School of Law, Liverpool John Moores University, Liverpool, UK
Sub-national authorities are an integral part of the European edifice and enjoy rights and duties in accordance with the asymmetric constitutional mosaic resulting from the combination of EU and domestic constitutional laws (multilevel constitutionalism theory). A number of elements corroborate this submission:
1) In the EU multilevel system, Treaty making/amendment is not an exclusive prerogative of the Member States. In some Member States, the sub-national authorities are involved in these processes, and in the case of Belgium each regional parliament can veto the entry into force of a new Treaty.
2) The lawmaking process in the Council is not entirely ‘State dominated’. The sub-national entities enjoy participation rights that result from the combination of EU and national processes.
3) Sub-national authorities have a duty to comply with EU obligations and at the same time a right to implement EU law and policy in the areas falling within their responsibility. In a number of Member States, failure by a sub-national authority to comply with EU obligations causes a financial liability of the responsible sub-national authority and could also originate the exercise of State substitution powers. At the same time, infringement proceedings initiated by the Commission are not necessarily a matter concerning exclusively the Member State; the sub-national authorities in some Member States are involved in those proceedings.
4) The ECJ’s jurisprudence on locus standi is rather ‘State centric’, insofar as the sub-national authorities are granted limited rights to challenge Union acts directly before Union Courts. However, a holistic analysis embracing both the EU and the Member State levels reveals that in some Member States the sub-national authorities can oblige the Member State to initiate judicial proceedings on their behalf. The Treaty of Lisbon introduced the Committee of the Regions’ right to bring a direct challenge before the ECJ on grounds of subsidiarity, as well as the right of each chamber of national parliament (including second chambers representing the sub-national authorities) to oblige the State to bring a direct challenge before the ECJ on grounds of subsidiarity.
The status of the sub-national authorities in the EU multilevel system (i.e., the EU-related rights and duties of the sub-national authorities) enjoys a considerable degree of strength and stability. The legal position of these authorities is an outcome of the EU as a ‘compound of constitutions’ (Verfassungsverbund 1) since their position is rooted in the EU primary law (the ‘constitutional charter’ of the Union) and in the State constitution. Accordingly, in addition to its ‘political’ dimension (descriptive), multilevel governance, to be intended as the way the various levels of governance shall be linked and work with each other, also has a ‘legal’ dimension (prescriptive). This legal dimension shall be reflected into hard law (as well as soft law arrangements) at national and Union levels. Soft law arrangements, alone, do not necessarily provide the stability that is required for the achievement of the strategic Treaty objectives linked to multilevel governance in the EU.
Multilevel governance is a principle resulting from the EU constitutional composite and, more precisely, a ‘procedural’ principle commanding a ‘method of governance’. It is linked to the achievement of substantive key objectives of the Union. These are the protection of regional/local self-government as an integral part of the national identity (cf. Article 4(2) TEU), the principle of subsidiarity (cf. Article 5(3) TEU), the principle of openness and closeness to the citizen (cf. Article 10(3) TEU). According to the Committee of the Regions’ White Paper of 2009 and to the European Charter of 2014, multilevel governance commands participation and involvement of the sub-national authorities in EU lawmaking and policymaking and in the implementation phase of EU law and policy.2 The previous analysis has demonstrated that this involvement is required by the Member States’ constitutions in order to protect regional and local autonomy as an essential feature of their constitutional identity. It is also required by EU primary law since the Union must respect the ‘national identity’ of the Member States, to be understood as their ‘constitutional identity’ (cf. Article 4(2) TEU).
