gathering information on relevant EU issues and legislative proposals. This entails seeking written reports from the Scottish Minister prior to and after each relevant meeting of the Council of the EU; a briefing paper from the Minister on the Executive’s priorities at the beginning of each six-month Council presidency; a new commitment for the Minister to give oral evidence to the Committee every six months on the EU priorities;56 and for the Convener to seek further detailed briefings from the Minister as required. The Convener has also been requested to report on a quarterly basis to the Committee on current EU issues and forthcoming EU legislation.57 Other EU-related inquiries undertaken by the Committee include the implementation of CAP reform in Scotland. And, underlying this process is the constant support of the officials. While it could be argued that the approach adopted by the ERDC to the scrutiny of EU issues is one of the monitoring of EU developments, the two Justice Committees would appear to have adopted more of a case-study approach in terms of actively following one or two legislative proposals through the EU policy process. For example, at its meetings on 17 September and 8 October 2003, the Justice 1 Committee decided to conduct an inquiry into the Commission’s proposals relating to alternative dispute resolution in civil and commercial law proceedings,58 a forthcoming White Paper on divorce and the implementation of the Council Regulation concerning matters of parental responsibility. Members of the Justice 1 Committee are planning to travel to Brussels in autumn 2004 to meet with key contacts in the Commission, the Council, the EP and UKREP to discuss EU JHA issues. The Committee has also agreed to host a seminar on EU justice and home affairs issues later on in 2004. The aims of the seminar are to inform the Committee’s scrutiny of such issues, to assist the Committee in building a network of contacts, and to raise the profile of the Committee and the Parliament in their engagement on European issues. The Justice 2 Committee has also been active. At its meeting on 2 March 2004, the Justice 2 Committee received a briefing from the Executive’s Justice 56 At its meeting on 24 February 2004, the Committee heard from the Deputy Minister for Environment and Rural Development, Allan Wilson MSP on the Executive’s priorities under the Irish Presidency. This was the first time a subject committee had taken oral evidence on the Executive’s EU priorities of relevance to the areas covered by the committee’s remit. 57 The Committee has so far considered two such quarterly updates—the first was considered by the Committee at its meeting on 3 December 203 and the second on 21 April 2004. 58 The Committee responded to the Commission Green Paper in December 2003 following its videoconference with the Commission official responsible for the dossier in Brussels. In June 2004 the Committee considered the Commission’s preliminary draft legislative text that was published in early April.

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The Scottish Parliament and the European Union 85 Department on its priorities under the Irish Presidency of the EU Council and considered a paper on how it could scrutinise and monitor the Executive’s work on EU JHA issues. The Committee agreed to consider two forthcoming Commission green papers on the approximation, recognition and enforcement of criminal penalties and alternatives to pre-trial detention as a Framework Decision on Procedural Rights. Importantly, the EERC has played a strong role in the process of mainstreaming guiding the subject committees in the interpretation of their scrutiny. To support the efforts undertaken by the subject committees, the EERC produced committee guidance setting out a new framework for facilitating a clearer understanding of the respective roles of subject committees. The guidance covered improved exchange of information and closer working together to minimise duplication of effort. The guidance also provided the committees with ideas and examples of good practice. It was further proposed that the new framework be built on an understanding that EU matters would be a shared task of both the EERC and the subject committees. Running parallel to this was another level of discussions significant to understanding the change of approach taking place within the Parliament at this stage. Questions were being asked about the purpose of mainstreaming, what was anticipated in terms of achievement in scrutiny, and the role that staff could play to support these initiatives. In November 2003, the Chief Executive established a Europe Group, composed of officials, to examine these very issues. Significantly, at the first meeting of the Group—a staff Working Group—the discussion focused solely on competing interpretations of the inherited ‘model of action’ for the Scottish Parliament in EU affairs, and with reference to the instruments of devolution—the White Paper, the Scotland Act, the concordats, the CSG report and the Standing Orders. The central and stated aim of this meeting was to achieve clarity as to where the Parliament ‘fitted’ in terms of the inherited template of the devolution settlement. This was viewed as a turning point as regards defining the role of the Parliament as a whole in European affairs (and not the role of the EERC). Arguably, the Europe Group will have a broader role to play in interpreting the role of the Parliament in its future scrutiny methods. Proposals have been agreed to establish a working level European co-ordination group involving clerks and researchers, with a Europe Group Board to give strategic direction and review progress. The focus of attention will be on those committees with a high level of engagement (and/or relevance) with European issues to develop a more structured EU training programme for staff to provide knowledge and understanding of the European context and to actively encourage learning processes. That this Group might emerge as a strategic player in the Parliament is witnessed by the role it has already played in the establishment of the new Scottish Parliament Brussels Office. The Scottish Parliament had piloted an office in Brussels between May 2003 and April 2004 through the secondment of one member of staff to research and prepare a report outlining the options for

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86 Caitríona Carter and Aileen McLeod and practical aspects of establishing a more permanent office in Brussels. This had been one of the main recommendations of the European Committee’s 5th report of 2002. It was approved by the Scottish Parliamentary Corporate Body (SPCB) on 29 June 2004, and from the spring of 2005 a new office will be established. In summary, this period saw the beginnings of the processes of institutionalisation of Parliament as its began to interpret its role as an ‘actor’ in the scrutiny of UK-EU business. This is an on-going process, which is evolving. Two important things emerge. First, there is a now a clear departure from the inherited ‘model of action’ for the scrutiny of EU affairs and the Westminster way of doing things. This is manifest in the clear shift from the concentration of the ex ante scrutiny in the EERC to a mainstreaming of this function across the Parliament as a whole. This change in approach was facilitated by the extended application of the new and emerging template—for ‘mainstreaming’ is a ‘tool’ of EU governance, linked to both transparency of procedures and efficiency of processes. Second, whereas the learning process that took place in the EERC in 2001 could be described as a ‘passive learning’, the learning processes within the Parliament are clearly forms of ‘active learning’. The key drivers behind this process are the officials, who, along with certain Members, act as the chief ‘engineers of change’59 in the opening out of EU affairs within the Parliament. CONCLUSIONS

This chapter has explored the processes by which the Scottish Parliament has interpreted its role to define itself as a regional parliamentary ‘actor’ within the new devolved system of UK-EU governance. We show how, in the beginning, the Parliament and the European Committee struggled to define such a role. The key problem did not derive from the level of functions devolved. Indeed, the Scottish Parliament was given a wide-ranging set of powers to scrutinise EU legislation. Rather, the problem faced by the European Committee was how to interpret these functions—a problem which, we argue, arose due to the lack of a institutional cultural ‘tool kit’ which would have enabled the Committee to construct a strategy of action. This was to change, however. In 2001, the Committee embarked on a inquiry into ‘good governance’, during the course of which a particular governance frame was constructed at the meso level, and one which established a shared normative template to guide action. As we argue, discussions during this period facilitated a radical shift in thinking, with the permeation of EU level codes and norms through the regional level to shape the development of a ‘Scottish’ scrutiny system. This thinking was characterised by a focus on the principle of ‘transparency’ and led to the development of an extensive scrutiny system. Furthermore, this change of approach within the Committee enabled a 59

N Ascherson, Stone Voices—The search for Scotland (London, Granta Books, 2002), 297–98.

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The Scottish Parliament and the European Union 87 mainstreaming of the ex ante scrutiny function across the Parliament—and the emergence of the Parliament as an institutional actor within UK-EU governance. Overall, this permeation of EU level norms acted to facilitate the reframing of the inherited ‘model of action’ and allowed for the construction of a Scottish territorial template to guide both a Scottish interpretation of the scrutiny function and a shift in the principles of engagement. Specifically, the primary indicator of success at the close of the last session was to ensure ‘openness’ and ‘transparency’ of the EU policy process—a ‘sharing of power’ principle and a specific interpretation of ‘good’ governance. Ultimately, whether the Scottish Parliament is successful in achieving transparency in the domestic UK-EU governmental policy process remains to be seen. One might ask whether a change in the cultural environment of the Parliament will itself begin to shape change within the Executive. There are some early indications that this may be occurring. For example, the Executive’s European Strategy explicitly states its support for mainstreaming in the Parliament to ensure that EU business is appropriately scrutinised by the members of the subject committees that have a European element to their work. Moreover, this document further states that the Executive would ensure a mainstreaming of EU business in its own work, as well as improving co-ordination, information flows, and best practice as a means of developing a common approach to EU business. It is the next phase of engagement that will determine whether the Parliament’s learned ‘ethos of action’ will itself define an alternate ‘model of action’ for Scotland’s new institutions.

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88 Caitríona Carter and Aileen McLeod CSG Composition Members: Henry McLeish, MP, Minister of State (Chair) Professor Alice Brown Dr Campbell Christie CBE Andrew Cubie Paul Cullen, QC Keith Geddes, CBE Deidre Hutton, CBE Joyce McMillan George Reid Esther Roberton Dr Joan Stringer Jim Wallace, QC MP Canon Kenyon Wright Scottish Office Secretariat provided by the Constitution Group (6 officials) Remit: to bring together views on and consider the operational needs and working methods of the Scottish Parliament. To develop proposals for the rules of procedures and Standing Orders which the Parliament might be invited to adopt. To prepare a report to the Secretary of State by the end of 1998, to inform the preparation of draft Standing Orders.

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5 The Case of the Åland Islands— Regional Autonomy versus the European Union of States NIILO JÄÄSKINEN

INTRODUCTION

T

HE EUROPEAN UNION is constitutionally a Union between Member States, and arguably between their peoples. The state-based character of the EU was bluntly expressed by the European Court in its judgment in Région Wallonne v Commission: ‘It is not possible for the European Communities to comprise a greater number of Member States than the number of States between which they were established.’1 The Åland Islands is the only autonomous region of Finland.2 Like 71 other autonomous regions and federated states spread across eight Member States, Åland is obliged to implement Community legislation falling within its competence without having direct Community law-based access to decision-making processes and adjudication at the EU level. However, among these regions Åland is in a unique position in that it was able to choose between remaining outside the Union or becoming part of it. The Åland Legislative Assembly gave, after a separate regional referendum, its assent to the application of the Community Treaties to the Åland Islands in 1994. Participation in the process of EU integration leads to various political, constitutional and administrative problems in relations between the central state and the autonomous regions. These problems are to a certain extent reflected at the European level. However, the possibilities of addressing these problems politically at the European level seem to be rather limited because of the large 1

Case C–95/97 Région Wallonne v Commission [1997] ECR–I–1787. Except for Åland, the role of regions in the Finnish system of governance is underdeveloped. The regions have certain tasks relating to regional development but they do not have legislative or regulatory powers. Organisationally the regions are associations of municipalities and they do not have directly elected bodies. The limited role of regions is explained by the fact that the strong local government has not wanted the development of an intermediary tier of government between it and the central state. 2

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90 Niilo Jääskinen political and constitutional differences between the Member States concerning the decentralisation of powers and the status of their ethnic and national minorities. It is possible to create certain corrective mechanisms and structures at national level that mitigate these problems. However, in this respect there seems to be a critical difference between symmetrical systems of decentralisation typical in federal constitutions and asymmetrical systems of devolution. In symmetrical systems some of the tasks exercised by the central government can be transferred to institutions representing the federated entities as a whole. The competence of the German Bundesrat to decide on Germany’s vote in the Council concerning matters falling within the competence of the Länder provides an example of this.3 On the other hand, in asymmetrical systems giving the autonomous region(s) legally binding influence in the exercise of a Member State’s competences vis-à-vis the Union seems to lead to insurmountable constitutional problems in terms of division of powers between the entity in question and the national institutions representing the Member State as a whole. In September 2002, the Finnish Prime Minister’s Office asked me to study the problems that the reforms debated at the Convention on the Future of Europe might cause to the Åland Islands and also more generally the effects of EU membership on the autonomy system. I was also asked to make recommendations for measures that could be envisaged in the context of the forthcoming Intergovernmental Conference or at the national level to address these problems. My report was finalised in January 2003.4 In this paper, the reader is first provided with some background information concerning Åland. Then I discuss the problems of interaction between a developed regional autonomy system and the state-centred EU structures. This part of the paper is based on the findings of my above-mentioned report.

DEVELOPMENT AND CONTENTS OF ÅLAND’S AUTONOMY

The development of the special status of the Åland Islands5 The archipelago of Åland is situated in the Baltic between Sweden and Finland. Åland consists of more than 6,500 islands. Only about 60 of them are inhabited all the year round. Nine-tenths of the island’s 25,000 inhabitants live on the

3

See more fully the contribution of P Müller-Graff to this volume. N Jääskinen, EU:s behörighet och Åland. Utredningsman Niilo Jääskinen utredning. Statsrådets kanslis publikationsserie 7/2003 (Helsinki 2003). 5 For a modern collection of articles concerning the legal position of Åland see L Hannikainen and F Horn (eds), Autonomy and Demilitarisation in International Law: The Åland Islands in a Changing Europe (The Hague, Kluwer Law International, 1997). On Åland’s position in the EU see also V Stapper, Europäische Mikrostaaten und autonome Territorien im Rahmen der EG (BadenBaden, Nomos, 1999), 154–71. 4

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The Case of the Åland Islands 91 largest island, mainland Åland. The population of Åland is 95 per cent Swedishspeaking. Thus it forms a distinct minority within the Swedish-speaking minority of Finland. The Swedes populated the Åland Islands during the early Middle Ages. After Swedish domination over the Finnish mainland was consolidated in the 13th and 14th centuries, the Åland Islands were politically, jurisdictionally and ecclesiastically considered to be part of Finland. As a consequence of the War of Finland in 1808–9 between Russia and Sweden, Finland was ceded to Russia. In the Russian empire, Finland formed an internally autonomous state with its own constitutional, legal and administrative systems inherited from Sweden. After the February Revolution of 1917 in Russia, a popular movement seeking reunification of Åland with Sweden emerged among Ålanders. After Finland had declared her independence in December 1917, a mass petition demanding reunification of Åland with Sweden was signed by a majority of the enfranchised Ålanders. However, Soviet Russia, Sweden, France and Germany recognised the independence of the Republic of Finland in January 1918 without reservations as regards her international borders. In 1919, Sweden claimed that the question of the sovereignty over Åland should be decided by the Versailles Peace Conference according to the desire of the population of Åland. Finland insisted that her sovereignty over Åland was indisputable but declared her readiness to fulfil the legitimate interests of Åland’s population by granting wide autonomy to Åland. The Finnish Parliament adopted the first Act on Autonomy of Åland in 1920. The Act aimed at the preservation of the Swedish character of the Islands by establishing a system of regional self-government. In 1920, the Peace Conference decided to refer the Åland Islands question to the newly established League of Nations. The Council of the League of Nations recognised in its resolutions of 24 and 27 June 1921 Finland’s sovereignty over the Åland Islands. Finland, however, undertook to guarantee the inhabitants of Åland the right to maintain their Swedish language, culture and customs. This arrangement was intended to prevent any changes in the ethnic character of Åland as a result of immigration from the Finnish-speaking parts of the country.6 Stipulations concerning voting rights, taxation and the acquisition of land, set out in the resolution of the League of Nations of 27 June 1921, were enacted as a separate Act on certain special provisions on the population of Åland (the 6 The Council also decided that the non-fortification regime concerning Åland Islands provided for by the Paris Peace Treaty of 1856 should be modernised. To this effect, a Convention relating to the Non-fortification and Neutralisation of the Aaland Islands was concluded between Finland, Denmark, Estonia, France, Germany, Italy, Latvia, Poland and Sweden in 1921. Soviet-Russia did not participate in the negotiations nor did it recognise the Convention. However, a bilateral agreement on the demilitarisation of Åland was concluded between the Soviet Union and Finland in October 1940, after the Winter War of 1939–1940. In the Paris Peace Treaty of 1947 between the USSR, UK and Finland it was stipulated in Article 5 that ‘The Aaland Islands shall remain demilitarised in accordance with the situation as at present existing.’ Finland considers that both the 1921 Convention and the 1940 bilateral agreement are still in force.

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92 Niilo Jääskinen Guarantee Act). The Act on Autonomy of 1920 and the Guarantee Act were given a special constitutional status and their amendments were subject to the consent of the Legislative Assembly of Åland. In 1922, the first election to the Åland Legislative Assembly was held and the regional authorities provided for in the Act on Autonomy were constituted. The legislation on Åland Autonomy was reformed in 1951. The scope of autonomy was widened and a special regional citizenship was introduced as a condition for the right to vote in local elections in Åland and for the right to acquire real property in Åland. The right of establishment in Åland was also made subject to regional citizenship. The Finnish Parliament and the Åland Legislative Assembly adopted the present Act on Autonomy in 1991.7 It strengthened autonomy and defined in detail the fields in which the legislative and administrative powers belong to Åland and the fields in which competence is exercised by the State. In the new Act satisfactory proficiency in the Swedish language has been made an additional condition for obtaining regional citizenship of Åland.

The autonomy of Åland Under the Act on Autonomy, the population of Åland is represented by a Legislative Assembly. The Åland Legislative Assembly, which consists of 30 members, is elected every four years in secret proportional ballot. The Regional Government of Åland makes proposals for regional legislation and takes care of its implementation. The Regional Government may consist of five to seven members, and its chairman bears the title Lantråd. The Legislative Assembly appoints the Regional Government after discussions between the political parties. It should be added that Åland has its own system of political parties.8 Pursuant to Section 75 of the Constitution of Finland, the specific provisions in the Act on the Autonomy of Åland govern the legislative procedure for that Act. The Act on Autonomy is not formally a Constitutional enactment. However, according to the Act itself it may be amended, repealed or exceptions to it may be made only by consistent decisions of the Parliament of Finland and the Legislative Assembly of Åland. In the Parliament of Finland the decision shall be made in the manner provided for the amendment of Constitutional Acts, and in the Åland Legislative Assembly by at least a two-thirds majority of votes cast. Consequently, from the point of view of the hierarchy of norms the Act on Autonomy can be compared to the Constitution. Politically the Act has the character of a bilateral arrangement between two parties. 7 For an unofficial translation of the Act in English see http://www.lagtinget.aland.fi/eng/ index.htm. 8 However, the Member of Finnish Parliament elected in Åland traditionally forms together with the members belonging to the Swedish Peoples Party of Finland the ‘Swedish faction’ in the Finnish parliament.

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The Case of the Åland Islands 93 The Act on Autonomy forms the basis of Åland’s autonomy. It specifies the fields in which the Åland Legislative Assembly has the right to pass laws. In other fields, general State legislation applies as elsewhere in the country. The division of legislative competences between the State and Åland is mutually exclusive. Therefore, State legislation within the competence of Åland is inapplicable even if the Åland Legislative Assembly has failed to legislate in the field in question. According to the Act on Autonomy, administrative powers follow legislative powers. As regards judicial powers, competence belongs to the State. The division of legislative competences has been carried out by enumerating exhaustively those matters within the competence of Åland (28 items) and those falling within the remit of the State (42 items). The Act on Autonomy provides for an ex ante control to ensure that Åland does not exceed its competence when enacting new legislation. The Åland Delegation, a joint body between the State and Åland, gives its opinion on regional Acts adopted by the Legislative Assembly to the Ministry of Justice. The Ministry of Justice can also obtain the opinion of the Supreme Court on the matter. This is normally the case when the Åland Delegation has considered that the Legislative Assembly has exceeded its legislative powers or when the regional Act in question deals with issues concerning which the division of competences is unsettled. The President of the Republic may not veto a regional Act without having obtained the opinion of the Supreme Court. Formally, the President is not legally bound by that opinion, though in practice she follows the advice of the Supreme Court. In practice, a conflict with Community law or Finland’s other international obligations has been considered as a reason to veto a regional Act. On the other hand, the fact that all provisions necessary to fulfil a Community or international obligation have not been included in the Act in question does not lead to the use of the right of veto.9 Under the Act on Autonomy the Supreme Court also has a specific competence to resolve conflict between Åland and State authorities concerning competence in respect of a given administrative function. Such decisions, rendered by the Supreme Court on the proposal of the Regional Government or the relevant State authority, are final and binding. The control of the legality of administrative decisions taken by the Regional Government or its subordinate authorities falls within the remit of the Supreme Administrative Court of Finland. In this context, the Court applies the Act on Autonomy and regional legislation issued pursuant to it.

9 However, in August 2003 the President of Republic vetoed a Regional Act that amends the Åland Tobacco Act, as it did not incorporate the ban on chewing snuff included in the Tobacco Directive in a complete way. It remains to be seen whether this indicates a change in the interpretation of the Act of Autonomy or whether it is a political gesture so as to indicate that the State’s patience in this issue is ending. During Finland’s EU membership Åland has been reluctant to implement this ban because of the derogation Sweden has in this respect.

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94 Niilo Jääskinen The budgetary powers of Åland are vested in the Legislative Assembly. The Legislative Assembly has competence to legislate on additional tax on income in the Islands, provisional extra income tax, trade and amusement taxes, the bases of dues levied for Åland and municipal tax. As regards other direct taxes and indirect taxation competence belongs to the Finnish State. Åland receives an annual contribution (the amount of equalisation) from State funds to cover the costs of autonomy. The amount is calculated by multiplying State budget revenues by a certain index (the basis for equalisation), which is currently 0.45 per cent. Since 1954, Åland has had a flag of its own, a blue-yellow-red Nordic cross flag. Åland has had its own postage stamps since 1984, and the current Act on Autonomy transferred postal services and broadcasting to the competence of Åland. The Ålanders hold Finnish passports, but the word ‘Åland’ is inserted in passports issued in the Åland Islands to persons having regional citizenship of Åland. A child acquires Åland’s regional citizenship at birth if the child’s father or mother possesses regional citizenship of Åland. Finnish citizens immigrating into Åland can apply for regional citizenship after five years’ continuous residence in Åland. Regional citizenship of Åland is necessary in order to: — vote and stand as candidate in elections to the Legislative Assembly and in local elections — own and hold real estate in Åland — carry on a trade or profession in Åland. Restrictions upon the right to own and hold real estate have been imposed in order to preserve land in the possession of the local population. In individual cases, the Regional Government of Åland may grant or refuse derogations from the rule that only bearers of regional citizenship may own real estate and exercise a trade or profession. Pursuant to the Act on Autonomy possessors of regional citizenship of Åland are exempted from conscription. Åland has no treaty-making competence. International agreements concluded by Finland also apply to the Åland Islands. However, if an international undertaking affects the autonomy of the Islands, including questions falling within Åland’s legislative competences, the consent of the Åland Legislative Assembly is necessary before the agreement enters into force in respect of Åland. Consequently, Finland cannot ensure in advance the entry into force of such international agreements in respect of Åland. This also applies to the treaties that transfer powers from Åland’s organs to the EU.

