Europe in Search of Legitimate
Governance
Beate Kohler-Koch
"They just want our best, but they won't get
it"
(university graffiti)
I will present my argument in 5 steps:
- confront you with the message I want to sell,
- analyse the driving forces of constitutional
development,
- claim that the search for legitimate governance
is a mirror of organisational interests,
- reflect on how intentions and ideas merge into a
not so pleasant institutional environment,
- raise the question of the main priorities for
safeguarding legitimate governance in a Union of
states and peoples.
1 Message
Europe, this is evident, is not the subject but the
object of the search for legitimate governance.
Furthermore, in an academic discourse people might insist
that we should be more precise in our phrasing because in
a strict sense we are talking about the European Union
and nothing else. I dare to disagree because the way the
EU is governed will also affect the future of legitimate
governance in the member states and - though to a lesser
degree - in the neighbouring non-member states.
Therefore, it is in our common interest to take up the
issue of legitimate governance in Europe and - if
necessary - fight the slow erosion of democracy that
comes along with European integration.
Fighting for democracy is the stake holders view, but
it is the share holders that take the decisions and it is
plausible to assume that share holders do not necessarily
have the same view. Therefore, it is good to know what is
in the interest of those who have the power to push
constitutional change and to analyse where the decisions
taken by the share holders will take us.
I will talk about interest and power, but what looks
like a parsimonious approach in the realist tradition is
enlightened by a neo-institutionalist perspective.
Capabilities and institutional embeddedness, interests
and ideas are of importance:
- competing interests and power imbalance push
institutional developments into different
directions,
- role perceptions and beliefs about functional
necessities and appropriate solutions inspire and
restrain constitutional choice,
- rationally chosen strategies produce unintended
consequences because institutional interference
is meddling with systems that have a life of
their own.
Therefore, I will not only examine what is in the
interest and in the mind of influential actors, but also
look at the contextual factors that give institutional
developments their direction.
I want to know where we are heading in order to assess
political priorities that make sense and suggest
strategic options that are both realistic and worth
fighting for.
2 Driving Forces of
Constitutional [1]
Development
Three Inter-Governmental Conferences (IGCs) in the
last two decades have reminded everybody that member
states are the "masters of the Treaty". [2] They control any
formal decisions in matters of constitutional choice. It
is the executive, governments and the Commission that sit
at the negotiating table and forge compromises on
institutional reforms. Parliaments and citizens in
national referendums have a "take it or leave
it” option to decide upon. Institution building from
above, however, is supplemented by institution building
from below.
The way Community bodies act and interact is shaping
the living constitution of the EU. Though they are
constrained by established legal procedures and have to
move within a given constitutional framework Community
actors can make things change. Procedures are modified by
daily practice and frames are open to interpretation. The
European Commission and the European Parliament more
often than not form a coalition of self-interested
partners and push institutional change in their
direction. Sometimes they do it by inter-institutional
agreement, sometimes just by re-interpreting Treaty
provisions and making sense of political events. The
resignation of the Commission in early 1999 and the role
the European Parliament has played in the event has
within weeks become a "narrative” that reads
very different than the documents.
The shaping of the European constitution goes well
beyond that. A constitution does not come to life just by
what institutions do, but by the ways and means the
interchange between governing bodies and the society gets
organised. Social and political forces try to occupy the
European political space, they strive to get access and
voice. They take part in shaping patterns of interest
intermediation and joint decision making. Depending on
structural properties and prevalent philosophies,
particular modes of governance emerge.
Starting from this approach, we can distinguish
between three different kinds of input to constitutional
transformation:
- intentional constitutional choice agreed upon in
IGCs,
- political arrangements between actors with an
institutional self-interest,
- daily practice in organising political exchange
relations.
In order to get a realistic assessment of
constitutional developments within the EU, we have to
examine these individual inputs and, in addition, the
interplay between them. By doing so we better remember
what new institutionalism (more recently highlighted by
historical institutionalism; Bulmer 1997; Pierson
1996) tells us about the institutional embeddedness and
path dependency. When it comes to constitutional choice,
preferences are shaped by interests and ideas, coloured
by historical legacies and myths; they are negotiated in
a specific organisational context and open to wide
interpretations about intended and unintended
consequences. Last, not least, institutional reforms have
to be implanted in established institutional environments
that cling to their own notion of what is appropriate and
tried. The general assessment is that institutions are
stubborn to change.
