The Constitutional Dimension of Multilevel Governance in the EU
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School of Law, Liverpool John Moores University, Liverpool, UK
A. The EU Polycentric System of Governance
A territorial authority is the expression of a territorial community that normally includes all the people who reside in a certain larger or smaller territory. Among the territorial authorities, the state reflects what legal scholars often indicate as ‘state community’, i.e., a group that may coincide with the ‘nation’, the ‘citizens’ or, more extensively, all those who, irrespective of their nationality, live in a certain territory or are anyway subject to the regulatory and coercive power of a given state.1
A community, however, is not the only constitutive element of a territorial authority. A territorial authority must have a territorial jurisdiction and an institutional structure, that is, it must have an organisation and rules that apply to the organisation and the members of the group (for example, the rules on the organisation of the state or of a municipality, a state law regulating certain economic activities, the building or traffic regulation of a municipality, etc.).2
The sub-national territorial authorities are characterised by the fact that they are ‘self-governed’, i.e., they enjoy some political autonomy within the framework of the nation-state and are entitled to pass democratically legitimated decisions on issues falling within their territorial and material remit.3 In the context of a ‘multilevel polity’, i.e. of a polity like the contemporary state, constituted by a plurality of levels of government (central, regional, local), no territorial authorities may exist in isolation. These coexist and interact in a number of ways with the other levels of government.
Typically, the sub-national authorities are established, and their essential elements are regulated by the state constitution (for example, in relation to their fundamental role and prerogatives). In a sense, the sub-national authorities are ‘created’ by the state, if not historically (many sub-state groups and entities pre-exist the state), at least legally, insofar as they derive their current authority from the state constitution. However, thanks to their autonomy, they live their own life and are subject to the state only to a limited extent. For example, they can create their own networks with other sub-state authorities nationally and internationally, including their contacts with the EU through offices in Brussels and/or European associations of sub-national authorities.
European integration places a further echelon of power above the nation-states, at supranational level. Since its foundation in 1957 and up to now, the Community (later Union) has seen its sphere of activity expanding both territorially, due to its progressive enlargement, and materially, because of the inclusion of an increased range of powers in the Treaties and because of the judicial activism of the ECJ. Accordingly, also the nature and role of the European nation-state have changed dramatically since 1957, with an increasing shift of power from the domestic to the supranational arena.4
The Union is able to enlarge its sphere of competence by using the procedure set in Article 352 TFEU, but this requires unanimity among the Member States. Also, despite the pro-integration activism of the Court of Justice, which introduced the principle of supremacy of EU law, direct effect, the doctrine of indirect effect, the principle of State liability, etc., there is a compelling argument testifying the survival of the core of state sovereignty. Even if the Union has been created for an unlimited period of time, the Member States have the right to dismantle it through a new treaty or to withdraw from the Union. In this way, they can still theoretically do what the units of a typical federation are not entitled to do; they can recover their original full sovereignty. Accordingly, from a strictly legal point of view, the ultimate sovereignty continues to belong to the Member States.5
Yet denying that the Member States have significantly diluted (or ‘fused’6) their sovereignty within the Union would simply overlook legal and political realities. The impact of the Union on the national (and sub-national) level is much broader than one can read at first glance in the Treaty. All the traditional ‘hard cores of sovereignty’ have been affected by European integration. Key decisions concerning welfare and taxation, especially in the Member States belonging or aiming to join the Eurozone, are largely under the influence of the EU. The Member States remain in control of some traditional aspects of state sovereignty, such as police, foreign policy, defence, albeit even these are subject to increasing forms of coordination on the EU level through Police Cooperation and the Common Foreign and Security Policy, respectively.7
The greater presence of the regions on the EU level is closely linked to the constitutional evolution that has taken place in some Member States since the creation of the European Community. A considerable wave of decentralisation has swept across the Member States between the 1970s and the early years of the new century. Important milestones of this transition are the Italian Regions becoming operational in 1970,8 the full transformation of Belgium into a federal state in 1994,9 the progressive creation of a ‘unitary decentralised state’ in France since 1982,10 the introduction of devolution in the UK in 199811 and the constitutional reforms in Germany in 1994 and 2006 aiming to strengthen the position of the Länder at home and in the EU.12 The net result of this situation is that now the sub-state territorial communities do enjoy a much stronger role in the EU multilevel system of governance. If until approximately 1992 (Treaty of Maastricht) the EU could be plausibly described as a system of ‘concentric circles’ (EU, Member States, sub-state levels) with the nation-state as its fulcrum, since 1992 the situation is substantially different and the EU appears to be a more ‘polycentric’ system of governance in which the nation-state has handed over considerable part of its previous fulcrum role both upwards, to the Union, and downwards, to the sub-national authorities.