Åland and the process of European integration The autonomy of the Åland Islands was taken into account in the EEA Agreement in Article 126(2). Åland was also given a special status in Finland’s

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The Case of the Åland Islands 95 accession to the EU. According to Article 299 (5) of the EC Treaty, the Treaty applies to the Åland Islands in accordance with the provisions set out in Protocol No 2 to AA 1994. Pursuant to that Protocol, the Treaties apply to Åland with certain derogations.10 These derogations are, in the chapeau of the Protocol, justified with a reference to the special status that Åland enjoys under international law.11 The first derogation is that the provisions of the EC Treaty shall not preclude application of the existing provisions on restrictions on the right of natural persons not enjoying the regional citizenship of Åland and for legal persons to acquire and hold real property in Åland without permission by the competent authorities of Åland. The same applies to restrictions on the right of establishment and the right to provide services. The Åland provisions that benefit from the derogation must have been in force on 1 January 1994 and their application must take place on a non-discriminatory basis, as provided for in Article 1 of Protocol No 2 to AA 1994. This derogation secures the continued application of the restrictions relating to acquisition of real property by outsiders on the Åland Islands set out in the 1921 Resolution of the Council of the League of Nations. On the other hand, a derogation corresponding to the League of Nations guarantee concerning the restriction of the right to vote and stand as a candidate in municipal elections to locals was not incorporated in the Protocol but a declaration by the Member States of the time to that effect was included in the Final Act of TA 1994. This was Declaration No 32. The Commission considered during the preparation of Council Directive 96/30/EC,12 which amended Council Directive 94/80/EC on detailed arrangements for the exercise of the right to vote and to stand as candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals,13 that the Declaration did not necessitate amendment of the Directive. According to the Commission, the rules in force in Åland which give Community citizens, including Finnish citizens without regional citizenship of Åland, the possibility of applying for the right to vote and stand as candidates in municipal elections in Åland after two years’ residence on the Islands were compatible with the general system of the Directive. The second derogation set out in the Protocol was based on the economic necessities peculiar to the geographic situation of Åland. According to Article 2 of the Protocol, the territory of Åland is excluded from the territorial application of the EC provisions concerning harmonisation of the laws of the Member 10 In the Draft Constitutional Treaty proposed in 2003 by the Convention a similar provision would be in Art IV–4 (5). 11 The working party of IGC Legal Experts has prepared a new consolidated and updated Protocol to the EU Constitutional Treaty that would replace the existing provisions of the different Treaties and Acts of Accession. (See CIG 66/04, 4 February 2004 and CIG 66/04, 20 February 2004.) The Åland Protocol to the Act of Accession of 1994 would be replaced by identical provisions in Arts 56–58 of this new Protocol. 12 [1996] OJ L 122/14. 13 [1994] OJ L368/38.

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96 Niilo Jääskinen States on turnover taxes and on excise duties and other forms of indirect taxation. However, this exemption does not affect the Community’s own resources and it does not apply to the Community provisions relating to capital duty. Thus Åland has a fiscal status comparable to that of the French départements d’outre-mer. The derogation aimed at ensuring the continuation of tax-free sales on ferry traffic to and from Åland even after June 1999 when tax-free sales in EU internal traffic otherwise ceased, which was considered necessary to maintain transport links between this relatively isolated archipelago and Finland and Sweden. The wide legislative autonomy enjoyed by Åland entails that many Community legal acts are implemented in Åland by regional legislation, not by the general legislation of Finland. This may cause and has caused inconvenience as Finland, in cases within the remit of Åland, has neither the constitutional means to force Åland to adopt the necessary rules to implement Community obligations nor the power to impose her own legislation in Åland. However, it is Finland that is legally responsible at the Union level for the application of Community law in the territory of Åland.

ÅLAND AND EU DECISION-MAKING

The erosion of regional legislative powers There is a wide overlap between the legislative competence of Åland and Community legislative powers. Åland has legislative competence in matters including agriculture, fishing, the protection of the environment, veterinary issues, public health, culture, and audiovisual services.14 In such fields Åland is obliged to implement the relevant Community legislation. However, not being a Member State Åland has no direct access to the Council decision-making process. The Commission also seems to be rather reluctant to take into account the effects of Åland’s autonomy relating to the division of administrative functions. Therefore, it is widely felt in Åland that EU membership entails an erosion of regional legislative and administrative powers. This erosion is not compensated by a possibility of taking part in EU decision-making. Hence, power is drifting not only to the EU institutions but also to the central Finnish authorities that decide on Finland’s positions in Council.

14 From the point of view of the principle of subsidiarity it is interesting to note that so many issues which a Member State has considered as regional matters suitable to be decided by a province of 25,000 inhabitants are heavily regulated at the European level.

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The Case of the Åland Islands 97 National corrective measures In 1995, new provisions concerning Åland’s position in national decisionmaking on EU matters were added to the Act on Autonomy. One of Finland’s seats in the Committee of the Regions was reserved for Åland. It was also provided that in so far as implementation of the common policies of the EU concerns issues belonging to Åland’s competence, it is the Regional Government that decides on the necessary measures in Åland. Åland was also given the right to participate in the preparation of Finnish negotiating positions in the EU. The Regional Government has access to preparatory Commission and Council documents and it may, if and when it so chooses, take part in meetings of the various working groups between the ministries that prepare the Finnish negotiating positions. The Lantråd is entitled to be present and speak at meetings of the EU Committee of Ministers where political decisions concerning Finland’s European policies are taken at the highest political level.15 Åland may be represented in the Finnish delegation in EU preparatory meetings and in Council meetings if it so wishes and if it is possible in practice taking into account the restrictions applicable to the size of the Member State delegations in certain meetings. Åland Regional Government also has a representative in Brussels, working formally within Finland’s delegation to the EU. A reform of the Act on Autonomy that regulates the above-mentioned questions in a more detailed way was adopted in February 2004. The new provisions entered into force on 1 June 2004. However, these new provisions cannot alter the fact that in those cases where EU decision-making structures require that the Member State concerned speaks with one voice, which is the case for all legislative matters and for many matters concerning implementation and management of EU policies, Åland can at best achieve the right to be consulted by the Finnish government. In addition, according to the new provisions both parties have an obligation to negotiate in good faith in order to find coordinated positions. However, if only a single Finnish position is possible, it is the central Government that decides Finland’s standpoint at the end of the day. According to the Constitution, the Government decides on Finland’s standpoints in the EU. This decision-making takes place under a special parliamentary advance scrutiny system provided by the Constitution. Therefore, solutions that would imply that the right to decide on Finland’s vote in the Council would be shared between the State and Åland seem to be constitutionally excluded. The same applies to the formal representation of Finland in infringement proceedings and other forms of litigation before the European Court of Justice. 15 The participation of Åland authorities in Finnish EU decision-making suffers from the fact that the internal working language of the Finnish central administration is Finnish. Legally, Åland authorities are not required to understand Finnish. There is not always enough time to translate the necessary internal government documents into Swedish.

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98 Niilo Jääskinen Hence, Åland’s right to follow preparations and negotiations at the EU level and participate therein is based on Finnish legislation. From a Community law point of view, it is an example of national mercy, not of European right. To compensate for this ‘autonomy deficit’ Åland has actively participated in cooperation between European regions with legislative powers. This cooperation takes place under various formations such as CARLE between the regional parliaments, REGLEG between the regional governments and within the Committee of the Regions. In this context there have been proposals to the effect that the regions should individually or collectively be given the right to participate in Council proceedings. In my above-mentioned report, I came to the conclusion that such ideas are probably politically unrealistic taking into account the positions of such Member States as France and Spain. In practice they would also be difficult to realise, as they would lead to a situation where the institutional rights of a Member State would depend on its internal constitutional structure. Under such circumstances, finding a fair balance between centralised and decentralised Member States would be difficult. I expressed similar doubts concerning the possibility of integrating the regional legislatures into the various mechanisms of parliamentary cooperation existing in the EU, such as COSAC or the early warning system envisaged in the Convention.16 The Draft Constitutional Treaty proposed by the Convention17 shows that my doubts were justified. The proposed EU Constitution provides neither for the direct representation of regions in the institutions nor for their privileged standing before the Court of Justice. In the Protocol on the Application of the Principles of Subsidiarity and Proportionality the consultation of ‘regional parliaments with legislative powers’ has been left to be decided by each national Parliament or chamber thereof. In my report, I proposed that the Finnish government should support proposals to enhance the position of the Committee of the Regions in the institutional system, especially regarding the control of the application of the principle of subsidiarity. After all, the Committee of the Regions represents one of the ‘peer groups’ of Åland in the EU, the others being the island regions and regions with a special status in the EU. Therefore, it is likely that strengthening the position of this Committee, for example by granting it standing in the European Court in matters relating to subsidiarity, would in practice be the most suitable way of promoting the interests of Åland in the EU. According to Article III–270 (3) of the Draft EU Constitution, the Committee of the Regions would have a ‘semi-privileged’ standing before the European Court. It would have competence to bring actions against acts of the institutions for the purpose of protecting its prerogatives.

16 17

See more fully the contribution of S Weatherill to this volume. Available at http://european-convention.eu.int/bienvenue.asp?lang=EN&Content=.

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The Case of the Åland Islands 99

Challenges to administrative regional self-government Åland decides on the implementation of EU common policies in Åland, so far as the matter falls within its competence. The practical application of this rule has caused several problems. In many cases it has been possible to divide Finland into Åland and ‘the rest of the country’ for the purposes of the management of Community programmes. For example, Åland has made a separate Natura 2000 proposal and in the administration of structural funds it has been possible to treat Åland as a separate entity. However, in some cases EU legislation requires that there is only one authority in a Member State responsible for the administration of that legislation. This may entail an infringement of the national division of powers. In the case of Åland, there have been examples where Community law has indirectly allocated powers to national ministries vis-à-vis Åland that they would not have had domestically. In my opinion, administrative expediency can justify the result that in the administration of EU policies there is nationally only one authority that acts as a point of contact towards the Commission and other Member States. However, Community legislation should not require that responsibility for the practical administration or management of EU policies be vested in a single national authority. Above-mentioned problems have led to competence conflicts between the State and Åland, for example concerning the division of Finland’s fishing quotas. As I mentioned, fishing falls within Åland’s legislative competence. According to the Supreme Court, the Ministry for Agriculture has no power to decide unilaterally on the matter. Instead the quota split has to be negotiated and agreed between the two parties. However, if the national quota has already been exhausted, the Ministry has the competence to order unilaterally that fishing is ceased, with a binding effect also in relation to Åland. In the reform of the Act on Autonomy of 2004, the case law of the Supreme Court relating to these types of problems has been codified. This means that the parties have to negotiate in good faith to find a common position if Finland is able to have only one national position vis-à-vis the EU in the matter concerned. However, if an agreement is not reached, the central authorities will take the decision. In this context, it should be added that the reform legally sanctioned the existing practice according to which Åland may have direct contact with the Commission in matters within its competence. It is another question to what extent the Commission is willing to settle matters directly with the Åland authorities. The above-mentioned problems highlight the fact that internal constitutional structures of the Member States are not recognised in Community law. The Convention working group on complementarity of competences proposed that

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100 Niilo Jääskinen the current Article 6(3) EU would be supplemented with examples of what constitutes the national identity of the Member States that the Union respects. These examples would include the political and constitutional structure of Member States, including regional and local self-government and languages. In the Draft EU Constitution, regional and local self-government but not languages are mentioned as belonging to those fundamental structures that the EU shall respect.18 In the debate about the development of the EU, a formal recognition of its autonomy as an institution in Community law has been one of the main objectives of the Åland Parliament and Government. This endeavour has been satisfied in the Convention proposal. It is another question what practical consequences this provision will have at the level of EU decision-making.

Åland’s position in judicial proceedings19 In my report, I advised that the regions with legislative competences should not be given the same standing before the European Court as is currently granted to the Member States. Legally, these regions do not have a sphere of competence that is protected by Community law and that could directly be infringed by new Community legislation. In this respect, the position of the regions is different from that of the Member States. The latter possess a general exclusive competence in all matters regarding which the EU has not been attributed special powers by the Treaties. Therefore, as a matter of Community law, a piece of EU legislation cannot directly infringe the legislative remit of a region. If the Community legislator acts ultra vires, it is Member State competence that is infringed, not regional competence. National constitutional law creates the legislative and other competences of regions and the legal protection of these powers should be exclusively vested in national courts. Otherwise the European Court would be obliged to decide on internal national disputes and a Member State could receive legal protection it has not sought in the Council or in the European Court. Politically it would also be awkward if in some Member States only a single political actor could challenge the validity of new EU legal acts, but in others several actors, perhaps representing contradictory views, were to enjoy similar standing. It is a distinct issue that Member States may choose to delegate internally to the regions the power to represent them in certain infringement proceedings and court cases.20 18

Cf Art 5(1) of the Draft EU Constitution. On the position of the regions before the European Court see P Van Nuffel, ‘What’s in a Member State? Central and decentralized authorities before the Community Courts’ (2001) 38 Common Market Law Review 871, 879–900, and A Evans, ‘UK devolution and EU law’ (2003) 28 European Law Review 475, 484–90. 20 My argumentation may appear as formal or circular, even as begging the question. The point is, however, that a privileged or semi-privileged standing of the regions would imply that the 19

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The Case of the Åland Islands 101 So far as Åland is concerned, I have analysed different situations relating to Åland’s defence in infringement proceedings. Constitutionally it is evident that it is the central government that has parliamentary accountability over Finland’s positions presented to the Commission or at the European Court. However, to secure Åland’s right of defence in cases where the matter concerns its competences it is necessary to define guidelines on how Åland and the central government interact in these situations. In cases of alleged conflicts between Community law and Åland’s regional legislation, the logic of ex ante control provided by the Act on Autonomy leads to the conclusion that Finland must defend Åland’s legislation if Åland herself is of the opinion that there is no infringement. Namely, according to established practice the President of the Republic uses her right of veto if the Supreme Court finds that the regional Act in question is in conflict with Community law. Thus, if the regional Act has been approved by the President, there is a constitutional assumption that the Act does not conflict with Community law. Hence, the Government of Finland must proceed on the basis of this assumed conformity between the regional Act and Community law. It is then a practical question whether this position is defended in the European Court by the agent of Finnish Government or whether the Åland Regional Government is empowered to take care of the defence. In cases of deficient implementation the situation is different. A regional Act cannot normally be vetoed on the ground that all the provisions necessary to fulfil Finland’s international or Community obligations have not been included in it. Thus it is possible that the Finnish Government shares the view of the Commission that implementation is deficient in Åland. On the other hand, the Finnish Government has no constitutional means to compel the Åland legislator to issue the necessary regional provisions. I have advised that for the sake of legal clarity it would often be best to delegate the defence of Finland in such cases to the Åland Regional Government.

European Court would have to try as a preliminary question whether the challenged EU act touches indeed the competence of the region in question. This entails the application of the relevant national constitutional provisions by the European Court and, if the region’s standing were challenged by the Member State in question or by other regions, a decision by European Court on a purely national constitutional question. On the other hand, such standing of the regions provided for by the EU Constitution would attribute to them external powers that they might not otherwise have according to the national constitution.

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6 The German Länder: Involvement in EC/EU Law and Policy Making PETER-CHRISTIAN MÜLLER-GRAFF

INTRODUCTION

T

HE INVOLVEMENT OF the German States or Länder in EC/EU law and policy making is a permanent issue in the Federal Republic.1 Each of the 16 Länder has its own Constitution, Parliament and government and is considered and constituted as a State within the Federation.2 Some of them have a far higher population than several of the Member States of the European Union. For instance, the State of Nordrhein-Westfalen with its 18 million inhabitants is more populous than nine out of the 15 Member States prior to enlargement and, after the addition of the 10 new Member States in 2004, it ranks ahead of 18 out of 25 Member States. Certainly there are also much smaller States in Germany but none is as small as Malta or Luxembourg, 1 See in the scholarly debate eg G Ress, ‘Die Europäischen Gemeinschaften und der deutsche Föderalismus’ (1986) 549 Europäische Grundrechte-Zeitschrift; G Joass and K-D Scheurle, ‘Die bundesstaatliche Ordnung im Integrationsprozeß—unter besonderer Berücksichtigung der EuGH-Rechtsprechung und der Rechtsschutzmöglichkeiten der Länder’ (1989) 226 Europarecht; K Hailbronner, ‘Die deutschen Bundesländer in der EG’ (1990) 149 Juristenzeitung; M Zuleeg, ‘Die Stellung der Länder und Regionen im europäischen Integrationsprozeß’ (1992) 1329 Deutsches Verwaltungsblatt; M Brenner, ‘Der unitarische Bundesstaat in der Europäischen Union’ (1992) 903 Die öffentliche Verwaltung; R Scholz, ‘Europäische Union und deutscher Bundesstaat’ (1993) 818 Neue Zeitschrift für Verwaltungsrecht; M Hilf, ‘Europäische Union: Gefahr oder Chance für den Föderalismus’ (1994) 8 Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer 53; J Schwarze, ‘Kompetenzverteilung in der Europäischen Union und föderales Gleichgewicht’ (1995) 1266 Deutsches Verwaltungsblatt; G-B Oschatz, ‘Die Bundesregierung an der Kette der Länder?’ (1995) 437 Die öffentliche Verwaltung; G Roller, ‘Die Mitwirkung der deutschen Länder und der belgischen Regionen an EG-Entscheidungen’ (1998) 21 Archiv des öffentlichen Rechts 123; R Hrbek, ‘Die deutschen Länder und das Vertragswerk von Nizza’ (2001) 102 Integration. For decisions and declarations on the political level see eg ‘Beschluß der Ministerpräsidentenkonferenz vom 21–23 Oktober 1987’ in J Bauer (ed), Europa der Regionen (Berlin, Duncker and Humblot, 1991) p 13, ‘Beschluß der Ministerpräsidentenkonferenz vom 20–21 Dezember 1990’, ibid, p 117‚ ‘Bundesrat Drucksache 169/95 (Beschluß)’, 31 03 1995 (preparation for IGC 1996) ‘Bundesrat Drucksache 586/02 (Beschluß)’ 12 07 2002 (topics of the European Convention). 2 See eg W Erbguth, in M Sachs (ed), Grundgesetz, Kommentar (München, C H Beck, 1996) Art 30 no 2; as a rich survey on each of the Länder see J Hartmann (ed), Handbuch der deutschen Bundesländer, 3rd edn (Bonn, EU Verlag, 1997).

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104 Peter-Christian Müller-Graff even the small Hanseatic State of Bremen being twice as populous as the latter. Seen from an analytical viewpoint of German federalism, the main core of the role of the Länder guaranteed by the Federal Constitution are: first, the array of legislative competences, in particular in education, culture, police and local government;3 second, participation in federal legislation 4 through the second chamber, the Bundesrat, by way of consent (‘Zustimmung’) or objection (‘Einspruch’) according to Article 77 para 2 and 3 of the Grundgesetz (Federal Constitution); and third, as Reinhard Mußgnug has recently emphasised, the broad administrative competences and capacities on one hand and the considerable public budgets on the other,5 all being a consequence of the historical emergence of the Länder as autonomous States. In particular in 1871, when the Second Empire was founded, fully fledged administrative and judicial capacities of the Länder were already existent and hence charged to implement the statutes of the Reich.6 This unparalleled status and role of the Länder within a Member State of the European Union raises the question of whether it has, or should have, implications for decision-making procedures at the European level. From the viewpoint of the German Federal Constitution, this situation is not solely a topic of information, consultation or regionalism. Rather it is an issue of statehood. The following observations are structured along three lines: first, one must ask which problems are perceived concerning the role of the Länder in the development of the European Community; second, the present state of involvement of the Länder in EC/EU law and policy making must be analysed in view of both primary EC law and German federal constitutional law; and third, reform options on European level must be discussed.

PROBLEMS CONCERNING THE ROLE OF THE LÄNDER IN THE DEVELOPMENT OF THE EC

Turning first to problems concerning the role of the Länder in the development of the EC, the view of the Länder of the EU/EC may provide first clues for both the structural perceptions and the consequences.

3

See eg Erbguth note 2 above, Art 30 no 10. See eg J Lücke, in M Sachs (ed), Grundgesetz, Kommentar (München, CH Beck, 1996) Art 77 no 1; see also Arts 50, 79 para 3 of the Grundgesetz. 5 See R Mußgnug, ‘Der deutsche Bundesstaat an der Jahrtausendwende’ in P-C Müller-Graff and H Roth (eds), Recht und Rechtswissenschaft—Signaturen und Herausforderungen zum Jahrtausendbeginn (Heidelberg, C F Müller Verlag, 2000) pp 307, 323. 6 See eg E Forsthoff, Deutsche Verfassungsgeschichte der Neuzeit, 3rd edn (Stuttgart/Berlin/ Köln/Mainz, Kohlhammer, 1967) p 150. 4

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The German Länder: Involvement in EC/EU Law and Policy Making 105 Structural perceptions When the Länder look at the EC, its policy and its primary law (which can be labelled the present European Constitutional Treaty law),7 they easily recognise on the European level the existence of several elements of the federal structure with which they are familiar at home. Although the EC/EU is undoubtedly not a Federal State with own competence-competence8 several similarities are visible. First, the supremacy of the application of EC law in relation to the law of the Member States9 resembles the principle of Article 31 of the Grundgesetz that federal law overrides state law (Bundesrecht bricht Landesrecht).10 Second, the partition of legislative competences according to the principle of attributed powers found in Article 5(1) EC echoes the principle of Articles 30 and 70 of the Grundgesetz that the exertion of public powers is primarily a matter for the Länder as far as the Grundgesetz does not differently provide,11 although it has to be added that amendments to the Federal Constitution are entrusted to federal institutions,12 while amendments to the EC Treaty rest with the Member States.13 Third, the differentiation between exclusive and non-exclusive competences in Article 5(2) EC14 resembles the distinction between exclusive and concurring legislative powers as laid down in Articles 71 and 72 of the Grundgesetz (ausschließliche und konkurrierende Gesetzgebung).15 Fourth, the obligation of loyalty of the Member States as derived from Article 10 EC16 finds a partial parallel in the principle of good federal faith (Bundestreue).17 Fifth, the principle of limited conferral of powers18 together with administrative implementation of EC law to a large degree by the Member States19 shows similar features to the principle of Article 83 of the Grundgesetz, that the Länder implement federal law as their own affair as long as the Grundgesetz does not provide a different solution.20 Sixth, the participation of the Member States in 7 See eg P-C Müller-Graff, ‘Verfassungsziele der EG/EU’ in M A Dauses (ed), Handbuch des EUWirtschaftsrechts (München, CH Beck, 2000) A I no 89. 8 See Bundesverfassungsgericht C 89, 155; Müller-Graff, note 6 above, A I no 60. 9 See Case 6/64 Costa v ENEL [1964] ECR 1251. 10 See eg W März, Bundesrecht bricht Landesrecht (Berlin, Duncker and Humblot, 1989); P M Huber in M Sachs (ed), Grundgesetz-Kommentar (München, C H Beck, 1996) Art 31. 11 See eg Erbguth, note 2 above, Art 30 no 34. 12 See Art 79 of the Grundgesetz. 13 See Art 48 TEU. 14 See eg M Zuleeg, in H von der Groeben (ed), Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft, 6th edn (Baden-Baden, Nomos, 2003) Art 5 no 7, 11. 15 See eg C Degenhart in M Sachs (ed), Grundgesetz-Kommentar (München, CH Beck, 1996) Art 71, 72. 16 See eg Case 230/81 Luxembourg v Parliament [1983] ECR 255, 287; Case 52/84 Commission v Belgium [1986] ECR 89, 105; Zuleeg note 14 above, Art 10 no 1. 17 See eg H Bauer, Die Bundestreue (Tübingen, Mohr, 1992); M Sachs, in M Sachs (ed), Grundgesetz-Kommentar (München, C H Beck, 1996) Art 20 no 45. 18 See Art 5(1) EC. 19 See eg T Oppermann, Europarecht, 2nd edn (München, Verlag C H Beck, 1999) no 635. 20 See eg A Dittmann, in M Sachs (ed), Grundgesetz-Kommentar (München, 1996) Art 83 no 1, 3.

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106 Peter-Christian Müller-Graff the procedures of enacting Community law through the Council21 recalls the participation of the Länder in the procedures of adopting federal law through the Bundesrat,22 which is composed of representatives of the governments of the Länder.23 These procedures contain some parallel elements (for example the reconciliation procedure),24 but are marked by the different legal and political weight of the respective institution in relation to the respective Parliament. Still further comparable elements can easily be added, such as the necessity of common basic principles or values as laid down in Article 6 EC, which fulfil a function similar to the provision on the constitutional principles in Article 20 of the Grundgesetz; or the requirement for a uniform interpretation of Community law (Articles 220 et seq EC) which is mirrored by the functions of the federal courts as laid down in Articles 82 et seq of the Grundgesetz.

