Introduction: A Legal Study of Multilevel Governance

The notion of ‘governance’ is typically used to indicate a new mode of governing that is distinct from the hierarchical model of the past. It is a cooperative mode of governing where non-state players are involved in authoritative decision-making in the public sphere through public or private networks. Significantly, Schmitter and Kim write that ‘MLG can be defined as an arrangement for making binding decisions that engages a multiplicity of politically independent but otherwise interdependent actors – private and public – at different levels of territorial aggregation in more-or-less continuous negotiation/deliberation/implementation’ (emphasis added).¹ Accordingly, in the phrase ‘multilevel governance’, the adjective ‘multilevel’ refers to the increased interdependence between different political arenas (national, sub-national, supranational), whilst the term ‘governance’ signals the growing interdependence between public authorities and nongovernmental actors at various territorial levels.² Aligned with the Committee of the Regions’ 2009 White Paper on Multilevel Governance, this study focuses on the role of public authorities that are expression of a territorial community (territorial authorities),³ that is, according to the terminology used by the Italian legal scholar Massimo Severo Giannini, those public authorities (including the state) that are ‘enti esponenziali di collettività’ (‘exponential entities’, or better ‘representative institutions’, of territorial communities).⁴

The notion of multilevel governance that emerges from the literature is mainly descriptive and does not offer prescriptive guidance as to how the EU ought to function. This submission is confirmed by an analysis of the most influential studies on multilevel governance. For example, Hooghe and Marks clearly illustrate the descriptive nature of the concept when they write that ‘Multi-level governance […] describes the dispersion of authoritative decision making across multiple territorial levels’.⁵ Also, Piattoni, whose work is partly concerned with the normative value of multilevel governance, adopts a descriptive approach: ‘MLG indicates interrelated changes in political mobilization, policy-making, and polity restructuring; in particular, it indicates: (a) the participation of subnational authorities in policy-making at levels and through the procedures that defy existing hierarchies and may further upset their stability; (b) the mobilization of societal actors at all territorial and governmental levels and their contribution to policy-making, implementation and monitoring; (c) the creation and institutionalization of governance arrangements that see the simultaneous involvement of institutional and non-institutional actors and that, by accretion, reconfigure the supranational level as a fundamental level of government’.⁶ George does not depart fundamentally from the same descriptive pattern when he writes that ‘As a distinct perspective on the European Union, multi-level governance offers not a description, but a theory of what sort of organization the European Union is. It is hypothesized to be an organization in which the central executives of states do not do all the governing but share and contest responsibility and authority with other actors, both supranational and subnational’.⁷ Even if this hypothesis proved valid, it would only help one to understand the nature and functioning of the Union. However, we would know nothing or very little in relation to how the EU ought to be organised to comply with multilevel governance. In particular, we would not know if or why the EU ought to be organised, and the decision-making structured, in a certain way.

Why study multilevel governance, rather than analysing or further developing another notion, such as the more traditional concepts of ‘federalism’ or ‘multilevel polity’? The concept of federalism appears too specific and not fit for purpose. By requiring a central authority with sovereign power (the federation), that notion could be confusing in the European context. Indeed, there is no doubt that the Union, despite many similarities with federal states, is not a fully fledged federation.⁸ On the other hand, the notion of ‘multilevel polity’ appears too generic and all purpose to be really useful. Any multilevel entity, from a federal state to an atypical organisation like the EU, could be correctly described as a ‘multilevel polity’ or ‘system’. By contrast, the concept of multilevel governance emerging from scholarly works on EU integration and the Committee of the Regions’ White Paper on Multilevel Governance ⁹ is becoming a key concept specifically for the EU. Accordingly, rather than focusing on other notions or creating an alternative conceptuality, it appears more promising to study multilevel governance from a different and as yet unexplored angle: that of legal scholarship.

There are some fundamental reasons for studying this topic from a legal perspective. Until now, the concept of multilevel governance has remained the almost exclusive domain of political science and of some official documents outlining the future strategy and development of the EU.¹⁰ The phrase ‘multilevel governance’ is often used by legal scholars as an evocative formula pointing to the multilayered and polycentric structure of the EU, without attaching to it a specific legal meaning. Single aspects of multilevel governance in the EU have been the subject of legal studies, especially those dealing with the involvement of regional and local authorities in the EU lawmaking process.¹¹ However, to date, no legal study has analysed multilevel governance as such, on its own, using the criteria that are typical of the legal discipline. The absence of substantial legal research on this fundamental theme is the first justification for an analysis of multilevel governance from a legal perspective.