B. Multilevel Governance in the EU ‘Constitutional Space’
A constitution is a fundamental law dictating crucial aspects of the life of a polity, such as the allocation and exercise of political power, the basic relationship between the government and the governed, the civil, political and social rights of the citizens. In the EU Member States, it would be impossible to find all the answers concerning the constitutional system only by looking at a single national constitution. This is due to the fact that a considerable portion of political power is vested in the EU. Accordingly, the Union is concerned with the same fundamental constitutional questions that, prior to European integration, were limited to the state. The regulation and limitation of power, checks and balances, the protection of fundamental rights and nearly every other constitutional problem all gained a crucial space on the European agenda. Constitutional language and methodology do no longer apply exclusively to the state and are increasingly used in relation to the work and structure of the European edifice. A European constitutional space has emerged consisting of the constitutional laws of the Member States and of EU law.13
This feature of the European legal system is well captured by von Bogdandy’s description of it as a system of ‘partial’ or ‘complementary’ constitutions (Teilverfassungen), both dealing with the same fundamental problem, the exercise and limits of public power.14 In a similar way, Pernice develops his ‘multilevel constitutionalism’ theory, which construes the European legal system as a ‘constitutional composite’ (Verfassungsverbund) resulting from the national constitutions and the EU primary law, once again highlighting that the national constitutions do no longer cover the entire spectrum of exercise of public power within the EU sphere of influence.15
Multilevel governance is a product of the European legal/constitutional space. This concept is not linked exclusively to the national legal order or to the EU legal order. Its constitutive elements stem from the combined and coordinated work of the national constitutional system(s) and of the EU. Only a holistic approach, the combined analysis of the domestic system(s) and of the EU, can provide a satisfactory answer in relation to the status of the sub-national authorities in the EU or in relation to the coordination between sub-national authorities and the EU. Multilevel governance is legally and methodologically part of the complex European constitutional space. As suggested in Chap. 2, a number of elements corroborate this submission:
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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)
The sub-national authorities have a duty to comply with EU obligations and at the same time a right to implement EU law/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 EU-related State substitution powers. At the same time, infringement proceedings initiated by the Commission are not necessarily a matter regarding exclusively the Member State; the sub-national authorities in some Member States are involved in those proceedings.
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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 level 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’ since their position is rooted in the EU primary law (the ‘constitutional charter’ of the Union) and in the State constitution. Accordingly, multilevel governance is not, cannot be, limited to ‘politics’ and ‘soft law’. This submission will be further scrutinised in the next section.
C. Multilevel Governance Beyond Soft Law
The Lisbon Treaty has rearranged multilevel governance in the EU by acknowledging the role of the sub-national authorities in the architecture of the EU. The key Treaty provisions in this respect are the following:
Article 4(2) TEU, pursuant to which the Union shall respect the national identities of the Member States ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’ (emphasis added).
Article 5(3) TEU, according to which ‘in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed 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’ (emphasis added).
Article 10(3) TEU, which entails the aspiration that decisions shall be taken as openly and as closely as possible to the citizen. This provision is part of Article 10 TEU, which is devoted to the democratic principle.