The consequences These arrangements are not legally identical, but they are in the abovementioned respects similar. This similarity may explain several phenomena of perception and structural consequences in Germany regarding the approach taken to the European Community. First, there is no significant obstacle for politicians and scholars of European law to view the Community as a federallike structured entity.25 On the contrary, Article 23 of the Grundgesetz empowers the Federal Republic to participate in the development of the European Union, which is bound not only by democratic and social principles, the rule of law and the principle of subsidiarity but also explicitly by federal principles ( föderative Grundsätze).26 Second, the understanding of German politicians and scholars concerning federalism is basically shaped not by observations of the emergence of the American federalism in the 18th century, but by their own federal experiences. In addition, the development of the EC is sometimes even perceived in a historical parallel to the emergence of German federalism in the 19th century, when the German Customs Union was established27 and gradually developed into a modern federal structure and eventually into the foundation of the Second Empire in 1871.28 Third, the Länder show a high degree of sensibility and sensitivity for the actual and potential threats of the development of the

21

See eg Arts 251, 252 EC. See note 4 above. 23 See Art 51 of the Grundgesetz. 24 See Art 77 para 2 of the Grundgesetz; Art 291 para 3–6 TEC. 25 See eg A von Bogdandy (1999) 95 Integration; P-C Müller-Graff, note 6 above, A I 76. 26 See eg R Streinz, in M Sachs (ed), Grundgesetz-Kommentar (München, CH Beck, 1996) Art 23 no 32. 27 See note 6 above, p 142. 28 See note 6 above, p 150. 22

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The German Länder: Involvement in EC/EU Law and Policy Making 107 EC to their own State status and federal role.29 This relates to the two matters considered below; on the one hand to the encroachment on their own genuine and even their concurring competences within the Federation, and on the other hand to their participation in national federal legislation and policy. Potential encroachment into areas of Länder competence The potential infringement of their legislative powers can be illustrated in the areas mentioned above. Directives on the mutual recognition of diplomas with a view to realising the free movement of services and the right of establishment (Article 47 EC)30 or student exchange programmes touch the Länder competences in education. The control of state aids31 in the case of local public banks (Sparkassen) may cause conflicts with competences in local government law. Framework decisions on police cooperation to combat crime32 can deal with matters which belong to the competences of the Länder in police law. EC rules on television and other media (the prohibition of advertising tobacco products in newspapers included)33 can clash with their competences in the area of culture. It is true that most of the European measures are not enacted without the Federal Republic’s procedural involvement in the Council. Seen more precisely, they are not adopted without the involvement of the Federal Government which basically holds the powers of foreign policy (Articles 32 para 134 and 87 para 1 of the Grundgesetz). This is the decisive handle of the Federation in European affairs. By virtue of these powers the Federation, on the basis of the consent statute according to Article 23 of the Grundgesetz, can co-decide on the concrete opening of German sovereignty not only in relation to EC measures which affect areas of federal powers but also in relation to those which deal with the competences of the Länder. In 1989, before the amendments of Maastricht, this situation sparked an internal constitutional dispute between Bavaria and the Federal Government before the Bundesverfassungsgericht (Federal Constitutional Court) in connection with the Federal Government’s planned consent to the Council Directive on the coordination of certain provisions concerning television broadcasting activities. Although the Bundesrat had claimed that the competences of the Länder (Article 30 of the Grundgesetz) were affected by that directive and, moreover, 29 See eg W Clement, Europa gestalten—nicht verwalten. Die Kompetenzordnung der Europäischen Union nach Nizza, www.whi-berlin.de/clement.htm; as a survey, R Hrbek, ‘Die deutschen Länder und das Vertragswerk von Nizza’ (2001) 102 Integration. 30 See as an overview J Tiedje and P Troberg, in H von der Groeben, note 14 above, Art 47 no 67–103. 31 Art 87(1) EC. 32 Art 34(2)(b) EU. 33 See eg P-C Müller-Graff, ‘Tabakwerbeverbot—Die EG erneut auf schmalem Grat’ (2003) issue 2, I Europäisches Wirtschafts- und Steuerrecht. 34 See eg R Streinz, note 26 above, Art 32 no 2; for the legislative powers see Art 73 of the Grundgesetz; see C Degenhart, note 15 above, Art 73 no 2.

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108 Peter-Christian Müller-Graff that the EC did not hold any power in that area, the Federal Government announced that it would support the adoption of the directive in the Council. Hence, Bavaria asked the Bundesverfassungsgericht to oblige the Federal Government to vote against the adoption. However, the Court followed the Federal Government’s argument that such an obligation would deprive the government of all possibilities of protecting the interests of the Länder by searching for compromises between the Member States.35 Länder participation in the federal law-making process A second concern of the Länder is directed at the factual diminution of the constitutionally guaranteed right of the Länder to participate in federal legislation. This phenomenon follows from the obvious power of the EC to legislate in areas which were domains of federal legislation. With the Federal Republic itself becoming part of an overarching federal-like entity and with legislative procedures shifting from the national level to the European level, the Länder find themselves increasingly excluded from the direct law-making process to which they were accustomed in the Federation. These observations lead to the second question, namely the present status of involvement of the Länder in EC law and policy making.

THE PRESENT STATUS OF INVOLVEMENT OF THE LÄNDER IN EC LAW AND POLICY MAKING UNDER PRIMARY EC LAW AND FEDERAL CONSTITUTIONAL LAW

With the present status of involvement of the Länder a distinction can be drawn between EC primary law and federal constitutional law.

EC primary law Before Maastricht Turning to the status of involvement of the Länder as laid down in present primary EC law, it is well known that before the amendments of Maastricht, self-governing national authorities were not taken into consideration at all. While, for example, the former Article 130a EC emphasised the importance of regional development, the power to take appropriate action was assigned to the Community and the Member States. In general, the internal organisation of a 35 See Bundesverfassungsgericht, judgement of April 11 1989, E 80,74; for the subsequent matter see Bundesverfassungsgericht E 92,203 (1995). 36 H P Ipsen, ‘Als Bundesstaat in der Gemeinschaft’ in E von Caemmerer, H-J Schlochauer and E Steindorff (eds), Probleme des Europäischen Rechts, Festschrift für Walter Hallstein (Frankfurt/Main, Klostermann, 1966) pp 248, 256.

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The German Länder: Involvement in EC/EU Law and Policy Making 109 Member State was of no particular interest in primary law. Hence Hans-Peter Ipsen could reasonably state that the Community was blind in this regard and coined the word ‘Länderblindheit’.36 Only in 1987 did the Prime Ministers of the Länder take the initiative to change this situation. Their demands were reinforced in the wake of reunification since the re-emergence of the Eastern Länder in their original form was considered as symbolising the triumph of federalism, thus guaranteeing freedom and diversity. In 1990, the Prime Ministers of all Länder asked for institutional representation at the European level, for a right of the Länder to bring actions before the Court of Justice and for a clear division of competence between the EC and the Member States according to the principle of subsidiarity; in short they asked for institutional, procedural and competence-related devices. The Maastricht amendments Whilst the amendments of Maastricht did not match the procedural and competence-related demands, they offered two institutional solutions: the opening of the Council for representatives of a Member State originating at subnational level and the establishment of the Committee of Regions. While the former Article 146 EC required that Member States were represented in the Council by members of the national government, the present Article 203 EC merely states that the Council shall consist of a representative of each Member State at ministerial level, authorised to commit the Government of that Member State. Hence, members of the governments of the Länder may and do act for the Federal Republic.37 The corresponding constitutional empowerment is incorporated in Article 23 paragraph 6 of the Grundgesetz. Whether this device satisfies the demands of the Länder will be discussed below. In addition, the amendments of Maastricht set up the Committee of the Regions consisting of representatives of regional and local bodies (Article 263 EC).38 For this Committee the Federal Republic has the right to propose 24 of 222 representatives. According to the internal German distribution, the Länder may nominate 21 representatives (one person for each Land, the other five rotating), while the other representatives are nominated by certain associations of local governance.39 Whether this device fulfils the demands of the Länder depends upon the role of the Committee. It is true that it provides a useful platform for political debate of the so-called ‘third level Europe’. The Committee can also deliver opinions on any question which it decides to be of regional or local interest. Moreover, 37 See eg W Hummer and W Obwexer, in R Streinz (ed), EUV/EGV (München, 2003) Art 203 EGV no 16 f. 38 See eg P-C Müller-Graff, ‘Die europäischen Regionen in der Verfassung der EG’ [1997] Integration 145; M Burgi, in R Streinz (ed), EUV/EGV (München, C H Beck, 2003) Art 263 EGV. See also the contribution of J Nergelius to this volume. 39 See D Blumenwitz, ‘Das Subsidiaritätsprinzip und die Stellung der Länder und Regionen in der Europäischen Union’ in A Randelzhofer, R Scholz and D Wilke (eds), Gedächtnisschrift für Eberhard Grabitz (München, Verlag C H Beck, 1995) p 12.

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110 Peter-Christian Müller-Graff the Council, the Commission and the European Parliament can consult the Committee on legislative processes. In some cases consultation is even mandatory (education, culture, health, trans-European networks, economic and social cohesion, employment, social policy, environment, vocational training and transport). The amendments of Nice strengthened the Committee by the requirement that the representatives either hold a regional or local authority electoral mandate or are politically accountable to an elected assembly. However, the role of the Committee is still very limited. First, the Committee remains dependent on the Council appointing its members.40 Second, it has an advisory status only41—and there is still uncertainty as to the legal consequences if a mandatory consultation has not taken place.42 Third, the variety of representatives of regional as well as local authorities—comprising Prime Ministers of the biggest Länder as well as mayors or other local representatives from Greek or Luxembourg cities—shows that there is no homogeneous ‘third’ level in the Union.43

Federal constitutional law Turning to the present status of the involvement of the Länder in the EC/EU law and policy making as laid down in German Federal constitutional law, the basic status of the Länder has developed into specific positions concerning the realisation of a unified Europe. Both aspects are examined in turn below. The basic status of the Länder Three characteristic aspects have to be mentioned in grasping the basic status of the Länder. First, the Länder are not the product of a decentralisation (or devolution) process. On the contrary, they founded the Federal Republic.44 After the collapse of the centralised Third Reich (a structure totally contrary to German historical tradition) the Länder appeared again, were constituted and, in 1948, initiated the preparation of a draft Constitution for a Federal Republic (Verfassungskonvent von Herrenchiemsee; Parlamentarischer Rat). This text was accepted by 10 of then 11 Länder and entered into force in 1949. Although Bavaria rejected the text, it still declared itself as part of the Federation.45 40

See Art 263(4) EC. See Art 265 EC. 42 See eg Burgi note 38 above, Art 265 EGV no 3. 43 See Müller-Graff note 38 above, 147; R van Ameln, ‘Die Entstehung des Ausschusses der Regionen’ in C Tomuschat (ed), Mitsprache der dritten Ebene in der europäischen Integration: Der Ausschuß der Regionen (Bonn, EU Verlag, 1995) p 42. See also the contribution of J Loughlin to this volume. 44 See T Maunz, Deutsches Staatsrecht, 12th edn (München, Verlag C H Beck, 1964) pp 1, 6, 9. 45 Ibid, p 11. 41

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The German Länder: Involvement in EC/EU Law and Policy Making 111 Second, as one consequence of this origin, Article 20 of the Grundgesetz states that Germany is a Federal State.46 This is the basis for all the federal ramifications as mentioned before. Third, the federal structure is not at the disposal of the ordinary constitutional procedures due to the so-called eternity clause (Ewigkeitsklausel) in Article 79 paragraph 3 of the Grundgesetz. According to that provision no constitutional amendment is permitted that abolishes the federal structure or the basic participation of the Länder in federal legislation. As a consequence, Article 79 paragraph 3 of the Grundgesetz is interpreted by most scholars as barring any development that would completely deprive the Länder or the Federation of their public power by virtue of European integration.47 The impact of the process of European integration: the chosen solution On this basis, specific positions of the Länder were inserted into the Federal Constitution in view of the development of the European Union. In order to strengthen the guarantee clause of the federal structure, this amendment aimed at linking the external action of the Federal Government to the internal partition of powers. The result is a differentiated new provision, which, as will be explored in the following sub-section, does not seem to settle the case. The substantial content of paragraph 1 of the new Article 23 of the Grundgesetz has already been mentioned, in particular that the participation of the Federal Republic requires the Union to be bound by the principles of democracy and subsidiarity, the rule of law, social and federal principles and a level of protection of human rights which is equivalent to the guarantees of the Grundgesetz. In view of the role of the Länder, elaborate rules distinguish between the creation of primary law on the one hand and the law and policy making of European institutions on the other. As far as primary law is concerned, any so-called transfer of power to the Union (more precisely, any opening up of the sovereignty shield of the Federal Republic and, by that, their States) is consequently subject to the consent of the Bundesrat, independent of a further inquiry into whether powers at the federal level or at the state level are concerned. At the same time, a link is established to the eternity clause of Article 79 paragraph 3 of the Grundgesetz in the way that no substantive change of the Grundgesetz is permitted which overcomes the fundamental principles of the federal structure and the participation of the Länder in federal legislation in principle (‘grundsätzliche Mitwirkung der Länder bei der Gesetzgebung’). However, it is unclear how this can be factually guaranteed in view of the shift of legislation from the federal level to the European level. 46 See eg M Sachs, in M Sachs (ed), Grundgesetz-Kommentar (München, C H Beck, 1996) Art 20 no 34. 47 See eg Streinz note 26 above, Art 23 no 84.

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112 Peter-Christian Müller-Graff As to the law and policy making of the institutions of the Community, Article 23 paragraph 2 of the Grundgesetz stipulates that the Länder participate through the Bundesrat. The Federal Government’s general duty is comprehensively to inform the Bundesrat as soon as possible about matters of the Union.48 In addition, the Federal Government has generally to consult the Bundesrat before taking part in the adoption of European legislation.49 On this basis a differentiated constitutional system is set up which corresponds to the internal division of powers.50 The opinion delivered by the Bundesrat has different legal consequences, which reasonably depends upon the category of power at stake (exclusive or other federal power; ‘predominant’ or exclusive power of the Länder). If an EU measure concerns the field of exclusive federal powers, the statement of the Bundesrat simply has to be taken into account by the Federal Government, but is not binding on it.51 As a consequence it may thus present another point of view at EU level. If an EU measure ‘predominantly’ (‘im Schwerpunkt’) concerns the field of legislative and administrative powers of the Länder, the statement of the Bundesrat has to be decisively taken into account (‘maßgeblich zu berücksichtigen’) without prejudicing the federal responsibility for the entire republic (‘die gesamtstaatliche Verantwortung des Bundes (ist) zu wahren’). It is disputed whether the statement of the Bundesrat can even become binding upon the Federal Government.52 As the Act of Coordination between the Federal Government and the Länder in EU (provisions of non-constitutional nature) matters points out (§ 5 para 2 sentence 3), in case of disagreement between the Federal Government and the Bundesrat, an arbitration procedure takes place in which a compromise is sought. If no such compromise is found, the original Bundesrat opinion becomes binding if it is affirmed by a two-thirds majority. The same applies for EU projects on the basis of Article 308 EC (§ 5 para 3). In addition, if an EU measure ‘predominantly’ concerns the field of the exclusive legislative competences of the Länder, the Federal Government shall transfer the right to represent the Federal Republic on the EU level to a representative of the Länder.53 In cases of EU measures concerning concurring legislative powers (ie the Länder may act until the federal legislator acts upon the assumption that there is a need for uniform federal regulation)54 a distinction should be drawn. If the 48

See Art 23 para 2, sentence 2 of the Grundgesetz. See Art 23 para 3 of the Grundgesetz. 50 See Art 23 paras 4–6 of the Grundgesetz. 51 See eg Streinz note 26 above, Art 23 no 105. 52 The formulations in the literature on constitutional law vary in this respect: eg higher degree of authority (‘höherer Bindungsgrad’), primacy over a conflicting opinion of the Bundestag (‘Vorrang’), decisive word (‘Letztentscheidungsrecht’ des Bundesrates). However, assuming a strict binding force would contradict the meaning of ‘to take into account’ (‘zu berücksichtigen’); see Streinz note 26 above, Art 23 no 110. 53 See Art 23 para 6 of the Grundgesetz. 54 See Art 72 para 2 of the Grundgesetz; P König, ‘Beginn der Sperrwirkung für die Länder bei konkurrierender Gesetzgebung’ (1973) 1825 Neue Juristische Wochenschrift. 49

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The German Länder: Involvement in EC/EU Law and Policy Making 113 Federal Government has already occupied the field or could occupy the field, because there is a need for uniform regulation, the Bundesrat statement has the same moderate weight as in the field of exclusive federal powers; it merely has to be taken into account. If, however, there is no need for federal action, the case is dealt with in a similar fashion to one of legislative or administrative powers of the Länder: the statement of the Bundesrat has to be decisively (‘maßgeblich’) taken into account. The impact of the process of European integration: the solution questioned The question at hand is whether this system settles the case. Two shortcomings are evident. First, the safeguards provided for the Länder are mainly procedural in nature (except the representation in the Council). Concerning the creation of European primary law Article 23 of the Grundgesetz does not guarantee any specific legislative area for the Länder apart from the—never exactly defined—‘traditional state domains’ protected under the eternity clause. This is one of the reasons why a clear division of competence between the Member States and the EC/EU became one of the main demands of the Länder for the European Convention.55 In relation to EC law and policy making, doubts as to what exactly is meant by the notion of exclusive legislative competences of the Länder and by the notion of ‘predominant weight’ (im Schwerpunkt) for the legislative powers of the Länder, their administration and their administrative procedures were mainly solved in favour of the Federal Government’s external responsibilities. For example, when the new SOCRATES programme was planned, there was considerable debate about whether this ‘predominantly’ concerned the powers of the Länder in the cultural field. The Bundesrat, thinking it did, named a representative of the Länder to act on behalf of the Federal Government in the Council. However, the Federal Government disagreed and unilaterally imposed its position due to the lack of an arbitration procedure for such a dispute. Until now the Conference of the so-called Europaminister of the Länder holds the position that it is generally willing to settle this kind of dispute outside the Bundesverfassungsgericht.56 But this may change since it is at risk of regularly leaving the named representative of the Länder outside the Council in cases of disagreement with the Federal Government. However, the aspect of external responsibility has been taken up by the Bundesverfassungsgericht when holding that the Federal Government may ignore the opinion of the Bundesrat as long as it can refer to the settled case law of the European Court of Justice.57 A second problem can be seen in the lack of protection of the Länder in their individual capacity. A Land is only represented in the Bundesrat in which it can 55 56 57

See note 29 above. See Decision of the 16th Europaministerkonferenz (27/02/1997) TOP 2 no 3. See Bundesverfassungsgericht E 92 pp 203, 242.

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114 Peter-Christian Müller-Graff try to find a majority to support its position. The Bundesrat, however, is not a coordinative body of the Länder. It remains a federal body, which also has to respect federal interests.58 This implies in Article 23 of the Grundgesetz that in order to become binding, a statement of the Bundesrat—though affirmed by a two-thirds majority in the arbitration procedure—still has to comply with the responsibility of the Federation in terms of integration, foreign affairs and defence policy.59 The same applies in the case in which a representative of the Länder negotiates on behalf of Germany at EU level according to Article 23 paragraph 6 of the Grundgesetz. The representative has to act in compliance with federal responsibilities and under the participation of and in coordination with the Federal Government. REFORM OPTIONS AT THE EUROPEAN LEVEL

In view of the shortcomings of the present situation as seen by the Länder, one may ask whether reform options are available at the European level. Again one can distinguish between competence-related, institutional and procedural options.

Competence-related reform options Concerning competence-related options it is well known that the Länder favour the establishment of a clear catalogue of competences60 thereby protecting their traditional areas of legislation and administration. However, this approach is easily in danger of conflicting with the requirements of the functional marketrelevant powers of the EC61 which are indispensable for the basic concept of integration. In view of this objective, the consequence is that the Convention has taken up neither this proposal nor the proposal of the Länder to abolish the core of the present Article 308 EC. In addition it has to be taken into consideration that to fix the national structure of the vertical distribution of powers by European primary law would deprive the Member States of constitutional autonomy in this internal issue. Different from this primary law competence order option is the competencerelated principle of subsidiarity in respect of conferral of powers to the EC. In this regard it is basically a question of national law and policies as laid down in Article 23 of the Grundgesetz and a yardstick of whether a proposed primary law amendment can be ratified in accordance with this provision. 58 See eg H H Klein, ‘Der Bundesrat der Bundesrepublik Deutschland’ (1983) 329 Archiv des öffentlichen Rechts 108; R Herzog, ‘Der Bundesrat’, in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts, Band 2 (Heidelberg, 1998) § 44, p 267. 59 Similarly Streinz note 26 above, Art 23 no 110. 60 See note 29 above. 61 In particular Arts 94, 95 EC. See also the contribution of S Weatherill to this volume.

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The German Länder: Involvement in EC/EU Law and Policy Making 115 Institutional reform options Concerning institutional options, several devices have been proposed by different sources: in particular the strengthening of the Committee of the Regions and the establishment of special institutions. Strengthening the Committee of the Regions The idea of strengthening the Committee of the Regions implies the objective of overcoming its purely advisory status: for example, by granting a binding effect to its opinions; the insertion of a suspensive veto in cases in which consultation is mandatory and the legislation has a financial impact on regional and local authorities; recognition of the Committee of the Regions as an institution; and a right for the Committee similar to that of the European Parliament in the cooperation procedure of Article 252 EC. The main problem in these proposals is the inherent increase in complexity; in particular the democratic requirement of proportional legitimacy of a Committee which surpasses an advisory status is difficult to solve. The institutional option runs contrary to the post-Nice objective of simplification. The establishment of special institutions The same is true for the setting up of special institutions to guarantee respect for the principle of subsidiarity. The establishment of a second Chamber of the European Parliament which would consist of regional representatives seems to be a monstrosity and neither feasibly nor convincingly conceived as a means to guarantee proportional democratic legitimacy. In addition it would collaterally damage the authority of the directly elected European Parliament. The establishment of a special court for disputes on competences (‘Kompetenzgericht’) raises similar concerns. It would be difficult to conceive it in a reasonable relation to the existing European judiciary, since competenceissues commonly do not arise in an isolated way but are entangled in questions of application and interpretation of substantive law. A separate court for disputes on competences would also add institutional complexity to the EC and would, moreover, collaterally damage the role and authority of the European Court of Justice.

Procedural reform options Such consequences can be avoided by rather moderate procedural reform options, which are limited to the existing institutional framework.

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116 Peter-Christian Müller-Graff The early-warning system which has been given priority by the Convention62 can serve as a moderate but efficient device. The Commission would be obliged to pre-inform national Parliaments about new initiatives. By that procedure the Bundesrat would get early information and any Land would get a chance to express its views to the Commission prior to the release of an official proposal. A second procedural device which would fit into the European institutional system is the attribution of the right to bring actions before the European judiciary to regions with legislative powers on the ground of an alleged violation of the subsidiarity principle. So far, the procedural rights of regions at the EU level are limited to those of any ‘legal person’ to institute proceedings ‘against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’ pursuant to Article 230(4) EC.63 This means that the Länder do not have privileged standing. Since the decision of the European Court in the Wallonian Region case, it is clear that a regional authority may not even pursue proceedings on behalf of the Member State if it has taken over the relevant federal responsibilities.64 In scholarly literature arguments have been developed which hold that the jurisprudence concerning the limited privileged standing of the European Parliament should be applied to the Länder as well.65 A third procedural device can be conceived which could strengthen the interests of the Länder. It can be drawn from the phenomenon of a double-layer federal structure for federal Member States within the European Union. Community law could build on the federal requirements of a Member State. In other words: Community law could bind the validity of the voting of a Member State in the Council to the fulfilment of the national constitutional requirements concerning the internal national division of powers. By that, Community law would not intermingle with national rules, but would support the role of selfgoverning regional authorities according to national law. By the same token it would also give the regional authorities some clout in their internal power debates, since a national government would run the risk of the non-validity of its vote in the Council if it did not properly respect the internal powers of the self-governing authorities in advance.