We have to know 3 things:
- which inputs will gain momentum and why,
- how they will combine and what will be the most
characteristic features of the political system,
- whether or not the emerging mix of institutional
components will improve or degrade the democratic
quality of European governance.
3 In Search of Legitimate Governance: A Mirror of
Organisational Interests
3.1 The Executives View: Output Legitimacy and
Rescuing the Permissive Consensus
The lesson of the recent integration history has been
that those in power push a reluctant public towards new
frontiers. Neither deepening nor widening the European
Union was a public demand. Opinion polls show a wide gap
between the public at large and the top decision makers
be it in terms of general attitude towards the
attractiveness of European unification, be it with regard to decisions taken in
individual policy areas. Just the most vital decisions
like introducing a common currency find a strong backing
among the European elite (85% of the top decision makers
were in favour) [3],
whereas the citizens are divided on the issue [4] Now the executives'
argument is that it is in the national interest of all
member states to make the European Economic and Monetary
Union a success, that it will be necessary to "...
strengthen the EU's ability for political action and gear
its internal structures to the new tasks" (Fischer
1999a: 1). [5] The
reasoning is that this decision "... is not
primarily an economic, but rather a sovereign and thus
eminently political act. With the communitarization of
its money, Europe has also opted for an autonomous path
in the future and ... for an autonomous role in
tomorrow's world" (ibid.).
The main reason given for carrying on with integration
is that in the age of globalisation no European nation
state will be able to act on its own. European
supranationalism is praised to bring about a better
future: Only by common action our problems will be taken
care of in an efficient way and only by raising a strong
common voice our interest will be defended in
international affairs.
The executives' view is, in a nutshell, to safeguard
the capacity to act. Where does legitimacy come in?
Reading the documents of the latest Inter-Governmental
Conference carefully, the message is quite unequivocal:
legitimacy is a matter of performance. Facing
enlargement, institutional reforms are needed to preserve
the functioning of the Union and confronted by increasing
external challenges, the Union has to improve its
capacity to act also in the field of Foreign and Security
Policy. The focus of governments and the European
Commission is clearly on output legitimacy: efficiency
comes first.
But the "lesson of
Maastricht", i.e. governments facing an obstinate
public, reluctant to follow or even turning down what had
been agreed upon at the European level, has been learned,
too. The European Council's mandate was to bring
"the Union closer to its citizens". [6] This mandate,
however, has been translated in a way that it reads like
a PR exercise and not like an effort to improve
accountability and responsiveness. The main objective was
to "make the public understand" what Europe is
about and to drive the message home that "the EU
matters”.
This approach has not changed since
then. Rescuing the permissive consensus is - to quote the
newly elected President of the European Commission -
"... to make the European Union more relevant for
the European public". In his view, in order to win
back lost confidence the European Union has to
"...address the issues that really matter to
people's everyday lives" (Prodi 1999c: 3). [7] Because: "At
the end of the day, what interests them is not who solves
these problems, but the fact that they are being
tackled" (ibid.: 4).
Mr. Prodi is in good company. There is plenty of
evidence that heads of governments think in similar
terms. Scrutinising the summaries of European Council
meetings since Amsterdam supports the thesis that
"democracy" is not on the agenda. A people's
Europe is built on "openness"
and on engaging in activities in those areas that are
close to the people: "environment, justice and home
affairs, computer problems in the year 2000". [8] The member state
governments are dedicated to "serving the
people" (European Council Vienna 1998: 1) [9], they propose long
lists of items do be dealt with and when turning to
institutional questions, the message is always the same:
"...to make sure that also after enlargement the EU
will be able to work in an efficient way" (European
Council Cologne 1999: 8) [10]
No mentioning of legitimacy or of the need to pay tribute
to the member states' vocation to democracy.
When it comes to individual member
states, the record is more differentiated. The Finnish EU
Presidency, when announcing the coming Inter-Governmental
Conference, put the issue of legitimacy under the heading
of "A transparent and efficient Union". The
objective is meant to ensure "that an enlarged Union
can continue to act satisfactorily" which - from a
Finnish perspective - "calls for improved efficiency
of decision-making" (Finnish EU Presidency 1999: 6) [11], again no word on
democracy or democratic legitimacy.
The German Presidency started from
the opposite point of view: "If we want to turn the
European Union into a strong and assertive political
subject", strengthening democracy is a top priority:
"Europe needs more democracy" (Fischer 1999a:
5) [12] On the
conclusion of the German Presidency, the Foreign Minister
was even more outspoken: At the centre of the coming EU
reform debate "must be the democratization and
ultimately the full parliamentarization of the EU"
(Fischer 1999b: 4) [13].