From the Treaty of Lisbon, it emerges that the full realisation of three key principles of EU law (protection of national identities of the Member States, subsidiarity, democracy) requires not only that the powers of the sub-national authorities are protected (protective function of multilevel governance) but especially that the sub-national authorities perform an active role in the EU (dynamic and creative function of multilevel governance). This is particularly evident in the involvement of regional parliaments with legislative powers in the early warning system (cf. Article 6(1) of the Lisbon Subsidiarity Protocol) and in the fact that, if possible, political and administrative decisions shall be taken by the level of government that is closest to the citizen (cf. Article 10(3) TEU). The Treaty of Lisbon aims to enhance significantly the role of the sub-national authorities in order to strengthen subsidiarity and democracy and to ensure the full respect of national identity. In this way, the Treaty of Lisbon makes regional and local authorities become protagonists of the strategic objectives set by the Treaty. The framework established by the Lisbon Treaty has to be translated into EU and Member State laws and practices and also into regional law and practice. The voice given to regional authorities must be reflected by an appropriate legal framing, and this must happen at EU, national and sub-national levels. The concept of regional responsibility for European integration (Integrationsverantwortung der Länder) addresses specifically the concern of active participation of the sub-national authorities in the EU and of their willingness and ability to perform an active role in the making phase of EU law and policy (cf. supra Chap. 5).16
The absolute importance of the constitutional objectives that the Treaty of Lisbon aims to achieve through and with the cooperation of the sub-national authorities (protection of local/regional self-government as a key aspect of national identity, subsidiarity, democracy) leads to the suggestion that in most national systems, mere soft law arrangements (such as white papers, non-legally binding agreements, administrative practice, etc.), despite their flexibility and potential impact, do not alone suffice for this purpose. Multilevel governance contributes legitimacy to the participation of the Member States in the EU and to the decision-making activity of the Union (cf. supra Chap. 3). This is another key constitutional objective of the Union and of the Member States, which in most national systems cannot be left solely to soft law arrangements. The achievement of these objectives requires a stability that often only hard law mechanisms can provide effectively. This submission is best understood by looking at one of the landmark EU law cases, Commission v Netherlands (1987), in which the Court of Justice held that ‘mere administrative practices, which by their nature are alterable at will by the authorities’, do not ensure an appropriate transposition of the European directives, i.e., do not ensure the achievement of the objectives established at EU level.17 By the same token and mutatis mutandis (directives entail secondary objectives, whilst the Treaty lays down primary objectives), the change introduced by the Treaty of Lisbon needs to be reflected in an appropriate change in legislation and constitutional law. This conclusion does not wipe out everywhere the potential importance of soft law arrangements. The value of these mechanisms can be mostly symbolic (for example, the European Charter on multilevel governance) or even practical (see, for example, the UK memoranda of understanding binding in honour only,18 which fit perfectly into the peculiar characteristics of the UK constitutional system). It can be concluded that hard law and soft law instruments shall work together towards the achievement of major Treaty objectives (protection of national identity, subsidiarity, democracy through closeness, legitimacy).
Multilevel governance is quite clearly a public law concept. It concerns the exercise of authoritative decision-making, and as a result it does also concern the relationship between the individual citizen and the communities of which he is a member. Multilevel governance demands the introduction at Union, state and local levels of suitable forms of participation of state and sub-state communities in the EU decision-making process and in the implementation of EU law and policy. It also requires an active engagement of the sub-state communities in the EU level. Failure to do so would undermine the achievement of some key objectives established by the Treaty of Lisbon in relation to the protection of a key feature of national identity (regional and local self-government), subsidiarity and closeness to the citizen. Due to its general suit laid down through general propositions, especially by the White Paper on multilevel governance of the Committee on the Regions,19 and due to its lack of specificity, from a legal perspective multilevel governance can be described as a principle requiring a certain ‘method of governance’ rather than as a prescriptive set of specific guidelines or criteria. Failure to implement this principle on the national and sub-national levels does not lead sic et simpliciter to the intervention of the Court of Justice or to an infraction procedure. However, in case of noncompliance with the requirements of multilevel governance, for example in case of absence or inadequacy of the legal framework for regional participation in the EU decision-making process, there exists a space for forms of judicial intervention by the Court of Justice and by domestic courts (particularly by the constitutional courts of the Member States). More specifically, Union courts can play a role
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in relation to the Treaty articles embodying the idea of multilevel governance,
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particularly in relation to the concept of ‘national identity’ of Article 4(2) TEU, and
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in relation to acts of secondary law that contain reference to the concept (principle) of multilevel governance.