62 See Protocol on the Role of National Parliaments in the European Union: Protocol on the Application of the Principles of Subsidiarity and Proportionality. See also the contribution of S Weatherill to this volume. 63 Cases 62 and 72/87 Exécutif regional wallon v Commission [1988] ECR 1573; see M Mulert, Die deutschen Bundesländer vor dem EuGH (Berlin, Dunker and Humblot, 1996) pp 47 ff; for a general analysis see P van Nuffel, ‘What’s in a Member State? Central and Decentralized Authorities Before the Community Courts’ (2001) 871 Common Market Law Review 38. 64 Case C–95/97 Wallonian Region v Commission [1997] ECR I–1789. For different opinions see M Mulert note 63 above p 68 and A Bleckmann, ‘Der Vertrag über die Europäische Union. Eine Einführung’ (1992) Deutsches Verwaltungsblatt 335, 338. 65 See Mulert note 63 above pp 70, 142.

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The German Länder: Involvement in EC/EU Law and Policy Making 117

CONCLUSION

It seems that there is no easy solution available for regional authorities that can be taken from the national federal level to the European level of a double-layer federal structure. Compensation for the loss of influence on national federal legislation has to be taken care of, in particular by national constitutional law, and could be supported by EC law. In view of the competences held by the Länder one can add that the cultural, economic and political diversity and the internal tolerance of diversity guaranteed by the German federal system suggest that centralisation and uniformity at the European level will need to be limited in order to avoid conflict. The more regional powers (eg education, culture, regional development) are respected by EC policies and EC law the less the Länder can criticise. This could develop into a substantive core of obligations respecting national identity and of loyalty of the EC towards its Member States, which could stabilise the framework of European integration in the future.

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7 The Committee of the Regions Today and in the Future—A Critical Overview JOAKIM NERGELIUS

INTRODUCTION AND BACKGROUND

I

N THIS SHORT paper, I intend to give a somewhat critical though not entirely pessimistic estimation of how the Committee of the Regions (CoR) is functioning today, within the overall institutional system of the EU. This is mainly based on personal experience1 but also to a certain degree on legal analysis. After that, some attention will be paid to the proposals of the European Convention, as far as the position of the Committee is concerned. Finally, a few words will be said about enlargement of the EU and what it may mean for the Committee in the future. As a general background, it may be noted that of the fifteen Member States of the EU as it was constituted prior to May 2004, three, namely Austria, Belgium and Germany, are formally federal states, according to their constitutions. Spain is not formally a federal state, but works in many respects in exactly the same way, with autonomous and independent regions who may even have legislative powers of their own.2 Finally, it should be mentioned that a constitutional revision has been under consideration for quite some time by the Italian Parliament, according to which Italy too will be a federal state. It seems likely that this proposal will at some time in the near future be approved by both chambers of the parliament. What is or what constitutes a federal state? International doctrine on this topic is vast, but the main or most basic definition is perhaps that the various states (or Länder, as they are called in Germany) have a legislative authority and competence of their own. This competence may then of course vary; in the United States, for example, it is probably bigger or wider than in Austria, but the basic requirement is still that the legislative authority is divided between the federation and the states (preferably in the constitutional text itself). It may be noted that such a clear division of competences, listed in the basic treaties or 1 2

The author worked at the CoR in 2002 and 2003. See more fully the contribution of J Bengoetxea to this volume.

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120 Joakim Nergelius constitutional texts, has never existed within the European Union; nor was it proposed in the Draft Treaty proposed by the Convention in 2003, whose model for addressing this issue was adopted by the Heads of State and government in June 2004.3 It should also be noted that while this is a basic requirement for a federal state, the opposite situation does not hold true. In other words, there are a number of very independent regions with legislative powers throughout Europe that do not form part of federal states. From a Finnish or Swedish perspective, the Åland Islands are a very clear example of this.4 In relation to this topic, a few words should also be said about the general development concerning regionalisation within the EU. It may be noted that the five states mentioned above are all very active within the Committee of the Regions where, often represented by important State Presidents or Governors, they have argued consistently for further regionalisation in terms of increased use of the principle of subsidiarity, trans-national cooperation, more regional instead of national power and so on. However, it must also be noted that some other Member States, with a long tradition as centralised nation-states, have been heavily affected by different kinds of regionalisation in the last decade(s). This is notably the case for France, Sweden and the United Kingdom. In France, the autonomy of the regions has been gradually increasing ever since the early 1980s, and some have now come to market themselves as culturally and historically autonomous entities (and not only producers of nice wines), attractive for tourists, as in the case of Alsace, Burgundy or Champagne. Regional self-consciousness has thus been gradually growing and this whole tendency and development was underlined by a constitutional change in 2002,5 as well as by the appointment of former regional leader in the province of Poitou-Charentes, Jean-Pierre Raffarin, as prime minister in 2002. The rather strong attention paid by media and political observers to the regional elections in the spring of 2004 may be seen as a further clear illustration of this tendency. The United Kingdom is perhaps even more interesting in this respect, since the development towards devolution has been both quick and clear ever since 1997. This was one of the promises for constitutional change launched by the Labour party in its rather ambitious constitutional reform agenda presented before the parliamentary election that year, the content of which has so far been 3

See more fully the contribution of S Weatherill to this volume. See more fully the contribution of N Jääskinen to this volume. This means that regions with legislative powers may be traditionally independent or autonomous states within federal states, like Bavaria or Catalonia, or regions with a specific status within a unitary state, like Åland or Scotland. Whereas the former form part of a state structure based on strong and independent regions with a legislative competence of their own, the latter regions have some kind of specific status which distinguishes them from other parts of the country. According to official statistics, the EU before enlargement contained no fewer than 74 regions with legislative capacity, divided among eight Member States. 5 See Arts 72–75 of the French Constitution. 4

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The Committee of the Regions Today and in the Future 121 at least partially fulfilled.6 The independent attitude and behaviour of Scotland, in many different respects, is of course the most visible effect of this process.7 In addition, the old, centralised nation-state of Sweden has, though this is less known, been affected rather a lot by various aspects of regionalisation. Since the municipalities have always been more important in Sweden than the regions, for historical reasons, this debate in the last five to ten years has mainly focused on the constitutional protection of municipal autonomy8 and what it means or how strong it really is, should the Parliament decide—as has often been the case in recent years—to diminish it. Partly as a consequence of this heated debate but partly also due to EU membership, there have been some interesting new attempts to form new patterns of regional co-operation in the last five years. This has been particularly visible in the south of Sweden (Skåne) and in the western provinces around Gothenburg, but is now also being established in some provinces in the middle of the country. It remains to be seen what this will lead to, but it is for instance a fact that not only the southern and western parts of the country but also Stockholm and provinces in the very heart of the country have now established their own regional offices in Brussels.9 In the case of Skåne, the opening of the bridge between Malmö and Copenhagen in 2000 (the longest bridge in Europe) was of course connected with great hopes of a promising regional future, with a huge potential for co-operation with Denmark, Germany and Poland instead of the traditional dependency on Stockholm. Such hopes have hitherto not been fulfilled—due in part to an evident lack of interest from the Danish side. At the same time, however, it must be stressed that a rather large number of the current Member States are quite unaffected by the whole issue of regionalisation, due to historical reasons or perhaps only a sheer lack of size. This seems to be the case, with some variations, for Ireland, Portugal, Greece, Luxembourg, Denmark, Finland and also the Netherlands, by and large. As far as the ten new Member States are concerned, only Poland seems to have the size and the historical background that creates conditions for a true, genuine interest in the development towards regionalisation.

6 I deal with this topic in J Nergelius, ‘Parliamentary Sovereignty under Attack: The British Constitution Revisited’ in N Berggren, N Karlson and J Nergelius (eds), Why Constitutions Matter (Stockholm, City University Press, 2000) pp 107–35 (which however deals mainly with the Human Rights Act 1998 and its constitutional implications). Broadly speaking, the incorporation of the European Convention on Human Rights into British national law and devolution have both been accomplished, while reform of the House of Lords and introduction of a new, proportional electoral system are both lagging behind (the latter idea may probably even be described as abandoned). 7 See more fully the contribution of C Carter and A MacLeod to this volume. 8 In particular chapter 1, article 7 of the Swedish Constitution. 9 This development should also be understood in light of the fact that the same political party seems to remain in power at the national level more or less for ever. An ascent to power at the regional or municipal level (at least in the main cities like Stockholm or Gothenburg) for the opposition parties increases their interest in regional or municipal autonomy, which is then seen as a tool for limiting the power of the Social Democrats who reign so consistently at the national level.

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122 Joakim Nergelius If regionalisation could be defined as transferring competence down, from the national to the regional level, establishing the regions as important actors in the political life of Europe and, at least in some cases, establishing a direct cooperation between regions in different countries,10 side-stepping the national government in those countries, the whole process then seems to have attracted or interested only some parts of Europe. Enlargement will probably not increase the interest (at least not until Turkey also joins the EU). On the other hand, the process so far has been too important to be neglected and has produced some important results. Where, then, does the Committee of the Regions enter into this process?

MORE ON THE COMMITTEE OF THE REGIONS

The first occasion on which the different kinds of regions were mentioned in any official EU document was probably at the so-called Laeken summit in December 2001, during the Belgian Presidency, when it was decided to appoint or convene a Convention with the task of investigating the constitutional future of the European Union. The final declaration from this summit, the Laeken Declaration,11 stated that the Committee of the Regions should be represented by six members in the Convention, with the right to take part in discussions but without right to vote. It was then also stated that those six and their alternates should represent all kinds of existing regions, which means regions with legislative competence, regions without such competence but with a clearly defined historical and cultural identity (which corresponds to the situation in France or Italy) as well as local autonomous entities, which corresponds to the Nordic municipalities. In the end, this was perhaps not fully respected, but it is still a fact that those three kinds of regions are now the main alternatives within Europe. But how come such a definition of the different kinds of regions within Europe has, as far as I can see, never been presented before? The consequence of this absence of definition, until the end of 2001, is of course that the Committee of the Regions started its activity in 1994 without a clear definition of which kinds of regions it should really represent or include.

The purpose of the Committee of the Regions This question goes to the very heart of the question of why the Committee of the Regions was established in the first place and which interests it is supposed to represent. In order to understand this, the development of and renewed interest 10 Examples of this kind of co-operation are numerous and may be found eg in the borderlines between France and Germany, Spain and Portugal or Italy and Austria. 11 Which may be found at http://europa.eu.int/futurum/documents/offtext/doc151201_en.htm.

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The Committee of the Regions Today and in the Future 123 in the principle of subsidiarity during the 1980s (when it was first mentioned in the Treaty text as a result of the amendments of the Single European Act)12 must be taken into account. The tendencies of regionalisation mentioned above and the increased and ever louder calls for greater autonomy from strong regions like Bavaria in Germany or Catalonia in Spain are also important in this respect. These and other regions (mainly the ones with legislative capacity) started to feel that they did not have an adequate political representation at the EU level. For instance, they were not entirely happy with the fact that the national minister always represented the state at the meetings of the Council of Ministers; Catalonia even managed to send its regional minister to a meeting with the Council at one point, a situation that is not as such explicitly forbidden by the EC Treaty.13 One of the main purposes of the Committee of the Regions, then, was to ensure that the regions should have a political voice of their own at the EU level. The fact that the Committee was given its existence pursuant to the Maastricht Treaty, which was signed in December 1991 and entered into force on 1 November 1993, is of course not coincidental. This was during the heyday of optimism and belief in a new Europe (so-called europhoria), characterised by new patterns according to which the regions should be crucial actors (as they were already, indeed, in some of the most important Member States). But the lack of definition of what a region really is or perhaps rather the attempt in itself to gather all the different kinds of regions together under one single roof was soon going to create problems, which would make the huge regions unhappy. Thus, within the Committee of the Regions, it was impossible to treat Bavaria, Nordrhein-Westfalen, Catalonia or Madrid, or Scotland, Åland or whatever, any differently from Irish counties or Swedish municipalities. In fact, those different kinds of units or entities are not even represented within the Committee as such, with their own voice or representatives, since the current rules (Articles 263–5 of the EC Treaty) state that the members of the Committee represent their Member States and are appointed for four (renewable) years by the Council on the proposals of those states. Since the current rules state that the biggest states like Germany and the UK have 24 members while Luxembourg has six,14 it is often argued by representatives of big Länder in Germany, like Nordrhein-Westfalen with some 18 million inhabitants, that it has fewer members within the committee than Luxembourg, a country which is hardly 12 See what was Art 130r(4) EEC, deleted by the Maastricht Treaty in favour of the more generally applicable provision now found in Art 5(2) EC. 13 Cf Art 203 EC. It may be noted, however, that in the proposal for a new Constitution, a new and clearer text is proposed in Art 23–2, aimed at prohibiting this. The new proposal says that ‘The Council of Ministers shall consist of a representative of each Member State at ministerial level who commit the Member State in question and cast its vote.’ 14 To give some idea of how the system works, Spain has 21 members, Austria, Belgium and Sweden 12, while Denmark, Finland and Ireland all have 9 members. Before enlargement, the total number of members was 222, all of whom have a political background either at the local or regional level.

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124 Joakim Nergelius characterised by regional diversity or internal disorder. Regardless of how to count, the fact that the biggest and most powerful regions are not represented directly within the Committee is undoubtedly one of the reasons why they seem to have been looking for other ways to exert influence at the EU level more or less ever since the Committee of the Regions (CoR) started its activities on 1 January 1994.15 This has been done by opening regional offices of their own as well as, in particular in the last few years, by establishing a permanent conference (REGLEG) representing the various regions with legislative power.16 As we shall see below, however, this latter kind of activity was not particularly successful in relation to the work of the Convention on the Future of Europe.

The Committee as a purely political body Before going further into the activities, structure, work and organisation of the CoR, it may be useful to point to the fact that this is a purely political body, the idea of which is that it should give its opinions above all on legislative proposals from the Commission, which are normally due to be imminently treated by the Council and/or Parliament. These opinions are somehow supposed to represent the views of the different regions throughout Europe. Thus, the Committee does not handle the regional policies of EU at all, since that is an activity entirely taken care of by the Commission. It is thus also the Commission that distributes different kinds of funds throughout Europe, which may be one of the reasons why the CoR is almost totally unaffected by the phenomenon of lobbying. Furthermore, the various local offices that different regions or cities have been establishing in Brussels during the last decades—which are in most cases of a rather impressive nature—generally do not tend to make activities directed against the CoR a top priority, but aim to promote their regions against the different EU institutions and other interested customers in general. At this point, two critical questions must be posed. First of all, is it at all possible to establish something like the ‘position of the regions’ in relation to new legislative proposals on, for example, new environmental directives, minimum standards of social security, advertising of tobacco, fulfilment of the Lisbon criteria or the EU policy on ‘e-learning’? And even if it is possible (which is somewhat doubtful), what is the impact of this opinion? How will it affect the work and the opinions of the other EU institutions, whose positions in relation to a legislative proposal are undoubtedly more important? 15 Of course, they are represented indirectly since the members proposed by the federal Member States are in fact commonly important regional presidents or mayors of cities like Madrid or Brussels, but even those are individual members with only one voice, who are not able to work for or push through the agendas of their own provinces in the work of the CoR. 16 The official name of this body, which has been convened annually since 2000, is The Conference of Presidents and Representatives of Regions with Legislative Power of the European Union.

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The Committee of the Regions Today and in the Future 125 The second question is perhaps the easier one to answer, since it seems fairly clear to me, having worked within the CoR for a year and a half, that its influence in relation to the other EU institutions is severely limited. While the Commission has been very interested in cooperating with the CoR, with whom it has signed an agreement on further co-operation,17 the Council has never shown any true interest in deepening those relations (which is of course natural if one considers the different origins and character of the two bodies). The Parliament, on the other hand, has tended to view the CoR slightly from above, somehow like a big brother in relation to an annoying younger sibling. Still, it is my impression that the CoR has become more aware of this fact in recent years and is at the moment trying to find strategies to overcome this hurdle.18 As follows from Article 265 EC, the CoR is, regardless of how or when it happens, only consulted by one of the other institutions, which means that it has no veto power whatsoever and that the opinions it may issue may only persuade and influence others by the sheer weight of their arguments. As far as the first question is concerned, then, it must of course be assumed that the internal procedures of the CoR work in a way that will facilitate the distillation of this, ‘the one and only opinion of the regions within the EU’.

The working methods of the Committee of the Regions The work of the CoR is divided into six committees, which deal respectively with sustainable development and environment, cohesion, external relations,19 education and culture, economic and social affairs and finally constitutional questions.20 Regardless of the subject or the specific circumstances under which the CoR has been consulted or chooses to issue a so-called own-initiative opinion,21 the procedure is that such an opinion is elaborated by a special rapporteur, who, together with an appointed external expert (who may be a collaborator of the rapporteur or a well-known national expert) and in close cooperation with the staff of the committee in question, prepares and writes the opinion, which is then presented at a meeting with the responsible committee. 17 The CoR is also quite often referred to in the so-called White Paper on European Governance from 2001, COM (2001) 428. 18 So far, to my knowledge no thorough scientific study exists which tries to analyse the influence that the CoR has been able to exercise through its opinions; undoubtedly, the topic could be very interesting for a young scholar, eg in political science. One of the most thorough recent comments on the CoR is provided by H-J Blanke, ‘Der Ausschuss der Regionen. Normative Ausgestaltung, politische Rolle und verwaltungsorganisatorische Infrastruktur’ EZFF Occasional Papers Nr 25, Tübingen 2002, available at http://www.uni-tuebingen.de/ezff/ocp25.html. 19 This may seem a bit strange since that is hardly a main responsibility of the regions, but it has a lot to do with preparations for enlargement in the past few years and trying to find out which are the regional mechanisms in the new Member States. 20 Each one of these has a secretariat with two administrators and a secretary. In total, the CoR has a staff of fewer than 200 persons, which makes it the smallest of all the EU institutions. 21 Cf Art 265(5) EC.

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126 Joakim Nergelius Each committee meets four or five times a year, which means that it will normally take three to four months from the appointment of the rapporteur to the discussion on the draft opinion within the committee. There, a first vote is held and there is also a possibility for all members to propose amendments (which are then also voted upon).22 If the opinion is adopted by the committee (with or without amendments), it goes on to the plenary assembly, which is also held five times a year. There, the same procedure applies, though in a larger scale; there is a possibility for every member to propose amendments and there will be votes held both on the original text and on the amendments proposed (where the majority opinion will prevail). When the opinion is finally approved in its final version, this is then ‘the opinion of all the EU regions’. Any kind of criticism against this way of working, for alleged lack of representativity, weak influence on other institutions, lack of adequacy in relation to the legislative procedure as such or whatever, should however not be directed against the CoR as a body, since it must be borne in mind that this institution is only as strong and influential as the Member States have allowed it to be. In the early 1990s, in the negotiations leading up to the Maastricht Treaty, strong regions mainly in Belgium, Germany and Spain wanted a body or a new institution which would ensure that the regions would have a voice of their own within the EU machinery, but the majority of the Member States were not (and are still not) willing to make this a very strong institution. Neither were they willing to somehow put the strong and really important regions in Europe in a stronger and privileged position within this rather weak institution, in relation to other, less important regions from countries without strong regional traditions.23 Thus, it may be said that the Member States have done their best, so far, to reduce the regional influence at the EU level. The Committee of Regions may even, through its very existence, have contributed to this.

THE COMMITTEE OF THE REGIONS AND THE EUROPEAN CONVENTION

Against the background sketched above, it is perhaps hardly surprising that some of the most important regions within the EU have taken initiatives to establish a closer co-operation between the regions with legislative powers. At one of the regular meetings of REGLEG, in Florence on 14 and 15 November 2002, the idea of giving this group of regions a special status within the EU seems to have been officially launched for the first time. A number of proposals were presented, among them that the principles of subsidiarity and proportionality 22 Each committee has 74 members, which means that all members sit in two committees. Normal majority rules apply for the voting procedure. 23 This also explains why not all the initiatives taken within the CoR by some of the strong regions have been successful; the fact that those regions are influential in their own countries or even strong actors at the general EU level does not make them more influential within the CoR.

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The Committee of the Regions Today and in the Future 127 should become binding legal obligations for the Member States and that a kind of ‘early warning-mechanism’ should apply when those principles were supposed to have been violated, which the members of the REGLEG group themselves should be able to trigger. They also wished to be consulted by the Commission whenever it presents proposals that affect the competences of the regions and to be granted the right to bring an action before the Court of Justice.24 Furthermore, they wished that regional or state (Länder) parliaments should have the same rights as national parliaments in cases where the latter, according to the draft Constitution, will have a possibility of affecting EU decisions.25 The irony of this whole situation, however, is that in the Draft Constitution,26 a number of those demands have been met—but in favour of the Committee of the Regions instead of the regions with legislative powers as an autonomous group (a fact that is more or less guaranteed to create new tensions between those regions and the CoR, should the Constitution finally be agreed upon and enter into force). The Draft Constitution was first presented on 18 July 2003. It was then dealt with by an Intergovernmental Conference, in accordance with the rules of Treaty revision in Article 48 of the EU Treaty. As is well known, the attempts of the Italian Presidency to reach an agreement on the text failed in December 2003, but negotiations started again under the Irish Presidency in the spring of 2004, with a view to reaching an agreement at the European Council summit in June. As is equally well known, this proved successful. Though quite a few changes to the text have occurred in the interim (the general content or structure of which will not be analysed here), these do not concern regionalisation or the role of the CoR. The competences and working methods of other institutions were guaranteed to attract more interest from the Member States. The CoR prepared its participation in the Convention very carefully, for instance by preparing several statements and opinions on different issues. Two reports from the Parliament in 2002 concerning division of competencies between EU and the Member States in the future (the so-called Napolitano and Lamassoure reports) undoubtedly gave important inspiration and impetus to that work behind the scenes. Given its not always very strong position in relation to the other EU institutions, the CoR has every reason to feel happy with the outcome and final result of the work of the Convention. This is not only because the principle of local and regional self-government is mentioned in Article I–5 of the proposed text,

24 It may be noted that the Parliament was in favour of this proposal at a vote in January 2003, with 268 votes for and 235 against (and 19 abstentions). Given the sometimes hostile attitude from the Parliament towards the CoR, it seems clear where those regions and REGLEG as an association could look for an ally in the future. 25 See more fully on the detail of these proposed arrangements the contribution of S Weatherill to this volume. 26 This text, with the official number CONV 850/03, is perhaps most easily found at http://european-convention.eu.int.