"The EU's capacity to meet the challenges of the
future necessitates its enhanced legitimisation and
increased credibility with the citizens" (ibid.).
Such differences in outlook
highlight that institution building is framed by quite
divergent ideas about the "finalit� politique"
and the appropriate constitution for "good European
governance". In the German tradition, the federalist
solution ranks high and parliamentary democracy of the
German type is taken as blueprint to design a European
model constitution. [14]
Concepts how to strike the right balance between the
powers of the Union and of the member states vary along
country lines, less along party lines. [15] In Great Britain
there is no enthusiasm to share the federal solution.
From a British point of view, the statist analogy does
not hold and, therefore, there is little reason to get
engaged in any discussion about the parliamentarisation
of the Union.
These differences in the fundamental
approach to European constitutionalism make it even more
likely that governments will stick to their executive
view: The main issue is to act in the interest of the
citizen, not to provide for appropriate mechanisms for
supranational democracy, namely, "...institutional
arrangement(s) for responsiveness". [16] In this
perspective "(i)t is not self-evident - as seems to
have become politically correct to assume - that
influential politicians really want to abolish the
democratic deficit" (Gustavsson 1996: 123)
3.2 What Interested Partners Make Out of It
Just like member state governments, Community
institutions are no uniform actors. Nevertheless, when
compared to the latter, in particular the European
Parliament has quite a different approach to
constitutional questions. In our context, not the
constitutional drafts of the Parliament are of interest
but the way it deals with the present institutional
reality and where it sees the next steps for
institutional reforms.
Among the most recent reports of the
Committee on Institutional Affairs the one on Parliament
- Commission relations is the most telling (Committee on
Institutional Affairs, 8 December 1998). [17] It is closest to
a statist analogy projecting the present "Union of
States" to become a "Union of citizens" in
the near future. The report gives a re-interpretation of
the new provisions of the Treaty of Amsterdam that brings
the EU system close to a parliamentary majoritarian
democracy: With Amsterdam "...a new phase will begin
in European democratic life, with the attempt to give the
European Union itself a democratic dimension at least
equivalent to that provided by the various national
systems ..." (ibid.: 16).
The ideal type system which is chosen as normative
reference is quite obviously the Westminster model: What
is needed is "...the forging of a clear, strong and
public link ... between the choices made by Europe's
citizens in the European election and the nomination of
the Commission President" (ibid.: 5). The power of
the Parliament is not only meant to be a choice with
regard to the candidates nominated for the Commission, i.
e. a decision on persons, but a decision regarding
"... the structure of the Commission, its
institutional commitments and its programme for the
parliamentary term ..." (ibid.: 6). In order to
strengthen that link and to speed up the political
integration process, the Committee endorsed the proposal
that "... during the campaign for the European
elections, European political movements each proposed the
candidate they would like to see appointed President of
the European Commission" (ibid.). This way "...
the campaign would focus on those candidates, which in
turn would increase the visibility of the European
elections" (ibid.). To have this effect, member
state governments are asked to "... take account of
the outcome of the European elections and the preferences
indicated by the European political parties when
nominating the candidate for the presidency"
(ibid.).
The report is very clear on which roles the Commission
and the Parliament are supposed to play: The Commission
is viewed as the "main agent of a 'European
government'” (ibid.: 10), subject to the political
control of the European Parliament. The report deplores
that even with the institutional changes introduced by
the Treaty of Amsterdam, the relationship between EP and
Commission "is still not a straightforward
parliament-government one ..." (ibid.: 12).
Nevertheless, the Committee is determined to use its new
powers to exert control as effectively as
possible: The vote on the approval of the President
nominated by common accord by the governments should be
cast in view of the "political guidelines" [18] presented by the
candidate. It sees a further need for strengthening
"parliamentary supervision" (ibid.: 7)
including the possibility of the compulsory retirement of
individual Commissioners (ibid.). [19]
The proposition to "monitor the Commission's
action" (ibid.: 14) includes a Parliament's say in
the allocation of portfolios, and in the improvement of
the internal organisation of the Commission (ibid.: 14,
15). To additionally strengthen the links between both
Community institutions, it is proposed "that a
relevant number of the members of the Commission be
chosen from within the ranks of the newly elected
European parliamentarians ..." (ibid.: 17).