Domestic courts can play a role
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for the enforcement of national multilevel governance arrangements,
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in relation to the constitutional review of these arrangements, and
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through the definition of key concepts, such as ‘national identity’, ‘fundamental structures, political and constitutional’ and ‘regional and local self-government’ (cf. Art. 4(2) TEU).20
D. The Multilevel Constitutional Foundation of Multilevel Governance
Multilevel governance lays down a ‘method of governance’ for the EU based on the involvement of sub-national authorities in the making and implementation of EU law and policy. Sub-national territorial authorities are expression of sub-national communities (cf. supra Sect. A). In the words of the Italian legal scholar Massimo Severo Giannini, territorial authorities are ‘enti esponenziali’ (‘exponential entities’ or, better, ‘representative institutions’) of territorial communities. Accordingly, more precisely, multilevel governance requires the introduction and the operation at Union, Member State and sub-national levels of adequate forms of participation of sub-state communities in the EU decision-making process and in the implementation of EU law and policy. Given that consultation and negotiation with the sub-national authorities can take considerable time and resources, the involvement of sub-national entities in the EU decision-making process could impair the efficiency, and particularly the rapidity, of Union decisions. However, albeit the involvement of sub-national players must be engineered in a rational manner and must be as time and cost-effective as possible, it needs to be reminded the ultimate constitutional rationale for regional and local involvement in the EU. This is the legitimacy of Union action and of Member States’ participation in the EU (cf. supra Chap. 3). Therefore, a limited loss of efficiency and rapidity has to be seen as an acceptable price to be paid for the greater good of legitimacy of Union decisions. Mutatis mutandis, this is a similar toll to that which has to be paid to the democratic process in the context of a democratic and pluralistic society. At this stage of the study, it is required a deeper reflection on the nature and content of legitimacy in the context of multilevel governance at Union (1), national (2) and sub-national levels (3).
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Multilevel governance arrangements on the EU level (Committee of the Regions, early warning system, consultation with sub-national authorities and their associations through ‘structured forms’) aim to promote the objective (i.e., erga omnes) legitimacy of the EU decision-making process and ultimately of the EU as an organisation. The legal foundation of the involvement of the sub-national authorities in the EU primary law can be found in three key Treaty provisions: (A) Article 4(2) TEU on the protection of the local and regional self-government by the EU, (B) Article 5(3) on the principle of subsidiarity and (C) Article 10(3) on closeness to the citizen. A Union that would not recognise the role of the sub-national authorities through appropriate arrangements would be at odds with its own constitutional nature as a multilevel system that includes the sub-national authorities and relies on these for the achievement of certain key objectives (protection of national identity, subsidiarity, democracy through closeness to the citizen). Without respect for the role of the sub-national entities, the Union would be undermining the functioning of its own constitutional foundation (the Treaty). At the same time, the Union would be in an irreconcilable conflict with the constitutional laws of those Member States, which attribute crucial importance to local/regional self-government for democracy, separation of powers and good governance. Accordingly, legitimacy for the EU means essentially coherence with its direct (the Treaty) and indirect constitutional foundations (the constitutions of its ‘primary components’, i.e., the Member States). The aspiration of the EU is to legitimise itself and its action erga omnes through procedures that are open in principle to all the sub-national authorities that fit certain objective criteria (for example, participation in the early warning system is limited to ‘regional parliaments with legislative powers’; cf. Article 6(1) Lisbon Subsidiarity Protocol).