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128 Joakim Nergelius as one of the basic grounds for the relation between the Union and the Member States. Furthermore, the CoR, though still not formally an official EU institution, will get a clearer role as one of the Union’s so-called ‘advisory bodies’, together with the Economic and Social Committee, as follows from Article I–32.27 More interesting, however, are a few changes related to the principles of proportionality and subsidiarity, which are, as before, mentioned in a special protocol which forms an integral part of the Draft Constitution. What is now introduced or proposed is an early warning system concerning the principle of subsidiarity, according to which every national parliament will have the possibility, within six weeks from the reception of a legislative proposal from the Commission, of sending an opinion to all the concerned EU institutions and express its worries over the perception that the principle has not been respected. When such an approach has been made by a third of the national parliaments, the institutions in question may ask the Commission to review its proposal. In this situation, should no change occur in the proposal, the national parliaments may bring an action before the Court of Justice on the ground that the principle of subsidiarity has been violated, a fact which will probably bring an end to the lack of interest that the European Court has hitherto shown for the application of this principle. Now, as follows from paragraph 7 in this protocol, it is particularly interesting to note that the CoR too may bring such actions before the Court of Justice, as regards legislative acts for which the Constitution provides that it shall be consulted.28 This right to bring actions in order to protect the principle of subsidiarity should also be read together with the new, general possibility for the CoR to bring an action before the European Court. According to Article III–365(3) of the draft text, the Court of Justice shall have jurisdiction in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions ‘for the purpose of protecting their prerogatives’. Undoubtedly, this will give the CoR a general and far-reaching ability to take initiatives whenever proposals aimed at diminishing the importance of regions or regionalism and regionalisation as a process are presented. This may in fact, if correctly used, be the tool with which the CoR may lift itself from obscurity and oblivion to might and influence—though that remains to be seen and is more likely to be the topic of an interesting article some ten years from

27 In this article, it also becomes clearer than before that the CoR shall consist of local or regional politicians who ‘either hold a regional or local authority electoral mandate or are politically accountable to an elected assembly’. Their mandate is now proposed to be for five instead of four years, but it is still the Council who shall appoint them (and who shall on occasion review the rules governing the composition of the body). 28 This latter question is regulated by Art III–388 which simply states that the CoR shall be consulted ‘where the Constitution so provides and in all other cases, in particular those which concern cross-border cooperation.’

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The Committee of the Regions Today and in the Future 129 now.29 However, regardless of how it will be used in the future, this is a significant step forward for the CoR, should the draft Constitution finally enter into force.

CONCLUDING REMARKS

Despite the important changes now proposed by the Convention and largely accepted by the Heads of State and government in June 2004, the Committee of the Regions may so far, after more than ten years of existence, be said to suffer from a kind of identity crisis, since it may very clearly be asked if it is in fact able to represent the interests of the many different regions at the EU level and within the work of the EU institutions in an efficient way. It seems likely that in particular the strong regions throughout Europe, normally regions with legislative power, will continue to be unhappy with the CoR, unless of course the new possibilities brought about by the Draft Constitution are used in an efficient and strategic way, which will reinforce the position of the body. If that will not be the case, the very fact that the new prerogatives that the CoR is now being granted were originally claimed by those regions for themselves will probably not make the CoR more popular in their eyes. Enlargement as such is not likely to increase the interest in regionalisation and regional issues of the kind described here, due to a lack of interest and a weak tradition in most of the new Member States. However, this could change dramatically if Turkey joins the Union, since Turkey, which would then be by far the biggest Member State, does in fact have a very old regional tradition, dating back to the 15th century, with local assemblies, regional power distribution and so on.30 Once again: the topic looks ripe for an interesting new study in ten years’ time.

29 It may be noted that the strengthening of the position of the Parliament during the last twenty years would not have been possible without the important judgments in the 1980s where the European Court acknowledged some prerogatives for the Parliament which were then not written into the Treaty, such as the right to bring actions against other institutions and to defend itself and argue its case in such actions brought by others; see notably Case 294/83 Les Verts v Parliament [1986] ECR 339 and Case C–70/88 Parliament v Council (Chernobyl) [1990] ECR I–2041 and [1991] ECR I–4529. As far as the proposed Art III–365 is concerned, it is of course also flattering for the CoR to be mentioned alongside the ECB and the Court of Auditors, two institutions whose influence has been steadily growing in the last few years. 30 This topic was dealt with at a Swedish-Turkish conference on Turkey and EU in Istanbul in October 2002, the proceedings of which have now been published in Turkish; see I Gül and L B Tokuzlu (eds), Avrupa Birlîgi Hukuku (Istanbul, 2003).

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8 Finding a Role for the Regions in Checking the EU’s Competence STEPHEN WEATHERILL

INTRODUCTION

T

HE CENTRALISATION OF power under the auspices of the European Union is in many circumstances an entirely foreseen process, underpinned by sound arguments rooted in efficient problem-solving and suppression of State tendencies to take decisions that impose external costs. However, in other circumstances the story is of ill-considered seepage of power away from established patterns of democratic control within national political processes into the hands of the EU institutions. Despite Article 5(1) of the Treaty’s apparently reassuring claim that the EC acts only on the basis of the powers conferred on it, practice has been otherwise: competence has been prone to ‘creep’ outwards. And the exercise of competence, conditioned according to the Treaty by the principles of subsidiarity and proportionality, has in practice been subject to little constraint other than the political preferences of actors who may have a vested interest in exercising a conferred competence rather than leaving it unactivated. One should not permit the allegation of remorseless centralisation to be blown out of proportion. Particularly in recent years, techniques have emerged for safeguarding local autonomy from excessive legislative ambition at EU level. But as a general observation the EU has institutionalised an arena within which national political elites, most prominently within the Council, have an opportunity to advance policies that might have been unfeasible had they been pursued solely within a domestic context. National political actors other than the executive may find it difficult to track what is being discussed at EU level. Even if they do identify proposals which they regard as questionable from the perspective of competence they may have limited opportunity in practice to exert pressure on their representative in Council; and if they achieve an effective voice for their anxieties, even if shared by their Minister in Council, the voting rules may preclude any veto. In the Convention on the Future of Europe this flaw in the structure of EU governance was recognised, and it provoked a readiness to accommodate national Parliaments in the formal

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132 Stephen Weatherill decision-making of the EU in so far as certain matters associated with legal competence are at stake. For the majority at the Convention, the EU lawmaking process is properly infused by a direct contribution by national Parliamentary actors in the light of its capacity to act without due regard for the limits of competence and thereby to unbalance the legitimate foundations of the constitutional settlement agreed under the Treaties and authorised in each Member State according to local constitutional procedures governing the ratification of international treaties. But there are other actors in national political life who might find themselves marginalised by an improperly open-handed approach to the assertion and exercise of competence at European level—of concern within this volume are sub-national and regional political actors and institutions in the Member States. The Convention’s draft Constitution released in July 2003 offers them no special status. Nor does the text finally agreed by the Heads of State and Government in June 2004. Yet they are as likely as national Parliaments to suffer when centralisation at EU level occurs without due regard for the formal constitutional constraints established by the Treaties. Perhaps more so, since they are a step removed from the ability to exercise direct control over Ministers acting in Council. Yet at the Convention it was concluded that their involvement in checking the outward creep of EC competence should not be the subject of provision at EU level. It should be left to national systems to accommodate the aspirations of regional and sub-national Parliaments within their territory—despite the key point that it is EU membership that has created the problems in the first place. The purpose of this paper is to track how and why the Convention reached a consensus on a pattern that elevated the status of the national Parliaments in the EU lawmaking process yet refused to recognise the compelling claims of regional and sub-national actors to comparable access to make known their anxieties about competence creep. The paper is underpinned by the thesis that the Convention missed a chance to bring the EU closer to the citizen, whose allegiance to the EU and to his or her Member State may be at least matched by allegiance to his or her region or nation within a State.

THE CURRENT PERCEIVED PROBLEMS

The core objection to the current system governing competence control lies in the perception that there is a gulf between principle and practice. In principle the EC has only the powers conferred on it pursuant to the Treaty. This is made explicit by Article 5(1) EC. Moreover, competence conferred need not be used. Powers shall be exercised in accordance with the principles of subsidiarity and proportionality, as found in Articles 5(2) and 5(3) EC respectively. In practice this pattern of limited competence, exercised only where appropriate, is contaminated by an eager legislative readiness to play fast-and-loose with the constitutional limits imposed by the Treaty.

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Finding a Role for the Regions in Checking the EU’s Competence 133 Competence creep Several factors combine to explain the tendencies towards a generous reading of the scope of EC competence.1 It is in the first place pertinent to place the phenomenon of ‘creeping competence’ in a broader context. One should note that it is common for systems of multi-level governance to be characterised by an incremental drift of power towards the centre.2 Durable safeguards for local autonomy are required. The EC has long been deficient in such checks and although more recent practice has introduced significant new devices for checking competence creep it remains true that the quest for thoroughly reliable means to make real the commitment to limited competence located in Article 5(1) EC is as yet unfulfilled. The principal features that blunt the practical value of Article 5(1)’s stipulation that the EC shall operate within its Treaty-defined limits are the lack of precise or even readily accessible detailed rules governing competence in the Treaty and, in addition, the absence of vigorous institutional monitoring. The lack of precision and transparency in the current pattern of the Treaty is striking. Article 5(1)’s principled statement that the EC’s competence does not stretch beyond what is granted by the Treaty is not backed up by any clear or useful list of the nature and scope of particular sectoral competences. In order to grasp the reach of the EC’s functions, one must journey around what has memorably been labelled the ‘archipelago’ of provisions authorising EC legislative action scattered throughout the Treaty,3 adjusted and expanded on periodic Treaty revision. Even mastery of the arduous task of knowing what the Treaty provides will not solve all the riddles of competence. For example, one will learn from Article 5(2) EC that the EC enjoys a species of competence that is ‘exclusive’, but the Treaty will not enlighten the reader as to what this means nor the areas in which it applies. In fact, the nature of EC competence and its impact on 1 The literature is vast and, in parts, characterised by disagreement, or at least different points of emphasis. Cf eg J Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403; M Pollack, ‘Creeping Competence: The Expanding Agenda of the European Community’ (1994) 14 Journal of Public Policy 95; A Moravscik, The Choice for Europe (London, UCL Press, 1999); H Wallace and W Wallace, Policy-Making in the European Union (4th ed, Oxford, OUP, 2000); A Stone Sweet, W Sandholtz and N Fligstein (eds), The Institutionalisation of Europe (Oxford, OUP, 2001); Special Issue, ‘Dynamics of Formal and Informal Institutional Change in the EU’ (2003) 10 Journal of European Public Policy (Number 6). 2 For comparative inquiry pitched on the EU/US axis see eg G Bermann, ‘Proportionality and Subsidiarity’ in C Barnard and J Scott, (eds), The Law of the Single European Market: Unpacking the Premises (Oxford, Hart Publishing, 2002); S Breyer, ‘Does Federalism Make a Difference?’ [1999] Public Law 651; S Day O’Connor, ‘Altered States: Federalism and Devolution at the Real Turn of the Millennium’ (2001) 60 Cambridge Law Journal 493; K Nicolaidis and R Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford, OUP, 2001) especially Ch 3, J Donahue and M Pollack, ‘Centralization and its Discontents: The Rhythms of Federalism in the United States and the European Union’, Ch 4, D Lazer and V Mayer-Schoenberger, ‘Blueprints for Change: Devolution and Subsidiarity in the United States and the European Union’. 3 CONV 123/02 19 June 2002 p 6 (Dini).

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134 Stephen Weatherill national competence varies depending on the subject-matter at stake, but this too is an issue which is handled in a deeply unsystematic and confused manner under the current Treaty arrangements. Understanding the nature of EC competence and its effect on State competence demands analysis of Treaty provisions, secondary legislation and judicial interpretation and it is obstinately resistant to simple exposition.4 Such poorly drafted rules governing competence tend to weaken the possibility of a useful debate about whether competence is lacking in the case of a particular proposal. The opponent of action at EU level is also confronted by the strategically important absence of any rule placing defined activities off-limits the EC. As Koen Lenaerts vividly remarked ‘there simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community’.5

The main culprits: the functionally broad legal bases It is important to pin down the main culprits in the crime of competence creep. The absence of an operationally useful programme to back up the statement of limited competence made in Article 5(1) EC is particularly pertinent when one considers the two broadest legal bases found in the Treaty, Articles 95 and 308. These competences are functionally expressed, rather than sector-specific. Neither grants an unlimited competence.6 But the limits that are imposed—in short, a tie to market-making under Article 95 and a tie to the EC’s objectives under Article 308—are limits that are conspicuously loose. The legislative trackrecord suggests that the textual limits on their use have had little impact in confining the exercise of legislative power. These provisions, along with Article 94, have been driven by a long-standing readiness among the Member States acting unanimously in Council to assert a broad reach to the EC’s legislative competence. The growth of the programmes of consumer and environmental protection in the 1970s and 1980s was pursued in the name of the harmonisation programme and, in the latter case, pursuant also to (what is now) Article 308 at a time when the political will was firm, yet when the Treaty was bare of any

4 Cf A Von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: the Current Law and Proposals for its Reform’ (2002) 39 CMLRev 227, esp 239–50; G de Búrca and B de Witte, ‘The Delimitation of Powers between the EU and its Member States’, Ch 12 in A Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (Oxford, OUP, 2002); F Mayer, ‘Die Drei Dimensionen der Europäischen Kompetenzdebatte’ WHI-Paper 2/02 (Walter Hallstein Institut, http://www.whi-berlin.de); V Michel, ‘Le Défi de la repartition des compétences’ (2003) 38 Cahiers de Droit Européen 17; D Hanf and T Baumé, ‘Vers une clarification de la répartition des compétences entre l’Union et ses etats membres?’ (2003) 38 Cahiers de Droit Européen 135. 5 In ‘Constitutionalism and the Many Faces of Federalism’ (1990) 38 American Journal of Comparative Law 205. 6 Cf J Usher, ‘The Development of Community Competence’, pp 146–65, in Academy of European Law (ed), Collected Courses of the Academy of European Law, Volume II, Book 1 (The Hague, Kluwer, 1992).

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Finding a Role for the Regions in Checking the EU’s Competence 135 explicit legislative competence to act in these realms. The formal constitutional dictates of (what is now) Article 5(1) were respected by asserting that such legislative action was taken pursuant to the existing broad functionally-expressed legal bases, but it was common that no serious explanation was advanced as to how such measures fitted within the legal base governing market-making harmonisation (plus, in some cases, the predecessor to Article 308). The legislative reality was driven by the unanimous preference of the Member States to put in place a European dimension to consumer and environmental protection.7 The gulf between principle and practice in the assertion of legislative competence undermines the impression given by Article 5(1) EC of a sturdy defence of State autonomy from EC incursion beyond the limits authorised by the Treaty. Articles 95 and 308, the functionally broad legal bases, underpinned by the naked political reality that where unanimity in Council is present legislation is likely to adopted even where the constitutional pre-conditions may not obviously be satisfied, have acted as the most prominent motors of the phenomenon of competence creep. The Laeken Declaration of December 2001 duly picked out Articles 95 and 308 (alone) as explicit candidates for review at the Convention on the Future of Europe. The anxiety generated by ‘competence creep’ holds that the EU system has on occasion been exploited by executives in Council to diminish effective supervision by national Parliaments, regional entities and citizens, leading to an understandable mistrust. It is superficial to convert this perception into a general thesis that the EC has simply served to consolidate and extend the dominance of State executives over political processes in Europe, but it is necessary to take seriously the constellation of interests and procedures that has permitted outward drift in EC competence over many years.8 Neither Commission nor Parliament exerted any noticeable restraint over this process. Rather the contrary: both institutions enjoy an enhancement of their political power in consequence of competence creep. The impression that competence has become a political rather than a constitutional matter has been shaken to a degree, as the rise of qualified majority voting to replace unanimity in Council has increased the possibility that outvoted dissentients will test the view taken by the majority of the scope of legislative competence. Trespass beyond the limits of competence conferred by the Treaty is the subject of judicial control and in Tobacco Advertising—Germany v Parliament and Council 9—the Court for the first time annulled a Directive as lying beyond the competence attributed to the EC by the Treaty. So Germany, having lost the political debate, was rescued by resort to 7 On the former see S Weatherill, ‘Consumer Policy’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 1999) and on the latter see J Scott, EC Environmental Law (Harlow, Longman, 1998). Comparable trends may be tracked in the fields of labour market regulation and social policy more generally: C Barnard, EC Employment Law (2nd ed, Oxford, OUP, 2000). 8 Cf note 2 above. 9 Case C–376/98 [2000] ECR I–8419.

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136 Stephen Weatherill arguments based on the constitutional limits imposed on the EC.10 Opinion 2/94 on Accession by the EC to the ECHR11 may usefully be placed alongside Tobacco Advertising’s careful treatment of the competence to harmonise pursuant to Article 95 for it too makes explicitly plain that there are judicially policed limits to the Treaty’s functionally broad competences, in casu Article 308 (ex 235), which may not be deployed to amend the Treaty. Article 5(1)’s insistence on the principle of attributed competence is no longer solely a neglected political aspiration. However, it is far too soon to portray the Court as a consistently aggressive guardian of State rights. Tobacco Advertising was applied in both Netherlands v Parliament and Council 12 and R v Secretary of State ex parte BAT and Imperial Tobacco13—but both challenged Directives survived. Moreover, one needs only to scratch the legislative surface to reveal measures that seem questionable in the light of Tobacco Advertising yet which even subsequent to that judgment have sailed through unopposed on a wind of unanimous support in Council.14 Competence creep and the functionally expressed legal bases go hand-in-hand, and, as already foreseen by the Laeken Declaration, refining this cosy partnership provided a major task for the Convention on the Future of Europe.

Subsidiarity There is subsidiarity too. Introduced as a general principle into the Treaty with effect from 1993, on the entry into force of the Maastricht Treaty, it is now found in Article 5(2) EC. It is designed to provide a more secure grounding for debate about whether a competence which exists should be exercised. It is an invitation to think hard about choosing the best level of governance in Europe. However, it seems that in practice a decade of subsidiarity has proved relatively poor in provoking a more vigorous inquiry into the desirability of regulating at European level. In 2001 Alain Lamassoure flamboyantly informed the Scottish

10 Cf eg J Usher, ‘Annotation’ (2001) 38 CMLRev 1519; T Hervey, ‘Community and National Competence in Health after Tobacco Advertising’ (2001) 38 CMLRev 1421; D Khanna, ‘The Defeat of the European Tobacco Advertising Directive: a Blow for Health’ (2001) 20 Yearbook of European Law 113; G Tridimas and P Tridimas, ‘The European Court of Justice and the Annulment of the Tobacco Advertisement Directive’ (2002) 14 European Journal of Law & Economics 171. 11 Opinion 2/94 [1994] ECR I–1759. 12 Case C–377/98 [2001] ECR I–7079. 13 Case C–491/01 [2002] ECR I–11543. See also the (relatively generous) treatment of the scope of Art 100a EC in Cases C–465/00 et al Rechnungshof v Osterrreichischer Rundfunk et al [2003] ECR I–4989, esp paras 41–42; Case C–168/00 Simone Leitner v TUI Deutschland GmbH [2002] ECR I–2631, esp para 21. 14 For examples from different sectors see N Moloney, ‘New Frontiers in EC Capital Markets Law: From market construction to market regulation’ (2003) 40 CMLRev 809; S Weatherill, ‘The Commission’s Options for Developing EC Consumer Protection and Contract Law: Assessing the Constitutional Basis’ (2002) 13 European Business Law Review 497.

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Finding a Role for the Regions in Checking the EU’s Competence 137 Parliament that: ‘No European institution is in reality willing to comply with the principle of subsidiarity’.15 If there is political will to act, then it seems that appeal to subsidiarity will not change minds. The Commission tends to bear the brunt of criticism for perceived neglect of the virtues of subsidiarity. For example, it has been remarked that the Commission’s eagerness to explain how proposed measures conform to the dictates of subsidiarity is not matched by an equal readiness to offer examples of how subsidiarity prompted a decision not to advance a proposal.16 And despite the Commission’s recent penchant for asserting a concern to do less but to do it better,17 the legislative bottom-line offers little indication that subsidiarity has quelled expansionism.18 However, it is not the Commission alone that deserves to be placed under the microscope. The Commission’s first report on the application of the subsidiarity principle, released in 1994, included the wry remark that one cannot help observing that principle and practice are often far apart with Member States meeting within the Council often adopting positions on individual cases at variance with their respect in principle for Article 3b [now 5].19

In 2002 Commission representatives were aggressive in making the point to relevant Working Groups of the Convention that subsidiarity is supposed to be part of the daily life of all the political institutions.20 The Council’s position was the subject of helpful explanation by Jean-Claude Piris, Director General of the Council’s Legal Service, in evidence given before the Convention’s Subsidiarity Working Group. He revealed that the Service has rarely expressed doubts about compliance with the principle of subsidiarity, although he also advanced the

15 Alain Lamassoure MEP (and subsequently Conventioneer), in evidence given to the Scottish Parliament’s European Committee on 30 October 2001, http://www.scottish.parliament.uk/S1/ official_report/cttee/europe-01/eu01-1202.htm#Col1211. (SP Paper 466 The Governance of the European Union and the Future of Europe Session 1 (2001)). 16 UK Parliament—House of Commons Select Committee on European Scrutiny, Eleventh Report, 2002–03, Part 7. The Commission is not wholly guilty of this sin of omission: eg a report annexed to the Conclusions of the Presidency at the Edinburgh European Council 1992 cited three proposals withdrawn in the light of the demands of the principle of subsidiarity. 17 See on ‘Better lawmaking’ in the post-1992 climate, eg COM (97) 626, COM (98) 715; and more recently eg COM (02) 275. 18 See P Craig, ‘The Evolution of the Single Market’, Ch 1 in Barnard and Scott note 2 above for explosion of the myth that the end of 1992 heralded a dramatic decline in lawmaking. See similarly M Pollack, ‘The End of Creeping Competence? EU Policy-making since Maastricht’ (2000) 38 Journal of Common Market Studies 519; D Wyatt, ‘Subsidiarity: is it too vague to be effective as a legal principle?’, pp 86–97 in K Nicolaidis and S Weatherill (eds), Whose Europe? National Models and the Constitution of the European Union (European Studies at Oxford papers, 2003). On patterns of use of Art 308 (ex 235) over time see M Bungenberg, ‘Dynamische Integration, Art 308 und die Förderung nach dem Kompetenzkatalog’ (2000) 879 Europarecht. 19 COM (1994) 533. For similar sentiments see eg ‘Better Lawmaking—a Shared Responsibility’, COM (1998) 715. 20 For a Commission view prepared for the Working Group on Subsidiarity see WD 003—WG I 27 June 2002 (Petite) and, for the Working Group on National Parliaments, see WD 012—WG IV 12 July (Barnier). Both set out Commission practice while insisting that the responsibility is not the Commission’s alone.

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138 Stephen Weatherill view that the Council, in seeking to make drafts more flexible, spoke the language of subsidiarity without realising it.21 But most significantly he pointed out that market-making in Europe is not and cannot be a purely deregulatory activity. It demands a degree of regulatory intervention. Furthermore once Member States agree on the need for rules at EC level, the bargaining process typically involves States aiming to secure Community legislative outputs as close as possible to their own pre-existing systems, and in particular to prevent the adoption of standards of protection lower than their own. The outcome is typically cumulative, so that the Community rules bundle together a range of national approaches.22 The regulatory landscape becomes dense. The accusation is that subsidiarity, even sharpened by the Amsterdam Protocol, may have prompted wider consultation and more explicit reasoning in the legislative process, but that it is far from plain that any genuine change in institutional culture and assumption has been achieved. And this charge is not directed at the political institutions alone. The European Court is in principle plainly competent to annul acts for violation of the principles of subsidiarity and/or proportionality but here too practice is rather different. The key decision is R v Secretary of State ex parte BAT and Imperial Tobacco.23 The challenged Directive was found to fall within the permitted (post-Tobacco Advertising) scope of Article 95 and therefore it complied with Article 5(1). It was accordingly in principle susceptible to review for compliance with the principle of subsidiarity in Article 5(2), provided it fell in an area that is not within the exclusive competence of the Community. The Court decided that harmonisation pursuant to Article 95 does not entail an ‘exclusive competence to regulate economic activity on the internal market, but only a certain competence for the purpose of improving the conditions for its establishment and functioning’. So subsidiarity applies. The Court then adopted an approach which makes it hard to imagine circumstances in which a harmonisation measure will be tripped up by the demands of subsidiarity. The Directive’s objective is to eliminate the barriers raised by the differences between State laws. This objective cannot be sufficiently achieved by the Member States individually—indeed it is the variety of approaches taken that causes the problem! The Court concluded that the matter therefore called for action at Community level. It appears that the Court has neatly sustained subsidiarity as a legal principle on paper while conceding much in practice to legislative discretion. Once it is determined that a competence to establish common rules exists, the political decision to exercise that competence seems in practice immune from judicial subversion.