Another important reason for studying multilevel governance from a legal perspective is that there is a clear and still ongoing shift towards a ‘prescriptive’ notion of multilevel governance. The Commission’s White Paper of 2001 and especially the 2009 Committee of the Regions’ White Paper on Multilevel Governance refer to multilevel governance not only in descriptive terms (what multilevel governance is) but also in ‘prescriptive’ terms (which model of multilevel governance, what has to be done to establish multilevel governance). Recently, this approach has culminated into the adoption by the Committee of the Regions of the Charter for Multilevel Governance (April 2014).¹² This is a first attempt to ‘codify’ multilevel governance, even though in the form of ‘soft law’.¹³ At the same time, multilevel governance became an important subject of EU (hard) secondary law. For example, Regulation (EU) No 1303/2013 on EU funding for economic, social and territorial cohesion indicates multilevel governance as a ‘principle’ to be respected by the Member States when creating partnerships with the sub-national authorities for the implementation of the EU economic, social and territorial cohesion policy.¹⁴ Legal scholarship is obviously equipped to study prescriptive phenomena and legal frameworks. Accordingly, the legal perspective permits a more enhanced understanding of the concept and the logical and legal implications of multilevel governance in the EU.

The most important contribution of the legal perspective, however, comes from the approach typical of legal discipline. Lawyers investigate the rationale for a legal framework or regulation. This is the underlying raison d’être of a specific legal arrangement. Multilevel governance is reflected in legal arrangements at EU and national levels, and the raison d’être of these arrangements can be understood best through legal analysis.

In the second chapter, I will construe the Union as a multilevel system that includes a ‘sub-national’ dimension. In contrast with the mainstream legal literature on European integration, which focuses on the Union-Member States dichotomy and sees the sub-national authorities as components of the state, I will argue that the sub-national authorities are an integral part of the EU atypical multilevel system and have the status of ‘full subjects’ within that system, i.e., they enjoy ‘rights’ and ‘duties’ stemming from the European constitutional composite.

In Chap. 3, I will argue that multilevel governance is a legal principle commanding the involvement of the sub-national authorities in the EU decision-making process and in the implementation of EU law and policy. In this way, multilevel governance emerges as a ‘procedural’ principle, i.e., as a principle commanding a certain decisional ‘procedure’. Such involvement is required for the protection of the constitutional identity of the Member States [cf. Art. 4(2) TEU] and, accordingly, for the legitimacy of the Member States’ participation in the EU and of the EU decision-making process.

In Chap. 4, I will discuss the principle of subsidiarity, which is considered a cornerstone of the multilevel architecture of the EU. I will argue that, like the principle of multilevel governance, subsidiarity too is a ‘procedural’ principle, i.e., a principle that can only exceptionally be judicially enforced and that should normally be implemented through multilevel participation and cooperation.

In Chap. 5, I will deal with the responsibility of the sub-national level for European integration. Indeed, regional/local participation is not only a responsibility of the EU and of the Member States. Sub-national authorities must also take their European role seriously and engage in the making and implementation of EU law/policy. I will analyse three case studies representative of three different constitutional patterns: (1) Baden-Württemberg (Germany, component of a typical federal state), (2) Lombardia (region of a typical regional state), (3) Merseyside (region of England, now incorporated by Liverpool City Region Combined Authority).

In Chap. 6, I will deal with the constitutional dimension of multilevel governance. I will argue that the concept of multilevel governance is not limited to soft law and it is embedded in the constitutional structure of the EU. I will also examine the role played by multilevel governance in constitutionalism and democracy in the EU.

A crucial element to take into account is that the ‘sub-national level’ is not a homogeneous level of government.¹⁵ This is a large category containing many different types of entities, from regional (e.g., the Spanish Self-Governing Communities or the Italian Regions) to local (e.g., municipalities), to even regional entities claiming to be states in their own right within a federal framework (German Länder ¹⁶). Accordingly, multilevel governance too will have a different application for the different types of regional or local authorities existing within the EU.