The weakness of these forms of regional/local participation on the EU level is that they are not necessarily the most effective routes for single regional and local authorities aiming to obtain tangible results in the framework of the Union decision-making process. For example, the early warning system, for how it is structured, can only exceptionally modify the course of action of the Union, whilst the Committee of the Regions is a merely consultative body despite the increasingly persuasive value of its positions. This situation pushes the sub-national authorities to seek direct contact with the Commission or with MEPs or to use participation channels prompted at national level (for example, the Bundesrat in Germany and other forms of internal coordination at national level).
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The participation mechanisms created at national level aim to align the national system of local/regional self-government with the requirements of European integration. If these mechanisms are inclusive and effective, they allow the attainment of two important constitutional aims: the achievement of key Treaty objectives concerning the protection of national identity, subsidiarity and closeness/democracy and also and especially the protection of the Member State constitutional system of local and regional self-government (constitutional identity of the Member State). In this way, national mechanisms (or sub-national mechanisms, when the involvement of local government authorities takes place on the regional level) ensure the legitimacy of the Member States’ participation in the EU.
The participation channels created at national level to promote regional participation in the Council respond to a logic of objective legitimacy and involve all the authorities belonging to the same level of government (for example, all the regions). The inclusiveness of the national participation routes is not always seen by single authorities (especially those that are more powerful and active in the European arena) as the most effective way to protect their interests. Again, like for participation channels on the EU level, the preference of local and regional players often goes to direct contact with the EU or with the national government.21
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The principal route at regional/local level for participation on the EU level is the creation of regional offices in Brussels with the mission of lobbying the Commission and the MEPs on behalf of the regional/local community. Whilst this participation route is often seen as the most effective by regional/local authorities, because it allows for a direct relationship between the local/regional level and the EU, from a more general perspective lobbying does not appear capable of generating objective legitimacy of Union action. This is due to the fact that politically and economically stronger sub-national players, thanks to greater and better staffed offices in Brussels, are likely to obtain more from their lobbying activity than smaller and weaker players. Also, lobbying is not subjected to procedural rules ensuring an equal weight to all those involved in the negotiation. Yet engagement of the sub-national authorities with the EU is constitutionally required for two reasons: first, because the sub-national authorities, being ‘enti esponenziali’, have the responsibility of pursuing the interests stemming from the local community at any level, be it local, national or supranational, and, second, because these authorities, like any other national authority or body, have to collaborate for the achievement of all the Union objectives, including the Treaty objectives that command additional sub-national participation in the EU (‘responsibility for European integration’, cf. supra Chap. 5).
It is absolutely crucial that the regional offices are accountable to the local community. Only in this way could it be said that the EU has been brought as closely as possible to the citizen (cf. Art. 10(3) TEU) and that the local community is involved in the work of the EU. The Brussels offices of the German Länder and of the Italian Regions are departments of the Land or regional executive branch, and as such they report to the Land or regional minister, who, in turn, is accountable to the Land or regional parliament (cf. supra Chap. 5). Things are more complicated for English local authorities, where often the offices are not an institutional part of the local government (like in Merseyside until the recent creation of the Liverpool City Region combined authority on April 2014). They are created by local partners and accountable to a board of managers appointed partly by democratically representative bodies (local authority councils) and partly by non-elected organisations (local service providers, police authority,22 academic institutions and even local enterprises). The closeness credo of the EU requires that accountability is established towards democratically elected local assemblies. At the same time, openness (which is coupled with ‘closeness’ pursuant to Article 10(3) TEU, ‘as openly as possible to the citizen’) requires that the action of the offices is also communicated to the wider community through meetings with the public and any other appropriate channel (local newspapers, radio, TV, Internet, etc.).
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