21

WD–004 WG I 3 July 2002 (Piris). Cf W Sandholtz and A Stone Sweet, European Integration and Supranational Governance (Oxford, OUP, 1998); N Fligstein and A Stone Sweet, ‘Constructing Polities and Markets: an Institutionalist Account of European Integration’ (2002) 107 American Journal of Sociology 1206. 23 Case C–491/01 note 13 above. 22

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Finding a Role for the Regions in Checking the EU’s Competence 139 Subsidiarity involves political judgement about whether to exercise a conferred competence and is evidently treated as far less appropriate for judicial control than the logically prior question of whether a competence is attributed by the Treaty.24 Respect for the principle of separation of powers between legislature and judiciary looms large.25 One may readily understand the Court’s reluctance to be drawn into areas of intense political controversy. It has, however, been conspicuously less cautious in investing similarly vague notions such as citizenship and effectiveness with real legal force.

The perceived problems in focus The major anxiety under the current system holds that there is a deficit in confidence about the Union’s readiness to operate within its constitutional limits, and a poor system for checking over-ambition. The current issues that are most in need of ‘fixing’ are the slippery character of the functionally broad legal bases supplied by Articles 94, 95 and 308; and the incestuous institutional context in which the subsidiarity principle is engaged and applied. The quest is to re-establish a necessary, trustworthy and trusted balance between the Union and its Member States. This matters—there is an evident thematic connection to a broader sense of citizen alienation from the complexity inherent in subjection to multiple sites of governance in the era of intensified transnational trade. If one allegation hits home hardest it is that executives in the Member States have come to dominate the process. This is where regional and sub-national Parliaments are likely to be most alarmed by the growth of centralised EU power. Their anxieties have much in common with those entertained by national Parliaments themselves. The Convention accepted the problem. And it identified the solution to lie in freshening up the EU’s institutional system by bringing in new and more critical actors who will engage in the debate about competence. But its draft Constitution, released in July 2003, draws a sharp division. It proposes that national Parliaments be elevated to a recognised status within the EU’s lawmaking process. But sub-national and regional parliaments are to be granted no special status. They are left to fight for a voice within the thickets of national political practice. The Convention’s choices in this matter were left undisturbed in the text finally agreed in June 2004. The next section sketches the choices made by the Convention, before the section that follows proceeds to explore how sub-national parliaments came to suffer this exclusion.

24 Strongly in this vein see the contribution of Piris, Legal Adviser to the Council, to the deliberations of the Subsidiarity Working Group, WD–004 WG I 3 July 2002. 25 In comparative vein see G Bermann, ‘The Role of Law in the Function of Federal Systems’, Ch 7 in K Nicolaidis and R Howse note 2 above.

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140 Stephen Weatherill

THE CONVENTION’S PREFERRED SOLUTIONS

There are at least two distinct issues associated with competence that are in evident need of fixing. The first is the nature of the rules governing the existence and exercise of competence. They are imprecise and ill-sorted. The second is the institutional context in which they are applied. It is deficient in critical voices.

Re-shaping the rules governing competence The Convention’s principal concern in the first case was to provide a text that would offer a clearer and more systematic account of the scope and nature of the principles governing EU competence, but which would not constitute a radical change of substance.26 The majority at the Convention appeared prepared to accept the current organising principles as flawed much more in its presentation than its practice.27 In the July 2003 draft Constitution relevant provisions are grouped together in Title III of Part I, ‘Union competences’. This contains Articles I–9 to I–17. Article I–9, governing fundamental principles, provides that ‘The limits of Union competences are governed by the principle of conferral’ and that the use of Union competences ‘is governed by the principles of subsidiarity and proportionality.’ Article I–11 covers ‘Categories of competence’. There are three main types, exclusive competence, shared competence, and competence to support, coordinate or supplement the actions of the Member States. Lists of the areas of activity to which each type of competence applies are included, though the detailed choices have attracted critical comment.28 Title III also includes Article I–17 on flexibility, a functional successor to the current Article 308. Detailed rules governing the exercise of these competences are located in the rather forbidding depths of Part III of the draft Constitution.

26 For a survey see A Dashwood, ‘The Relationship between the Member States and the European Union/European Community’ (2004) 41 CMLRev 355; P Craig, ‘Competence: clarity, conferral, containment and consideration’ (2004) 29 European Law Review 323. 27 The Commission defended this view in two submissions to the Working Group in Complementary Competences, WD 007—WG V 29 July 2002 and WD 06—WG V 30 September 2002. 28 See P Craig, ‘What Constitution does Europe need? The House that Giscard Built: Constitutional Rooms with a View’, Federal Trust Paper 26/03, August 2003, http://www.fedtrust. co.uk/default.asp; M Dougan, ‘The Convention’s Draft Constitutional Treaty: a “tidying-up exercise” that needs some tidying up of its own’, Federal Trust Paper 27/03, August 2003, http://www.fedtrust.co.uk/default.asp; P Steinberg, ‘A Tentative Survey of the Innovations of the Constitution for Europe that Might Impact upon National Constitutional Law’ WHI–Paper 14/03 (Walter Hallstein Institut, http://www.whi-berlin.de); G Davies, ‘The post-Laeken division of competences’ (2003) 28 European Law Review 686.

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Finding a Role for the Regions in Checking the EU’s Competence 141 Monitoring competence: the case in favour of greater involvement by national Parliaments On the second point—the institutional context—the Convention was slightly more adventurous. Its draft seeks to widen the scope for active monitoring of matters pertaining to competence, most prominently by granting a formal role to national Parliaments. The issues of, first, the nature of the rules and, second, the monitoring of their application are not unconnected for the assumption is that the crafting of a clearer set of rules will contribute to improved monitoring by exposing what is really at stake. At an early stage the Convention accepted the general notion that a greater level of involvement by national Parliaments in the EU lawmaking process was desirable. The basic assumption was that their closer attachment to the debate about whether competence exists and, if so, whether it should be exercised would generate a more balanced interrogation. The involvement of fresh actors drawn from outwith the EU mainstream was favoured in order to cultivate an institutional environment more actively receptive to the need to think critically about competence and the rules governing its exercise. There is, of course, acute sensitivity in the constitutional novelty of direct participation in EU lawmaking by national Parliaments. The dominant paradigm has long held that although national Parliaments are worthy actors whose interests should be represented in the EU lawmaking process, it is for Ministers in Council to perform that function. And since it is absolutely not for the EU to interfere with cherished domestic constitutional processes, it was held that poor oversight exercised by national Parliaments, causing their interests to be neglected, should be remedied within the national system. And so the EU had, until the Convention, confined itself to exhorting better transmission of information about EU matters to national Parliaments while accepting that responsibility for securing this lay with national governments. At Maastricht a Declaration was appended to the Treaty. At Amsterdam this was upgraded to a Protocol.29 Both emphasised the importance of national Parliaments being adequately informed of legislative proposals, but both accepted that it was for national governments to ensure this occurred.

29 For a report on the implementation of the Protocol prepared by the General Secretariat of the Council for the Convention Working Group on National Parliaments see WD 033—WG IV 8 October 2002. On how more ambitious schemes for embedding national Parliamentary contributions directly into the EU lawmaking process were rejected at Amsterdam see R Dehousse, ‘European Institutional Architecture after Amsterdam: Parliamentary System or Regulatory Structure?’ (1998) 35 CMLRev 595, 606–08. See also I Pernice, ‘The Role of National Parliaments in the European Union’ WHI–Paper 5/01 (Walter Hallstein Institut, http://www.whi-berlin.de); C Bengtson, ‘National Parliaments in European decision-making: a real prospect or wishful thinking?’ Federal Trust Paper 29/03, September 2003, http://www.fedtrust. co.uk/default.asp.

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142 Stephen Weatherill The Convention was bolder. Rightly so. The comfortable paradigm that places Ministers in Council as influenced by and accountable to national Parliaments has long been intellectually unreliable. Some States fare worse than others when judged on the level of effective Ministerial briefing of and control by Parliaments on pending European matters.30 Denmark is famously rigorous.31 But there is no common pattern. The key point holds that simply to insist that addressing such matters lies beyond the EU’s remit is deeply unpersuasive. Much ‘European business’ is complex and hard to track and typically drifts past little noticed in national political milieux simply because relevant actors are so very busy. One may even suspect the poor performance of governments in transmitting information to their Parliaments amounts on occasion to a calculated strategy to exploit the EU tier of governance as a means of wresting power into executive hands. These problems have been created by the very fact of EU membership, so it is too glib simply to wish away responsibility for their remedy to national level. The Convention was convinced by this prescription. At a relatively early stage it became plain that there was strong political support for the general notion of a greater level of involvement by national parliaments, albeit that the detail of proposed models varied.32 This general preference was never budged. True, there were dissenting voices. A contribution entitled ‘Issues of competence and subsidiarity, and confusion arising therefrom’ drew attention inter alia to anxieties that a new body of national parliamentarians would trespass on the function of the European Parliament, would be unlikely to have time to act effectively, would be of dubious representative quality, and would make the system slower and yet more opaque.33 The paper preferred to preserve the centrality of the Council as the voice of State interests in the EU’s architecture, and to improve national Parliamentary supervision of governmental action in Council, especially by focusing on more effective transmission of information and openness in Council practice.34 This perspective was eventually seen to 30 See A Maurer and W Wessels (eds), National Parliaments on their Ways to Europe: Losers or Latecomers (Baden-Baden, Nomos, 2001), and with particular reference to the Convention process, A Maurer and T Bühler, ‘National Parliaments in the European Architecture: elements for establishing a democratic and efficient mechanism’ Federal Trust Paper 06/02, March 2003, http://www.fedtrust.co.uk/default.asp. 31 For an account of this special case prepared for the Working Group on National Parliaments see WD 024—WG IV 18 September 2002 (Dam Kristensen). 32 The role of national Parliaments in the European architecture, CONV 67/02 29 May 2002, CONV 68/02 31 May 2002. See also eg CONV 61/02 22 May 2002 (Swedish members of the Convention), CONV 82/02 30 May 2002 (Finnish members), CONV 84/02 31 May 2002 (Barrau), CONV 95/02 13 June 2002 (Kreitzberg, Kelam); CONV 119/02 18 June 2002 (Kurzmann); CONV 182/02 11 July 2002 (van der Linden and van Eekelen); CONV 334/02 10 October 2002 (Basile); CONV390/02 7 November 2002 (Hübner). 33 CONV 178/02 9 July 2002 (Duff, Lamassoure, Duhamel, De Gucht, Kaufmann, Zieleniec and Berès). Cf on the complementary role of national and European Parliaments CONV 255/02 10 September 2002 (Haenel); and, much later in the process, CONV 760/03 23 May 2003 (Kiljunen). 34 This perspective was placed before the Working Group on National Parliaments in WD 004— WG IV 5 July 2002 (Duff); cf also WD 041—WG IV 16 October 2002 (Duff); WD 048—WG IV 17 October 2002 (Michel).

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Finding a Role for the Regions in Checking the EU’s Competence 143 swim fruitlessly against the tide of a direct input by national Parliaments—but its identification of costs inherent in empowering new actors should not be lightly dismissed. Eventually the Convention put forward proposals in its draft Constitution that are adventurous on two levels. Not only should the indirect participation of national Parliaments, by exercising control over representatives acting in Council, be strengthened but also their direct engagement at the European level of lawmaking should for the first time be secured. The Convention did not deny that the primary role of national governments is to hold their Ministers accountable for decisions taken in Council but it was bolder in accepting the need for EUlevel arrangements that would facilitate and promote a more vibrant culture of debate about the constitutional context of proposed EU-level action.35

Indirect participation by national Parliaments: holding ministers to account through better flow of information The Convention’s draft provides for automatic transmission of Commission documentation to national Parliaments without the need to rely on the intermediary role of national governments. The final agreed version submitted to the President of the European Council in Rome on 18 July 2003 has attached to it the Protocol on the Role of National Parliaments in the European Union. The Protocol’s Preamble recalls ‘that the way in which individual national Parliaments scrutinise their own governments in relation to the activities of the Union is a matter for the particular constitutional organisation and practice of each Member State.’ But the Preamble asserts a desire ‘to encourage greater involvement of national Parliaments in the activities of the European Union’. Commission legislative proposals, consultation documents, its annual legislative programme and other strategy documents submitted to the European Parliament and the Council shall also be sent directly to national Parliaments. A six-week period shall then separate the Commission making available a legislative proposal and the date when it is placed on a Council agenda and (subject exceptionally to stated grounds of urgency) no agreement may be established on the text during those six weeks. Then ten further days must elapse between the placing of a proposal on a Council agenda and the adoption of a position in Council. The agendas for and the outcome of meetings of the Council, including the minutes of meetings where there occurs deliberation on legislative proposals, shall be transmitted directly to national Parliaments at the same time as to Member States’ governments. 35 The tone was set in the final report of the Working Group on National Parliaments, chaired by Ms Gisela Stuart, was issued in October 2002 CONV 353/02 22 October 2002. For its mandate see CONV 74/02 30 May 2002; for an appreciation of its work see T Brown, ‘National Parliaments in the Convention on the Future of Europe’ Federal Trust Paper 31/03, November 2003, http:// www.fedtrust.co.uk/default.asp.

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144 Stephen Weatherill This is an innovation. By cutting a direct information channel between an EU institution and national Parliaments that is not routed through national governments, it would for the first time recognise national Parliaments as a formal part of the EU legislative process. From the standpoint of competence in particular, one might pause to wonder whether this explosion of paperwork is in practice likely to promote a more informed, questioning environment. After all, most proposals do not generate ‘competence anxiety’. But early transmission of documents to national Parliaments is a device worth trying in order to sharpen the practical likelihood of better supervision of Ministerial conduct in Council. One may also aspire to more vigorous ‘horizontal’ sharing of best practice between national Parliaments.

Direct participation by national Parliaments in the EU lawmaking process More was wanted. The question was to select among available models, which were advanced in a number of different shapes and sizes.36 But the creation of new ad hoc monitoring agencies, perhaps involving national and European Parliamentarians, perhaps even involving ex ante judicial control, fell foul of the fear that loading the EU lawmaking system with cumbersome institutional novelties would prove a cure worse than the disease. Such innovations would slow down the EU’s ability to discharge its functions and would make the system even more intransparent. And so the generally favoured choice fell back to a candidate that already existed—the national Parliaments. As explained above, the Convention’s draft envisages that legislative proposals are to be sent by the Commission directly to national Parliaments, as well as to the relevant EU institutions. There then opens a six-week window before agreement may be reached on the text (save for cases of urgency). This, as explained above, is designed to promote active participation by national Parliaments in the task of controlling the conduct of their representatives in Council, but it also offers a chance for a more direct input by national Parliaments into the EU process before the proposed act has been adopted by Council and Parliament. Their role in supervising Ministerial conduct in Council would be supplemented by a direct right of participation in the lawmaking process, allowing them to monitor questions of competence.

36 For useful surveys prepared for the Subsidiarity Working Group see WD–006 WG I 9 July 2002 (Teufel); WD 007 WG I 16 July 2002 (Maurer). For a rich diversity of approaches see eg CONV 317/02 30 September 2002 (Badinter), Chapter 5; CONV495/03 20 January 2003 (Teufel—the ‘Freiburg Draft of a European Constitutional Treaty’, Art 26; CONV 308/02 1 October 2002 (Michel and Chevalier); WD–016 WG I 5 September 2002 (Kirkhope); CONV 213/02 24 July 2002 (Brok and twenty others); CONV 241/025 September 2002 (Farnleitner and Boesch). Also interesting is the preference for a ‘watchdog’ advanced in the European Scrutiny Committee of the House of Commons report, Democracy and Accountability in the EU and the Role of National Parliaments, HC 152–xxxiii–I (2001–2002).

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Finding a Role for the Regions in Checking the EU’s Competence 145 The question: how much power to grant them? Monitoring of what and with what consequence? The same tension emerged here as applied to the question of choosing the appropriate monitoring body. Giving a tough general power of intervention is appealing as a means of flushing out the current in-built bias that has led to competence creep. But such procedures incur costs measured in inefficiency and intransparency. In the event the Convention agreed that national Parliaments should be allowed to address concerns about particular dimensions of the problem of competence only; and that their power would be confined to triggering a re-consideration on the part of the Commission and would not amount to a power of veto of legislative proposals. The scope of the reasoned opinion In this matter it seems with hindsight that the Subsidiarity Working Group was unwittingly deeply influential in determining the scope of the direct involvement of the national Parliaments. It proposed that within the six-week window a national Parliament should be able to issue a reasoned opinion addressed to the Presidents of the Parliament, Council and Commission, but, given its mandate, it referred only to lodging objections about non-compliance with the subsidiarity principle. This idea endured and appears in Article I–9(3) of the agreed July 2003 text, which contains the principle of subsidiarity plus an additional explicit reference to new monitoring procedures located in a Protocol. But complaint about the proportionality of proposed legislation is not envisaged. The suggestion was made, both within37 and outwith38 the Convention. But the case was not sufficiently persuasive. The proportionality principle remains subject to ex ante monitoring within the orthodox institutional context of EU lawmaking and ex post facto judicial control. The same is true of the more general matter of attributed competence. The Laeken Declaration explicitly picked out Articles 95 and 308 as generating special sensitivity from the perspective of ‘competence creep’ but the progress of the Convention was rather differently motivated— and here again perhaps because of the material composition of the Working Groups. Working Group V on Complementary Competencies concluded that the flexibility afforded by a functionally broad provision of the type now found in Article 308 constituted a sufficiently compelling reason for inserting a similar clause into the draft text. It fully recognised the risk that such a provision could keep competence creep alive and kicking and the majority of the Working Group favoured the possibility of ex ante judicial control by the Court on request by the Commission or a Member State, on the model of the existing 37

Summarised at CONV 611/03 12 March 2003. The Report of the House of Lords Select Committee on the European Union on the draft Articles 1—16, HL 2002–2003 9th Report, submitted to the Convention as CONV 598/03 6 March 2003 (Tomlinson and Maclennan). See also A Verges Bausili, ‘Rethinking the Methods of Dividing and Exercising Powers in the EU: Reforming Subsidiarity and National Parliaments’ Jean Monnet Working Paper 9/02, http://www.jeanmonnetprogram.org/papers/index.html, pointing out that separating substance from subsidiarity/proportionality is also likely to prove awkward. 38

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146 Stephen Weatherill Article 300(6) EC. This is certainly radical, but it did not find favour, perhaps as part of a general antipathy to ex ante judicial supervision. By the time the Praesidium released its February 2003 draft it was provided that the Commission should draw the attention of national Parliaments to proposals advanced under the ‘flexibility’ article, using this same device chosen for monitoring subsidiarity. The chosen pattern was also challenged, but not vigorously and only the ‘flexibility’ provision found in Article I–17—and not the competence to harmonise, nor other sector-specific competences—is subject to ‘competence monitoring’ by national Parliaments in the pattern chosen in the final version of July 2003. So national Parliaments may submit a reasoned opinion addressing questions of subsidiarity arising under proposals advanced under any legal base and questions of competence to act under proposals advanced under Article I–17. But their influence on matters of proportionality, on competence questions arising under all other legal bases and, more generally, on matters of substance is to be routed through their representative in Council. The effect of the reasoned opinion If a national Parliament takes advantage of the six-week window to submit a reasoned opinion objecting to an act on the specified grounds, what happens? The July 2003 draft provides only that the recipient institutions ‘shall take account of the reasoned opinions issued’. The national Parliaments of Member States with unicameral Parliamentary systems shall have two votes, while each of the chambers of a bicameral Parliamentary system shall have one vote. Where reasoned opinions represent at least one third of all the votes allocated to the Member States’ national Parliaments and their chambers, the Commission shall review its proposal.39 After such review, the Commission may decide to maintain, amend or withdraw its proposal. The Commission shall give reasons for its decision. This largely follows a model first advanced in the Autumn of 2002 by the Subsidiarity Working Group. National Parliaments may project their concerns directly into the EU legislative process, but they are conspicuously not allowed to force the termination of the legislative process. Minority views arguing for a veto—a red card, to be waved by two-thirds of national Parliaments—were advanced, within the Convention most notably by Ms Stuart in February 2003.40 But they found little favour,41 and appear to have 39 This threshold shall be at least a quarter in the case of a Commission proposal or an initiative emanating from a group of Member States under the provisions of Article III–165 of the Constitution on the area of freedom, security and justice. 40 CONV 540/03 6 February 2003 (Stuart). See similarly the Report of the House of Lords Select Committee on the European Union on National Parliaments and Subsidiarity—the Proposed Protocols, HL 2002–2003 11th Report, submitted to the Convention as CONV 625/03 17 March 2003 (Tomlinson and Maclennan). 41 CONV 630/03 21 March 2003, Summary report on the plenary session of 17 & 18 March 2003, opposition stated at p 8.

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Finding a Role for the Regions in Checking the EU’s Competence 147 been treated as an inappropriately extensive concession to the place of national Parliaments. Given the preference for a yellow rather than a red card the question will be whether the political climate will be such that national Parliaments are able to induce the Commission—and, ultimately, the other political institutions—to take seriously their concerns and to engage in a wider and richer debate. In this vein one may imagine that national Parliaments would profit from horizontal co-ordination, not simply in order to build coalitions that hit the one-third requirement, but more generally as part of a strategy to sharpen the political cutting-edge of their objections to Commission preferences. This is capable of promoting a more open process of deliberation about the reasons for and techniques of EU rule-making, and in this vein the Convention’s scheme should be welcomed. In fact, even a sceptic of initiatives designed to enhance national Parliamentary power might regard the appeal of a richer debate about the quality of European lawmaking as a reason to go beyond the grant envisaged by the Convention. To admit objections to use of the ‘flexible’ legal base proposed in Article I–17 is very restrictive—especially if the rise of sector-specific legal bases truly curtails resort to Article I–17, as in law it should.42 Provided national Parliaments are allowed only a yellow card, and not a red card, a wider brief to challenge claimed competence to legislate could usefully be granted. Equally it seems unnecessarily artificial to permit a reasoned opinion to be advanced in respect of a draft’s compatibility with the principle of subsidiarity but not its near-relative proportionality. Here too—provided a yellow card but not a red card is allowed—it seems wise to prefer that alleged violations of either or both principles should provide the basis for input. National Parliaments would be thereby empowered. But not too much. Judicial review Little has been said thus far about ex post facto judicial review. Little need be said. The general view at the Convention was that whatever be done ex post, such arrangements could not possibly set aside the pressing need for the possibility of a more intensive and effective ex ante review conducted in a primarily political context. At the same time it was appreciated that the essentially political nature of the ex ante review process should not compromise the predominantly legal context of ex post review—and vice versa. In fact it was ultimately clear that attention was focused primarily on fashioning the fresh ex ante political monitoring procedures that were discussed above, embracing both attempts to reinforce the taking into account of subsidiarity by the legislative institutions and to set up a political early warning system involving the national Parliaments. No radical change in the judicial methods for ex post control found 42 Eg Case 45/86 Commission v Council [1987] ECR 1493; Opinion 2/94 note 11 above. See generally R Schütze, ‘Organized Change towards an Ever Closer Union: Article 308 EC and the Limits to the Community’s Legislative Competence’ (2003) 22 Yearbook of European Law 79.