Despite a number of analogies with some traditional forms of government such as federalism and regionalism, multilevel governance has an own conceptual autonomy in that it creates a unique multilevel game among supranational, national and sub-national players in the context of the EU multilevel system. At the same time, the constitutional requirement of participation of the regional and local authorities in EU governance creates a strong similarity between multilevel governance and cooperative federalism. It is not a case that some scholars describe the multilevel participation that is typical of multilevel governance in the EU as ‘double political entanglement’ (doppelte Politikverflechtung). In this way, they establish a parallel between multilevel governance and the German model of cooperative federalism.3
The raison d’être of multilevel governance is to contribute legitimacy to the participation of the Member States in the EU and to the EU decision-making activity. Legitimacy (objective ‘input legitimacy’ erga omnes) can be conveyed only by structured participation procedures at national and EU levels, provided that these meet certain criteria (openness, equality and effectiveness). Mere lobbying by single regions or their associations can be fruitful for these regions and lead to subjective ‘output legitimacy’, but it does not achieve full and objective legitimacy.4 The implementation of multilevel governance is required for legitimacy of Member States’ participation in the EU and, as a result, for the legitimacy of the EU lawmaking and policymaking and of the Union as a supranational organisation. The core idea of multilevel governance is similar to the concept of ‘participation to compensate the loss of autonomy’, which characterises the German federal system. In Germany, the Länder have suffered over the years an erosion of their statehood, due in particular to the increasing concentration of legislative power in the hands of the Federation.5 However, at the same time, the Länder obtained important rights of participation in the exercise of federal powers through the Bundesrat, the chamber representing the Länder on the federal level. In the EU, which embraces both Member States and infra-state units (EU atypical multilevel system), some participation rights must be granted also to the infra-state entities. The EU multilevel system is asymmetrical, and the participation rights of the sub-state entities depend largely on the role assigned to each tier of government in the constitutional system of each Member State. The Union shall prompt tools that the Member States and their sub-national entities have the right to use. For example, the Union allows for the participation of regional ministers in the Council (cf. Article 16(2) TEU); the Union also features an ad hoc body, the Committee of the Regions, representing a (hypothetical) ‘third level’; last but not least, the Union has created instruments promoting sub-national involvement in the EU decision-making process and/or in the implementation of EU law and policy (for example, the ‘structured dialogue’ and the tripartite contracts). All these mechanisms follow the logic of multilevel governance, whose aim is to reconcile the constitutional standing of the infra-state units and supranational integration in the EU. In this way, multilevel governance arrangements can legitimise the European system of governance through an effective involvement of the sub-national entities in the making and in the implementation phases of EU law and policy.
As an all-embracing principle commanding a ‘method of governance’ for the EU, multilevel governance is expected to have an impact on other cornerstone principles of the EU such as subsidiarity. This is a fundamental constitutional principle in the EU, Germany and Italy. In all these systems, subsidiarity aims primarily to protect the autonomy of the lower echelons of government by favouring proximity of power to the citizen. Multilevel governance is based on ‘coexistence and interaction’, i.e., autonomy of and coordinated action/cooperation between different layers of government. By contrast, subsidiarity embodies the idea of ‘exception’, i.e., that only exceptionally powers shall be exercised by higher layers of government, the rule being proximity of governance to the citizen.6 Subsidiarity became a judicially enforceable principle both in Germany and in Italy, even though, more often, courts have upheld the ‘exception’ (i.e., action by the central authority), rather than protecting proximity. Subsidiarity typically became a tool justifying intervention by the central authority. The key role of multilevel governance in relation to subsidiarity is to promote a shift of focus from the negative (exceptionality of the intervention by the central authority) to the positive, inclusive, aspect of subsidiarity, i.e., that all the layers of government must contribute, in areas of their responsibility, to the achievement of the Union’s objectives. In the multilevel systems analysed (Germany, Italy and EU), the appropriate locus for the enforcement of subsidiarity is not the courtroom but participation in the lawmaking and policymaking processes in accordance with partnership and loyal cooperation. Judicial enforcement plays a role only if there is a clear or evident abuse, i.e., where the attribution of a certain power to the central authority is illogical or untenable. Multilevel governance requires ‘co-governance’ by a plurality of levels of government of a field in which a power is exercised by a central authority but in which essential interests of the other levels are also at stake. In this way, cooperation also addresses the issue of legitimacy of authoritative decision-making. This is a fundamental feature of the early warning system, whose proper functioning requires the involvement of national parliaments and of regional parliaments with legislative powers. The early warning system, despite the difficulties of its functioning, ‘proceduralises’ the principle of subsidiarity, insofar as it creates a two-way communication channel between the institutions and the parliaments and promotes multilevel dialogue. This implies that the role of the CJEU for the enforcement of subsidiarity, apart from extreme and unlikely events of clear or evident abuse of power by the EU, could be confined to the enforcement of a procedure of political negotiation.7< div class='tao-gold-member'>