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148 Stephen Weatherill favour. As explained above, under the current situation the Court is cautious about review of the existence of competence43 and extremely cautious about reviewing acts for want of compliance with the subsidiarity principle,44 and no serious thought was devoted to changing the rules. One might even argue that success in crafting a more thorough system of ex ante political monitoring should induce greater judicial deference ex post. This view was not advanced explicitly within the Convention although one might take the enduring absence of careful attention paid to the basis of judicial review as a hint that not much faith was invested in ex post review; it is the ex ante procedure that is the most popular (new) game in town. Attention paid to just what the Court might do— other than what it does now—was meagre and it seems there was no great expectation that more vigorous judicial control could be a major element in crafting a more trustworthy system of supervision, although there was consensus that the role of the Court be protected in principle.

THE EXCLUSION OF REGIONAL AND SUB-NATIONAL PARLIAMENTS

What of the regions? One must explore how and why the logic that led to the embrace of national Parliaments as actors granted formal recognition in the EU lawmaking process did not extend to the conferral of any analogous status on sub-national or regional Parliaments. Are not they too in practice excluded from the EU’s complex decision-making process, with the result that competence creep may damage their constitutionally protected status? Like national Parliaments they too depend on indirect representation of their interests by Ministers in Council but this notoriously may not occur. And simply to assume such deficit should be remedied within the domestic system is wilfully to ignore a mass of political and constitutional factors that frequently prevent this. The EU may be used as an arena within which national executives exploit the fact of transnational governance not only to disempower national Parliaments but even more so to undermine the regions. It is most famously but not only the German Länder who have complained of a centralising impulse that cannot be adequately checked from below. So, here too, one may argue vigorously that it is inappropriate for the EU to adopt a hands-off approach to the demands of the regions for greater involvement in EU decision-making; that this inadequately checked competence creep is not a problem of the domestic system’s making so it cannot and should not be resolved exclusively within the domestic system. But here the Convention was not convinced. The regions were omitted from the new information-provision and monitoring procedures. They are left to seek protection from damage done by competence creep within the domestic system. But all too frequently it is the domestic system that has failed them. 43 44

Case C–376/98 note 9 above, Case C–377/98 note 12 above, Case C–491/01 note 13 above. Case C–491/01 note 13 above.

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Finding a Role for the Regions in Checking the EU’s Competence 149 The principal arguments against granting a formal role to the regions and sub-national actors in the EU lawmaking process are that such intrusion would slow the process down and that it would create a risk of driving particular local preoccupations into the heart of a system that is meant to function on behalf of all European citizens. This is a serious anxiety. But these objections apply to empowering national Parliaments too, yet were not regarded as sufficiently compelling to prevent their elevation to a formal status within the EU lawmaking process. Has the line been drawn in the right place? Why should regional and sub-national Parliaments not also enjoy a carefully and narrowly defined right of participation on the model crafted by the Convention for the national Parliaments? This section will track the debate at the Convention to expose why the subnational level was excluded. The die may have been cast before the Convention opened. The Laeken Declaration is very light on references to the regions. Once the Convention picked up speed, that tone was confirmed. And once the intergovernmental conference took a grip on the process from Autumn 2003 the regional case was left on the sidelines. The story in summary is that frequent attempts were made by some Conventioneers to secure an explicit recognition of the role of regional and sub-national Parliaments. The majority at the Convention was commonly prepared to accept—or at least not to deny—the important role played in the EU by the regions, and to acknowledge the capacity of the EU to affect the position of the regions by imposing legal obligations on them. But in practice sub-national actors were largely marginalised at the Convention which quickly became an arena dominated by interests from national Parliaments and the EU institutions.45 Even the Committee of the Regions was allowed to appoint members of the Convention, but saw them confined to observer status. The general patterns are tracked in this book’s Introductory Chapter. The concern here is specifically competence control. The Convention rebuffed proposals to integrate sub-national or regional Parliaments into the formal ex ante monitoring procedures created to cater for the demands of national Parliaments. And the case for rejection was rarely, if at all, taken on to a carefully articulated plane.

Setting the tone The Working Group on National Parliaments was chaired by Ms Gisela Stuart and it submitted its Final Report in October 2002.46 It takes as its main thrust the contribution of national Parliaments to monitoring questions of competence. The report is concerned with the capacity of national Parliaments both to 45 See further the contribution by J Loughlin to this volume; also more generally J Shaw, ‘Process, Responsibility and Inclusion in EU Constitutionalism’ (2003) 9 European Law Journal 45. 46 CONV 353/02 22 October 2002. For its mandate see CONV 74/02 30 May 2002.

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150 Stephen Weatherill check positions taken by ‘their’ Ministers in Council and also to engage more vigorously in the European-level debate about competence and subsidiarity. Its failure to take seriously sub-national actors came to be typical. The report simply notes that scrutiny by sub-State actors is also possible but says no more.47 It is also remarked that exchange of information between Parliaments could be of ‘relevance for the sub-State level’—but there is no elaboration of this insight.48 As mentioned above, in February 2003 Ms Stuart, chair of the Working Group on National Parliaments, submitted a contribution designed to strengthen the proposed monitoring power allocated to national Parliaments.49 This was the so-called red card. The paper is notable for its explicit recognition of the interest of regional and local authorities in the trajectory of European integration. It explicitly acknowledges that such bodies are directly responsible for the implementation of EU policy and that they should therefore ‘have their say’. They should have access to the same information as national Parliaments. But procedures for achieving this ‘[u]ltimately must be negotiated within each national context’ whereas, in sharp contrast, national Parliaments are to be allowed a formal involvement at EU level. It was a similar story in the Subsidiarity Working Group.50 A majority preferred not to grant explicit recognition of the involvement of regional authorities in the drafting of legislation at European level. Nor should the regions be able to take the matter to the Court ex post facto. Plenary debate was similarly directed—not surprisingly, given the domination of the Convention by national Parliamentarians.51 With regard to subsidiarity the argument in favour of the involvement of sub-State actors seems particularly strong because of a textual concession. Article I–9(3) provides that Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level . . .

But even the addition of the words ‘regional and local level’, ensuring that this is no longer the sawn-off version of subsidiarity found under the current arrangements in Article 5(2) EC, was not enough to provoke acceptance of a formal institutional monitoring role conferred on sub-national actors. It was not the case that once models had been proposed by the Working Groups they could not be altered. The Subsidiarity Working Group’s proposal placed weight on the one-third threshold; this, as mentioned, endured. But the proposed system was adjusted in the interim. Amendments aimed at taking 47 48 49 50 51

Para 9. Para 29. Note 40 above. CONV 286/02 23 September 2002. CONV 331/02 11 October 2002, summary report of the plenary session of 3–4 October 2002.

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Finding a Role for the Regions in Checking the EU’s Competence 151 explicit account of bicameral Parliaments were successfully advanced, focusing on schemes for allocating two votes to each Parliament which could be split, one for each chamber for bicameral Parliaments. So the national Parliaments of Member States with unicameral Parliamentary systems shall have two votes, while each of the chambers of a bicameral Parliamentary system shall have one vote. Respect was paid to variation in constitutional contexts State by State. But by contrast the case for feeding in account for local variation in sub-national Parliaments was not successful. It is merely provided that it is for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers. So here lie the limits of the Union’s willingness to intervene in domestic constitutional affairs—even though the domestic perturbations flow directly from the difficulty of managing the obligations and implications of EU membership.

The profile of regional aspirations at the Convention Some contributors actively supported the importance of securing input from sub-national and regional actors. For example a paper submitted by Peter Hain entitled Europe and the Regions 52 drew on the recent experiences of the UK as an example of good practice in the matter of decentralisation. It advocated the closer involvement of the regions in EU policy areas for which responsibility lies at regional level. The Hain paper goes so far as to promise that if an ex ante subsidiarity monitoring system involving national Parliaments is installed, the UK intends to provide that legislative proposals falling to be implemented by the devolved administrations will be referred in addition to the relevant institutions in Scotland, Wales and Northern Ireland. The point, however, is that in so far as the EU Treaty does not underpin such commitments, they endure only so long as local political will remains forthcoming. There is no constitutional guarantee outwith the national sphere. And this was very firmly the way the majority at the Convention wished to keep it. A common trend was concern that a formal role at EU level allocated to the regions should be confined within the Committee of the Regions. The Hain paper, mentioned above, takes this approach. This was also a message transmitted by a Plenary Session devoted to regional and local issues held on 7 February 2003.53 And, in similar vein, according to Article III–270(3) of the draft Constitution that was ultimately agreed at the Convention, the Committee of the Regions would have a ‘semi-privileged’ standing before the European Court. It would have the competence to bring actions against acts of the institutions for the purpose of protecting its prerogatives. It would also be able 52

CONV526/03 3 February 2003 (Hain). CONV 548/03 13 February 2003, ‘Summary report on the plenary session: 6 and 7 February 2003’. 53

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152 Stephen Weatherill to bring actions against legislative acts for which the Constitution provides that it shall be consulted on the basis that the subsidiarity principle has been violated.54 Proposals had been advanced that regions with legislative powers be granted direct access to the Court to protect their rights and to safeguard the principle of subsidiarity.55 There were different models—this could be guaranteed at EC level or it could be subject to a national opt-in. The February 2003 plenary was invited by the Praesidium inter alia to consider this matter.56 But concessions to regional actors other than the Committee of the Regions were not forthcoming. The report on the plenary reveals that some members favoured granting explicit standing to regions with legislative competences while others wished to confine such litigation to the Committee of the Regions, the Member State concerned or the second chamber of a national Parliament.57 The conservative option prevailed in the final text. The regions with legislative competences and chambers of national Parliaments are denied self-standing status, while the Committee of the Regions is granted its own (admittedly tightly defined) right of access to the Court. Reliance on existing institutions is plainly cosily attractive. And, admittedly, it avoids costs calculated in institutional proliferation. But the Committee of the Regions is not apt to reflect the diversity of composition and aspiration of the regions of Europe. Regions in Europe are not homogenous actors and even a more vigorously empowered Committee of the Regions would be hindered in its capacity to satisfy powerful regions in particular by its ‘one size fits all’ tendencies. The Committee has a potentially useful role to play but it can be only one component in a much more robust set of arrangements suitable for fulfilment of regional aspirations, both within the formal EU architecture and beyond it.58 Even as late as June 2003 some Conventioneers continued to raise the possibility of the regions with legislative powers—at least—being associated explicitly with the Protocols. But by this stage the argument was fruitless.59 It was not defeated by careful analysis of the costs and benefits. There was no attempt to demonstrate that—for example—the costs associated with the direct involvement of national Parliaments in the EU lawmaking process should be tolerated because of the benefits in fresher thinking about the balance between the virtue and vice of EU intervention, while the costs of sub-national involvement, measured in delay and the prospect of lawmaking becoming an inefficient Tower of Babel, outweighed the benefits. As is tracked at a more general level in the Introductory 54 See further the contribution by J Nergelius to this volume. For the Committee of the Regions’ case before the Convention, see CONV 195/02 17 July 2002 (Zaplana Hernandez-Soro et al); CONV 359/02 22 October 2002 (Chabert—CoR observer); CONV 520/03 30 January 2003 (six observers of the CoR). 55 Eg CONV 530/03 4 February 2003 (Teufel); CONV 534/03 4 February 2003 (Farnleitner and Tusek); CONV544/03 7 February 2003 (Michel); CONV 767/03 28 May 2003 (Dewael). 56 CONV 518/03 29 January 2003. 57 CONV 548/03 note 53 above, p 11. 58 See further contributions by C Jeffery, J Loughlin and J Nergelius to this volume. 59 CONV 798/03 17 June 2003, summary report on the plenary session of 5 June 2003.

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Finding a Role for the Regions in Checking the EU’s Competence 153 Chapter to this book, it simply seems that a substantial majority at the Convention was content to pay no more than lip-service to the importance of the regions and sub-national entities in the EU.

SEEKING BOLDER SOLUTIONS

Under the draft constitutional Treaty national Parliaments are to receive information directly from the EU institutions, most of all the Commission. They are granted a six-week window to submit a reasoned opinion objecting to use of the new flexibility provision and to perceived violation of the subsidiarity principle. They can issue a yellow card if the one-third threshold is crossed. None of these privileges is extended to sub-national or regional Parliaments. They remain buried beneath the convenient EU assumption of the unitary Member State. Under the draft constitutional Treaty the Committee of the Regions would have a ‘semi-privileged’ standing before the European Court, permitting it to bring actions against acts of the institutions for the purpose of protecting its prerogatives and, in respect of actions for which the Constitution provides that it shall be consulted, on the basis that the subsidiarity principle has been violated. None of these opportunities is extended to sub-national or regional Parliaments or other sub-State actors. The EU’s institutional structure remains blind to them. The immediately obvious ways to be bolder involve aligning the position of sub-national and regional actors at least in part to the status enjoyed by national Parliaments and/or the Committee of the Regions. Borrowing the model crafted at the Convention to benefit national Parliaments would involve placing regional and sub-national Parliaments alongside national Parliaments in all the relevant provisions of the draft constitutional Treaty and its Protocols. So they would receive the same level of information directly from the EU institutions. They would enjoy the same six-week window to submit a reasoned opinion objecting to use of the new flexibility provision and to perceived violation of the subsidiarity principle. And they could issue a yellow card if the one-third threshold is crossed—some complicated arithmetic might be required to allocate votes. And if—as is advocated above—a wider brief to challenge claimed competence to legislate is granted to national Parliaments via the reasoned opinion procedure than preferred by the Convention, then that generosity should equally be extended to regional and sub-national Parliaments. A more modest scheme that would diminish the costs associated with the delay caused by such intrusion would provide a power to regional and subnational Parliaments that is more tightly-confined than that granted to national Parliaments. An obvious choice might be to allow them the opportunity to submit a reasoned opinion but to deny them access to the yellow card procedure.

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154 Stephen Weatherill A third and still less generous version would make explicit provision wherever mention is made of national Parliaments that regional or sub-national ‘Parliaments’ nominated for these purposes by a Member State should be able to get involved in a manner comparable (not necessarily identical) to national Parliaments. This is evidently constitutionally less ambitious, for it roots the decision in whether to empower regional and sub-national actors within the national system. Its appeal is that it may induce States to delve into their local peculiarities and discover a process for respecting regional anxieties that best suits their constitutional circumstances. The EU would be confined to inducing improvement, and encouraging horizontal co-operation—‘benchmarking’. But one would be forced to concede that this model would carry the disadvantage that it would privilege regions in States with central authorities receptive to their empowerment, while doing little other than introducing soft political pressure on the central authorities in States determined to keep their regions submerged below the EU waterlevel. Borrowing the model crafted at the Convention to benefit the Committee of the Regions would suggest that sub-national and regional Parliaments be granted standing before the European Court to bring actions against acts of the institutions under defined circumstances. The Committee of the Regions is to be allowed to proceed for the purpose of protecting its prerogatives and, in respect of actions for which the Constitution provides that it shall be consulted, on the basis that the subsidiarity principle has been violated. Neither basis perfectly fits the case of sub-national or regional actors. One possible model is to allow such entities locus standi to bring actions whenever the EU acts in an area for which the region is also competent according to internal constitutional arrangements. This would risk an overload of litigation and it would risk placing the European Court in the awkward position of having to judge on the patterns of internal allocation of power in circumstances where there is dispute about whether the matter is properly regarded as one of regional competence under local law. But this may be a price worth paying for investing the supervisory process with greater credibility from the perspective of the regions. A more cautious, but still thoroughly worthwhile, way to proceed is to connect the right of standing before the Court to the model for participation chosen by analogy with the position identified for national Parliaments. A regional actor that has submitted a reasoned opinion directed at a particular proposal should be granted explicit standing to challenge the subsequently adopted act without the need to show any further special interest. Needless to say the same should be equally true of a national Parliament. Regrettably, however, under the relevant Protocol agreed by the Convention actions can be brought only by ‘Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber of it’. This is not sensible. It assumes that Member States will do national Parliaments’ bidding in this respect, but a major reason for allowing national Parliaments their own direct access into the EU system, divorced from that enjoyed by State executives, is precisely the perception that

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Finding a Role for the Regions in Checking the EU’s Competence 155 sometimes national Parliaments are undermined by Ministers. So national Parliaments should have direct access to the Court to challenge acts in respect of which they have submitted a reasoned opinion—and so should sub-national and regional Parliaments. An objection to any such adjustments holds that it is highly unlikely that subnational or regional Parliaments will have the time or resources to participate effectively in any such procedures. But much the same applies to national Parliaments. It cannot serve as a reason for excluding sub-national actors in principle, once it has been accepted that national Parliaments should be allowed the chance. The same point was made above in dismissing the argument that inefficient delay would be introduced into the EU lawmaking process were regional and sub-national actors to be empowered in this way. Generally, the principal argument of this paper is that once one has accepted that national Parliaments can enrich the EU lawmaking process, notwithstanding the costs associated with their input, and once one has confined their role to a relatively narrow one which will not strip away primary responsibility for lawmaking from the EU’s existing political institutions, then it is hard to see why a bright line should be drawn that wholly excludes regional and sub-national Parliaments from recognition within the formal monitoring procedures crafted by the draft Treaty. Put more positively, the quest for enhanced legitimacy in the EU and the promotion of a vibrant culture of multi-level governance would be well served by taking a more inclusive view of regional and sub-national actors than was adopted by the Convention, both generally and in relation to the particular issues of checking competence. This points towards a degree of abandonment of the EU’s regional blindness, as advocated in the Introductory Chapter to this book. More specifically an allegation of violation of the principle of subsidiarity will commonly involve the contention that the matter is better dealt with at regional level. So the regional claimant should be allowed privileged access to the Court to launch a challenge on this ground, and should not be dependent on the Member State or the Committee of the Regions choosing to pursue the matter. And this should be regarded in the wider perspective of other positive and complementary attempts to develop a regional voice in Europe, such as the rise of those with legislative powers in the ‘REGLEG’ grouping. It is awkward to allow these actors a formal say at EU level, because of the inequalities that would flow from allowing differential treatment within a Member State to dictate replication at EU level. But their vigorous activities designed to promote the regional dimension in thinking about the future of Europe should not be regarded as hostile to the EU’s ambitions. Quite the reverse. They confirm once again the reality of multi-level governance for Europe not just above but also below the State.

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9 The Regional Question, Subsidiarity and the Future of Europe JOHN LOUGHLIN

THE DIVERSITY OF THE REGIONAL QUESTION

T

HE REGIONAL QUESTION, like the poor, is always with us and has been on the political agenda since the formation of the nation-state. This is simply because the nation-state, as a system of political organisation, involved the imposition of central control over territory and, in the process, absorbed other political entities—provinces, regions, cities, and even smaller nations—within its territorial boundaries. Nation-state building thus involved both centralisation and peripheralisation, but, as Stein Rokkan has shown, the patterns of nation-state and centre-periphery relationships varied greatly across Europe.1 As a result, European nation-states show a great complexity in their origins and in the forms of organisation that they eventually adopted.2 First, there is a great deal of diversity in the territorial organisation of states.3 With regard to state forms, the classical distinction is between federal and unitary states. It is possible, however, to break these categories down further. Federal states may be centralised (Austria), decentralised (Belgium) and balanced (Germany). Unitary states may be centralised (Greece, Ireland, Portugal), decentralised (Scandinavian states and the Netherlands), and regionalised (Italy, Spain, France and, now, the UK) unitary states. This means that some federations such as Austria may diminish regional (Länder) autonomy while in Belgium the federation has almost become a mere residual state with many of its functions (including some European and international tasks) being taken over by the communities and regions. Germany strikes a balance between 1 S Rokkan, Economy, Territory, Identity : politics of West European peripheries (London, Sage, 1983). 2 K Dyson, The State Tradition in Western Europe: a study of an idea and institution (Oxford, Martin Robertson, 1980); C Tilly (ed), The Formation of National States in Western Europe (Princeton, N J, Princeton University Press, 1975). 3 U Bullmann, ‘The Politics of the Third Level’ (1996) 6/2 Regional And Federal Studies 3; J Loughlin et al, Subnational Democracy in the European Union: Challenges and Opportunities (Oxford, Oxford University Press, 2004).

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158 John Loughlin the political and policy-making role of the federal government, the Bundesregierung, with input from the Länder through the Bundesrat, and the administrative role of the Länder.4 On the other hand, some of the large unitary states (France, the UK, Italy and Spain) have strengthened the position of their regions albeit to differing extents while the smaller unitary states have been creating at least levels of regional administration.5 The institutional picture is further complicated by the great diversity in the situation of local authorities and their relations with both regional and national levels of government. Patterns of local government organisation and intergovernmental relations vary between the north and south of Europe6 but also even within countries such as across the German Länder7 or in Sweden.8 Second, the understanding of the regional question has varied in different historical periods. Since 1945, the question has been formulated in distinct ways. The period of les Trente Glorieuses (1945–1975), which saw the growth of the Welfare State in Europe when, under the impact of post-war reconstruction and the Marshall Plan, economies and states steadily expanded, may be interpreted as the final stage in the process of nation-state building which began around the time of the French Revolution. The key features of this period were centralisation in order to redistribute and growing bureaucratisation in order to administer the burgeoning policy programmes. During this period, regions and subnational authorities were viewed within the context of participation in the processes of national solidarity and reducing the disparities between stronger and weaker territories. The policy instrument to bring about this convergence was regional policy whereby national governments would apply the same Keynesian and Beveridgian logic to territories as they did to weaker individuals and groups in social policy.9 We might call this assisted regionalism. During this period, regional policy was essentially a competency of the nation-state, even in countries which were already members of the European Communities. Although a European regional policy was implicit in the preamble to the Treaty of Rome, which speaks of ‘harmonious and balanced development’ of the Community, it was not until 1975 that the European Regional Development Fund was established. However, this was still little more than an 4 C Jeffery and P Savigear (eds), German Federalism Today (Leicester, Leicester University Press, 1991). 5 C Jeffery (ed), The Regional Dimension of the European Union: towards a Third Level in Europe? (London, Frank Cass, 1997); J Loughlin, ‘The “Transformation” of Governance: New Directions in Policy and Politics’ (2004) 50/1 Australian Journal of Politics & History 8. 6 E Page, Localism and Centralism in Europe: the political and legal bases of local selfgovernment (Oxford & New York, Oxford University Press, 1991). 7 U Bullmann, ‘Germany: Federalism under Strain’ in J Loughlin et al note 3 above. 8 J Loughlin and S Martin, ‘Local Income Tax in Sweden: Reform and Continuity’ (London, Office of the Deputy Prime Minister, 2004), available via http://www.local.dtlr.gov.uk/finance/ balance/bof20.pdf 9 W Molle, ‘The Regional Economic Structure of the European Union: an Analysis of Long-Term Developments’ in K Peschel (ed), Regional Growth and Regional Policy Within the Framework of European Integration (Heidelberg, Physica-Verlag, 1996).

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The Regional Question, Subsidiarity and the Future of Europe 159 attempt at coordinating national regional policies with a view to preventing market distortion across the Member States of the Community.10 A truly European policy did not emerge in fact until the mid-1980s and early 1990s when successive reforms revamped the ERDF and created the Structural Funds by the addition of social and agricultural funds.11 The reason for this tardiness is fairly clear: nation-states, during the period of their expansion during the Trente Glorieuses, did not feel in need of another layer of policy-making in this field. This is not to say that there was no regional mobilisation from below. On the contrary, the 1970s and 1980s saw a significant increase in such mobilisation. However, the context within which mobilisation occurred was still the national framework within which the regions were situated. Their demands were mainly on their national governments for even more assistance. A small but vociferous minority of regional activists in certain regions were more radical in their demands and sought the restructuring of these same states along federalist or regionalist lines and, occasionally, even sought secession from the state and used political violence to achieve this demand. Nevertheless, the nation-state remained the main frame of reference for these demands. The Welfare State model had been contested by various political tendencies on both the left and the right of the political spectrum. The ‘New Left’ of the 1960s and early 1970s viewed the Welfare State as little more than a social democratic capitulation and rescue of the capitalist system. For this critique, as represented, for example, by the Frankfurt School of Adorno, Horkheimer and Marcuse, the Welfare State was a bureaucratic monstrosity which stifled the freedom and creativity of the individual and led to his alienation. However, it was the ‘New Right’, in philosophers such as Nozick, political scientists such as Niskanen and economists such as Von Hayek and Milton Friedman, which presented a more telling critique, a form of right-wing libertarianism, that is, which sought to reduce the role of the state as such. It was the New Right thinkers who were able to exploit the crisis of the Keynesian and Beveridgian model of the state following the oil crisis of 1973 and the consequent economic difficulties which led to the election to power of Margaret Thatcher and Ronald Reagan. Although Thatcher and Reagan did not dismantle the Welfare State, their policy approaches did seriously attempt to reduce its significance and, at the very least, particularly in the UK, there was a slowing down of the increase in state expenditures on welfare policies.12 It is clear that Welfare States continued to exist and to provide welfare. However, what does seem to have changed is the 10 H Armstrong, ‘Community regional policy’, in J Lodge (ed), The European Community and the Challenge of the Future (London, Pinter, 1993); J Loughlin, ‘Regional Policy in the European Union’, in S Stavridis et al (eds), New Challenges to the European Union: Policies and Policy-making at the End of the Century (Aldershot, Dartmouth, 1996). 11 L Hooghe (ed), Cohesion Policy and European Integration: Building Multi-level Governance (Oxford, Clarendon Press, 1996). 12 B Jessop, The Future of the Capitalist State (Cambridge, Polity Press, 2002) presents a similar analysis to that presented here when he speaks (in rather awkward language) of a transition from the Keynesian Welfare National State to the Schumpterian Workfare Post-national Regime.

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160 John Loughlin basic underlying philosophy of the state in which the latter came to be conceived either as a hindrance to economic and individual development or, more recently, as less an interventionist state than as one which ‘enables’ and ‘facilitates’. It ‘steers’ rather than ‘rules’. It is this shift that has given rise to the now substantial emphasis on ‘governance’.13 We might therefore speak of a post-Welfare State which has taken two forms. First, there have been attempts to apply a neo-liberal approach which favours the market over both the state and civil society. This approach, associated above all with Margaret Thatcher and Ronald Reagan, has been particularly important in the US and the UK but has also influenced all other Member States of the EU, the newly emerging democracies of the former Soviet Union and countries in Latin America. It has also been influential in international organisations such as OECD, the IMF and the World Bank. Second, there have been more recent attempts to modify neo-liberalism through an attempt to reinject a societal element and to conceive the state in a more positive way. This approach is associated with the reinventing government programme of Bill Clinton and Al Gore which influenced Blair’s Third Way as well as attempts by Gerhard Schröder and Lionel Jospin to revamp European social democracy. In essence, it means that the neo-liberal emphasis on the market is retained but there is an attempt to temper it through a renewed emphasis on the social dimension. Thus, the state is seen as a facilitator which encourages ‘partnerships’ between the public and private sectors, between different levels of government, and between business and civil society. It is not coincidental that, during this period of transition from the Welfare to the post-Welfare State, there was also a renewed burst of European integration with the single market project and the revisions of the Treaties at Maastricht, Amsterdam and Nice. Both the European and national levels of government or governance were struggling to devise institutional and policy approaches to cope with the new social and economic complexities. These measures were also accompanied in the 1980s by a reform of European regional policy and, in overall EU budgetary terms, a modest but, for regions, important increase in the funds available for regional development. Finally, as national government and the European Union were revamping their political systems, the Soviet satellite states and, eventually, the Soviet Union itself, collapsed and enlargement of the EU to the east became a real possibility. All of these developments began to feed into and reinforce each other. During the early 1980s and late 1990s, the regional question took on a particular character. First, under the impact of neo-liberal policy reforms, national regional policies were either seriously reduced or abolished outright (as in the UK). When this occurred, at least some regions and local authorities found they 13 R Rhodes, Understanding Governance: policy networks, governance, reflexivity and accountability (Buckingham, Open University Press, 1997); J Loughlin, ‘The “Transformation” of Governance: New Directions in Policy and Politics’ (2004) 50/1 Australian Journal of Politics & History 8.

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The Regional Question, Subsidiarity and the Future of Europe 161 had to reinvent themselves in a new situation of competitive regionalism, that is, they found that their national governments were either unable or unwilling to help them with needed funds. On the other hand, ‘Brussels’ was suddenly providing funds even if these were quite modest. This combined with the diminishing of the centrality of national governments as policy actors to encourage at least some regional authorities to adopt strategies that looked outside their own nation-states. New models of regional development and concepts such as subsidiarity and partnership were adopted by the EU itself in its reformed regional policies.14 Thus, the notion of collaborative regionalism developed alongside and co-existed with the competitive approach. There was during this period an important mobilisation of regions who formed various kinds of associations to try to influence the direction of events, and in particular the reforms of the EU, in their favour.15 It is true that the outcome, the Committee of the Regions, which was created by the Treaty on European Union, was something of a disappointment to the regions, particularly the German Länder who had been at the forefront of the movement.16 Nevertheless, even this modest step is an indicator that the regional question was on the agenda of European politics in a way that was new.17 In each of our three periods, the EC/EU can be characterised in a particular way. During the early period, it was intergovernmentalist given the strength of the Welfare State and the expanding economy. In the neo-liberal post-Welfare period, it was marked by accelerated integration with a view to achieving the single market. In the subsequent post-Welfare period, it was neo-federalist and constitutionalist. Figure 1 overleaf presents these features of the different periods. However, we should inject a note of caution by pointing out that the division between one period and the other is not always clear cut and that we are speaking of dominant tendencies in each period. These usually co-exist with the other approaches which remain subordinate. For example, Welfare and post-Welfare approaches to policy co-exist but the configuration in which they co-exist changes. In the EU, intergovernmentalism co-exists with supranationalism and neo-federalism. Competitive regionalism co-exists with collaborative regionalism. It is this complexity of sometimes complementary, sometimes competing tendencies that we term governance.

14

Loughlin note 10 above. The most important of these associations were: the Assembly of European Regions (AER), the Conference of Peripheral Maritime Regions (CPMR), the Association of Cross-Border Regions, but many more exist often defined by fairly narrow geographical or economic criteria. 16 C Jeffery (ed), The Regional Dimension of the European Union: towards a Third Level in Europe? (London, Frank Cass, 1997). 17 J Loughlin, ‘Representing regions in Europe—the Committee of the Regions’, in C Jeffery note 16 above. 15

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162 John Loughlin Figure 1: Periodisation of Regionalism in Western Europe (1945–present) Period

Dominant Feature

Mode of of Governance

Mode of Regionalism

Nature of EU

Welfare State

State

Interventionist

Assisted

Residual/ Intergovernmentalist

Post-Welfare (neo-liberal)

Market

Diminished State Competitive

Accelerated integration

Post-Welfare (Third Way)

Society

Partnership/ Network

Neo-federalist and Constitutionalisation

Collaborative

THE EUROPEAN CONVENTION, SUBNATIONAL AUTHORITIES AND SUBSIDIARITY

The foregoing paragraphs have described the mobilisation of regions against the background of the evolution of the nation-state and the European Union. All three processes are clearly closely interlinked. The loosening of the rigidities of the traditional nation-state in the 1980s opened up opportunities for regions and local authorities to mobilise on a wider scale than hitherto. However, the setting up of the Committee of the Regions in 1994 seems to have somewhat deflated this mobilisation and led to a certain ‘demobilisation’, as is evident by the fact that the regional question was largely absent at Amsterdam and Nice.18 Furthermore, in Joschka Fischer’s speech advocating a federal Europe given at Humboldt University, reference was made only to relations between the Member States and the EU institutions and not to the regions.19 The responses to this speech, as in the document drawn up by lawyers and political scientists at the European University Institute, also ignored the regions.20 To some extent, this marginalisation of regions is a result of the renewed vigour of the nationstate whereby national governments have attempted to reassert their central position in the EU in the face of advances made by the Commission and the European Parliament. This tussle has largely excluded representatives of the regions, including the powerful German Länder. On the other hand, this does not mean that the regional question has gone away. On the contrary, it is still very much present. There is currently a new 18 C Jeffery and S Collins, Whither the Committee of the Regions? British and German perspectives (London, Anglo-German Foundation, 1997). 19 J Fischer, ‘From Confederacy to Federation—Thoughts on the finality of European integration’, speech at the Humboldt University in Berlin, 12 May 2000, http://www.auswaertiges-amt.de/ www/en/eu_politik. 20 C Joerges, Y Mény and J Weiler, What Kind of Constitution for What Kind of Polity?: responses to Joschka Fischer (Cambridge, MA, Harvard Law School, 2000).

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The Regional Question, Subsidiarity and the Future of Europe 163 mobilisation but one which is rather different from the wide mobilisation of the 1980s and 1990s. In essence, the division between ‘strong’ and ‘weak’ regions, always present in the regional movement, has come to the fore once again with the formation of groups such as the Constitutional Regions and ‘REGLEG’, which represent regions with legislative powers.

The background to the debates at the Convention Although both the Commission’s White Paper on Governance and the Laeken Declaration, which established the Convention on the Future of Europe, made several references to including regions and cities in the process,21 it is clear that the Convention, from the beginning, was mainly an affair of the EU institutions and the national levels of the Member States. In fact, the strongest representation in the Convention was from the parliaments, both European and national. The Convention did address the question of subsidiarity and set up a Working Group to examine the operation of this principle; however, the main thrust of their considerations was the issue of the respective roles of the EU institutions and the national governments of the Member States, with little attention paid, at least at the beginning, to the problem of the application of the principle to subnational authorities. In practice, subnational authorities, including the strong regions such as the Länder and other regions with legislative powers, were marginalised in the early days of the Convention and made their voices heard only with great difficulty. It was ominous that the Committee of the Regions, while it was allowed to appoint six members of the Convention, was given only observer status, despite its best efforts to the contrary. Furthermore, regions and local authorities were placed by the Convention in the category of ‘civil society’, rather than being regarded as legitimate representatives of a level of democratic practice. This marginalisation led to a new mobilisation of subnational authorities, but mainly of regions with legislative powers, the Conference of Peripheral Maritime Regions as well as the Committee of the Regions, to try to influence the agenda and outcome of the Convention in a way that was favourable to the regional interest in Europe. There were some sympathetic voices, such as the former Belgian Prime Minister Jean-Luc Dehaene, Vice-President of the 21 For example, the Declaration states: ‘Many [citizens] feel that the Union should involve itself more with their particular concerns, instead of intervening, in every detail, in matters by their nature better left to Member States’ and regions’ elected representatives. . . . National and regional differences frequently stem from history or tradition. They can be enriching . . . should not the day-to-day administration and implementation of the Union’s policy be left more emphatically to the Member States and, where their constitutions so provide, to the regions?’ (my emphasis) (Laeken Declaration, 2001). The Commission’s White Paper on European Governance called for ‘a stronger interaction with regional and local governments and civil society . . . a more systematic dialogue with representatives of regional and local governments through national and European associations at an early stage in shaping policy’, COM (2001) 428 final.

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164 John Loughlin Convention, who facilitated these efforts. The outcome was that the Convention devoted a Plenary Session to regional and local issues on 7 February 2003. This debate, chaired by Mr Dehaene, illustrated the differing opinions in the Member States with regard to the position of regional and local authorities in the EU.22 There was a general admission that the new Treaty should recognise these authorities in some of its articles and also that they should be included in the consideration of the practice of subsidiarity. Furthermore, there was broad agreement that the Committee of the Regions should be the body that would represent the regional and local interest in this regard. There was also a widespread acceptance that the territorial arrangements of Member States should be respected and that the EU should not attempt to impose a uniform pattern across Member States (although it is difficult to find any group or individual which was advocating this!). There was, however, strong resistance on the part of some Convention members to some of the more radical demands of the regionalist lobby, such as upgrading the Committee of the Regions from a ‘body’ (similar to the Economic and Social Committee) to an ‘institution’ (similar to the Commission, the European Court of Justice, the Parliament and the Council) or to giving regions with legislative powers the right to bring infringements of the principle of subsidiarity to the European Court of Justice. In any case, the importance of this plenary session was that it placed a number of regional and local issues firmly on the agenda of the Convention. Had it not happened, the final outcome would have been much weaker for the regions and local authorities.

Demands by the regions and local authorities What were the regions and local authorities looking for? It is useful to distinguish three principal categories of contributors to the debate on regions and local authorities and the future of Europe. First, there are the European institutions themselves, particularly the Committee of the Regions, but also the Commission and the Parliament. Second, there were pan-European regional associations such as the Assembly of European Regions and the Conference of Peripheral Maritime Regions but also recently founded groups such as Constitutional Regions group and REGLEG, regions with legislative powers.23 The third category includes individual national and/or regional governments and assemblies, many of whom were also members of the above associations. 22

Summary report on the plenary session: 6 and 7 February 2003, CONV 548/03. These groups overlap. The first group was founded by the Flemish Government and includes Bavaria, Catalonia, Nordrhein-Westfalia, Salzburg, Scotland, Wallonia. The second originated in the Council of Europe and currently has 72 members. See REGLEG, ‘The regions with legislative power in the framework of the next institutional reform of the EU’ (2002); a good analysis of this group is also provided by D Scott, ‘Constitutional Regions and the European Union’, paper presented to the Richard Commission on the Powers and Electoral Arrangements of the National Assembly for Wales in a meeting held at the University of Aberystwyth, 2002. 23

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The Regional Question, Subsidiarity and the Future of Europe 165 What is striking about the different submissions made by these groupings is the broad consensus achieved by them on the principal questions. First, most were agreed that the Committee of the Regions should be strengthened both as an institution and in its role in the legislative process, especially with regard to guardianship of the principle of subsidiarity. There was general agreement that the new Treaty should give greater constitutional recognition to subnational authorities and many suggested that the European Charter of Local SelfGovernment should be incorporated into the Treaties. There was also a push for recognition that regional and local democracy were essential elements of democracy itself alongside national democracy. There were a few more regiosceptic voices such as the Finnish local authorities association or some voices in the Northern Ireland Assembly, who were probably also somewhat eurosceptic. These were concerned to prevent the EU from intervening in the domestic territorial arrangements of individual states. In fact, no-one was suggesting that this might happen and, indeed, almost all of the regional lobby insisted that it was a sacrosanct constitutional principle that the EU cannot intervene in this way. Although there was such a general consensus, each organisation set out its demands in relation to its own interest. Thus, the Committee of the Regions (CoR), concerned primarily to enhance its position in the institutional architecture of the EU, had originally demanded: — Recognition of the CoR’s status as an institution. — Power to bring actions before the Court of Justice, at least in defence of its prerogatives and the subsidiarity principle. — Strengthening of the functions of the Committee by these going beyond their current purely consultative functions: the right of a ‘suspensive veto’ in some cases of mandatory consultation; the right to attend the dialogue between the Council, EP and Commission in the co-decision procedure; sanctions in case of failure to consult CoR where this is mandatory; requirement to justify failure by institutions to take into account the Committee’s opinions in all areas where this is mandatory. — The list of subjects for mandatory consultation should be extended to all areas related to powers of regional and local authorities, for example agriculture, research and technological development. — Right to address written and oral questions to the Commission. — Co-decision functions in specific areas. The Assembly of European Regions (AER) supported this strengthening of the Committee of the Regions but, in addition, took a much stronger and maximalist ‘political’ line, seeing itself as the representative of the wider ‘regional interest’ in Europe.24 The AER stated that ‘[The] legal, political and administrative 24 Assembly of European Regions, ‘Meeting with President Valéry Giscard d’Estaing, President of the European Convention: Contribution by the Assembly of European Regions’ Valencia, 7 March, 2002.

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166 John Loughlin existence [of the regions] should be fully recognised at European level’ and that ‘The European institutional framework should establish the Europe of the Regions as a third level of government’. On more specific issues, they asked that there be a clearer distribution of competences across the different levels of government; regions [in general] should have the right to bring breaches of subsidiarity before the European Court of Justice; regions should be direct partners in cohesion policy in view of the forthcoming enlargement; and regional development should be based on the principles of sustainable development. The AER represents the wider regional interest including both ‘legislative’ and ‘non-legislative’ regions. The legislative or constitutional regions, however, have a set of interests rather different from the wider regional interest community. Basically, their argument is that they have a legislative responsibility for EU legislation, which is sometimes directly transposed by the regional parliament, without passing through the national parliament, as is the case with Scotland.25 These parliaments, however, have little direct input into the legislative process at EU level where this legislation originates. Furthermore, in many cases, the competences for which regional parliaments are responsible are the same competences that exist at EU level (for example, agriculture or regional economic development) but, again, they are not directly involved in the formulation of policy in these areas, although they must bear the burden and cost of its implementation. The latter point, though, is also true of those regions without legislative powers. In any case, the Grouping of Constitutional Regions and REGLEG, the group of regions with legislative powers, made submissions to the Convention in order that these aspects of their situation might be taken into account. To some extent they were the same demands already made by the CoR and the AER but with the addition of being themselves given explicit constitutional recognition in the Treaty as well having a special function of being allowed to refer breaches of the subsidiarity principle to the European Court. The third grouping of regions involved were the individual regions or national governments who made submissions on their behalf. By and large, with some exceptions, such as the Finns and some Northern Irish (mainly Unionists in the Northern Ireland Assembly), these regions endorsed the general position outlined above, even if there were differences. Broadly speaking, all endorsed the strengthening of the CoR and the constitutional recognition of regions and local authorities in the Treaty. On the other hand, some of the regions without legislative powers were rather unhappy with the line taken by the constitutional regions and REGLEG, which they felt put them at a disadvantage and created a two-tier system of regions. Some of the individual contributions were interesting as they indicated a new mood on the part of some national governments. In an interesting turnabout from its traditional position on these questions, the UK 25 This applies to those regional parliaments with powers of primary legislation, as with the Scottish Parliament or the Northern Ireland Assembly. In the case of the National Assembly for Wales, which has only powers of secondary legislation, the transposition occurs at Westminster.

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The Regional Question, Subsidiarity and the Future of Europe 167 government, represented by Peter Hain, Secretary of State for Wales presented a policy paper26 at the February plenary session, which contained the following recommendations: a Treaty reference acknowledging the role of regions in the EU; a specific endorsement of the role of regions in relation to subsidiarity; mandatory consultation by the Commission; early warning systems on proposals; reform of the Committee of the Regions. Outcomes To what did all this intense mobilisation and lobbying activity lead? Given the predominantly stato-national and EU institutional bias of the majority of Convention members, it was unlikely that all or even most of these demands would be taken into account by the Convention. On the other hand, several of the demands were taken into account and, to be fair to the Convention, an attempt to incorporate the regional and local interest was made. A key issue in the deliberations was the question of subsidiarity. The main Working Group on the Principle of Subsidiarity submitted its report to the Plenary Session on 3–4 October 2002, although some of the issues were also relevant to other Working Groups, such as the one on Complementary Competences. The Working Group’s report must be seen as a disappointment for the regionalists. It understood subsidiarity as mainly concerned with relations between Member States and the EU institutions, and put into the background the question of relations of these two levels with subnational authorities, even those with legislative powers. On the other hand, it did recommend a strengthening of the Committee of the Regions. The following were its principal recommendations: — The obligation for the Commission to attach a ‘subsidiarity sheet’ to its proposals. — The setting up of an ‘early warning system’ to allow national parliaments (but explicitly ruling this out for regional parliaments) to give their opinions at the start of the procedure on whether or not the Commission’s proposals are in conformity with the principle of subsidiarity. — The Committee of the Regions may appeal to the Court of Justice in the case of texts concerning areas on which it is consulted in the normal context of its duties. However, it explicitly ruled out allowing individual regions and local authorities this right. — It ruled out the creation of an ad hoc body responsible for monitoring the application of the principles of subsidiarity and proportionality. 26 This paper had been drawn up by teams from the Scottish Parliament and the Welsh Assembly, although the Northern Ireland Assembly was not so much involved given the difficulties of simply keeping the Assembly functioning during this period. Although Mr Hain was speaking on behalf of the UK Government, it is not clear to what extent this position paper was endorsed by Cabinet and Mr Blair, the Prime Minister.

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168 John Loughlin It is clear from these recommendations that the ‘winners’ in the contest to see who would be the ‘guardians’ of the principle of subsidiarity were the national parliaments and, to some extent, the Committee of the Regions. The demands of the legislative regions and the constitutional regions were ignored.27

The draft Treaty In its Opinion responding to the position of regional and local authorities in the draft Constitution, the Committee of the Regions highlighted some of the more positive elements that it considered were present:28 — the importance attached to fundamental rights and values [including subnational government]; — the respect shown to local and regional self-government; — the recognition given to cultural and linguistic diversity; — the inclusion of territorial cohesion among the objectives of the Union; — the acknowledgement of the importance of grassroots in the Union; — the new definition of the principle of subsidiarity; — the earlier consultation of representative associations and civil society on the introduction of draft legislation; — the involvement of the Committee of the Regions in the process of ex-post monitoring of the application of the principles of subsidiarity and proportionality; — the granting to the Committee of the Regions of the right to institute proceedings before the Court of Justice to defend its prerogatives; — the lengthening of its members’ term of office from four to five years in line with the European Commission and Parliament. The Committee pointed to the possibility of gaining new areas of obligatory consultation and recognised that this, along with the new tasks with regard to the European Court as well as new relations with the European Parliament and the Council of Ministers (participating in Council meetings) would necessitate an internal reorganisation. The Committee, however, pointed to areas which it considered to be still in need of strengthening:29 — an expansion of the CoR’s areas of mandatory consultation to policies which have a direct local and regional impact to include agriculture, State aids and services of general interest, research and development, industry and immigration, social protection, security and justice;

27

See more fully the contribution of S Weatherill to this volume. Opinion of the Committee of the Regions on the CoR proposals for the Intergovernmental Conference 2003, CdR 169/2003 fin, Art 1.16. 29 Ibid Art 2. 28

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The Regional Question, Subsidiarity and the Future of Europe 169 — the current consultative role should be strengthened by stipulating that the CoR be consulted in areas of shared competence, in measures to coordinate economic and employment policies, and in areas of supporting, coordinating or complementary action; — in addition to the European Parliament, the Council and the national parliaments, the CoR should be referred to in Title VI on the democratic life of the Union and Article 45 on the principle of representative democracy, given that its members represent the democratic principle of proximity at the heart of the Union; and regional ministers should be given the right to take part in Council meetings, in accordance with Article 203 of the EC Treaty; — cross-border and inter-regional cooperation should be included in Part III especially in view of the [forthcoming] enlargement where this will be a key issue. Finally, of course, the Committee of the Regions, despite these gains, retains its status as a ‘body’ and does not become an ‘institution’, although the above Opinion does not advert to this.

THE REGIONAL QUESTION AND THE FUTURE OF EUROPE

It is clear that the mobilisation of the Committee of the Regions, the regional and local authority associations and individual regions and local authorities had a modest success but did not succeed in achieving all their goals. This does not mean that the regional question is ready for a new demobilisation as happened after Maastricht. On the contrary, the Convention has stimulated a new awareness of the territorial question and this is once again on the political and policy agendas. Furthermore, it is today inconceivable that the question of European governance could be discussed without reference to the multi-level dimension. The Intergovernmental Conference provided another opportunity to influence the evolution of the EU—although, so far as the regional dimension was concerned, it proved content to adopt the proposals advanced at the Convention in its agreed text of June 2004. The following points might be made by way of conclusion:

The Committee of the Regions — This body has emerged strengthened from the Convention process, albeit incrementally, with real gains to its status and position (contrary to the expectations of many commentators who had dismissed it as simply another Economic and Social Committee). — Recent proposals from the Commission (formulated, it is true, outside the Convention framework) on the consultation of regional and local authority