In the beginning of his candidacy,
Prodi was fully in line with the philosophy of this
report. He, being the designated President of the
Commission, suggested to stand as a candidate at the next
European election. His reasoning sounds like a text book
argument for a well functioning parliamentary system:
"Such a candidacy could be a step towards that fully
democratic Europe in which the members of the European
Government will have to face the test of a popular
vote" (Prodi 1999a: 6). [20]
The report did not meet the unanimous
support of the European Parliament. [21] The opinion of
the Committee on Legal Affairs and Citizens' Rights
(Committee on Institutional Affairs, 8 December 1998:
20-24) was much more cautious, and a minority opinion
presented by the vice-chairman of the Institutional
Committee, Georges Berthu, claimed that the
interpretation given by the majority "... ignores
the real nature of the Union and goes beyond the terms of
the Amsterdam Treaty" (ibid.: 19).
I do not want to take sides either with the majority
or the minority opinion. What I think is of utmost
interest, is the fact that the Institutional Committee
and later members of the European Parliament in their
examination of the candidates for the new Commission
exploited the new Amsterdam provisions
- to claim a qualitative transfer of power from the
member states to the Union and
- that this image of constitutional transformation
is linked to a particular constitutional form,
i.e. a majoritarian parliamentary democracy.
What is equally important is the fact
that the members of the Institutional Committee in
support of the report, were blamed for "federalists'
eagerness" [22],
but there was no comment on whether or not they were
supporting a constitutional model that does not fit.
Another interesting aspect is that the majority view
of Parliament may well be explained by institutional
interests: the EP can only win from a stronger move
towards a parliamentary system. Interests, however, do
not explain the willingness of governments to go along
with a further strengthening of the EP. It should be
expected that the member state governments are anxious to
loose their prerogatives. Their willingness to consent
may be explained with their reluctance to oppose the EP's
reading in public. This is difficult because it reflects
a widespread understanding of what democracy is about:
Giving powers to a parliament and strengthening the link
between parliament and government. Thinking in terms of
conventional wisdom supports projecting what is familiar,
and this will result in the export of the national
constitutional model (Burgbacher 1998).
3.3 Alternative Strategies
The Commission's position is
ambivalent. It has always been a strong conviction among
Commissioners that there is and should be a "strong
natural alliance" between the Commission and the
Parliament. [23]
Partly, it is for tactical reasons because getting the
support of the European Parliament will strengthen the
Commission's position vis � vis the Council. Partly, it
is an expression of identity. Both institutions are
convinced of their "truly European vocation". [24]
In the past it was mainly the Commission which managed
to instrumentalise the Parliament to gain political
weight. Now with a more assertive EP the Commission shies
away from entangling alliances in order not to get under
a too rigid parliamentary control. This may explain why
the President-designate of the Commission did not take up
the idea of the Committee on Institutional Affairs that
would subject the Commission to a stricter political
control and link individual Commissioners to party
groups. Romano Prodi made it quite clear: "The
Commission does not function along party lines. This
Commission is a college and Commissioners are no more
extensions of political groups than they are
representatives of national governments" (Prodi
1999c: 1-2).
Quite another reason for the Commission to hesitate to
form a strong link with the Parliament rests with its
institutional role. The Commission commands a broad range
of legislative and executive functions.
In order to make productive use of its right of
initiative, to be successful as guardian of the Treaty or
to manage a vast array of programmes, it has developed a
system of "network governance" [25]. To ensure good
performance it does not seek political support by a
parliament but draws on expert knowledge and gives voice
to those who will be affected. By bringing in external
actors - be they public or private - it has improved the
quality of its propositions and increased the
responsiveness of Community policy-making. The Commission
has established routines to draw upon the expertise of
external actors in order to ensure that its proposals are
approved of by those governed. For years it has supported
transnational interest formation and played an active
role in `networking', encouraging the formation of
transnational policy communities around policy issues
which it has an interest in promoting. Furthermore, in
various programmes the principle of `partnership' has
been introduced to get the framing and programming of
Community policies closer to the people. The main
criteria for such a move has been to improve both,
efficiency and public participation.
These strategies have been successful because they
were supported or at least tolerated by national
governments and private actors alike. Governments support
it because increasing the quality of European policy
making contributes to output legitimacy. And integrating
those who are affected bridges the deficits of political
representation. There is a widespread belief that the
European Union is at its heart a negotiating system.
Policy-making is mainly a matter coming to terms with
partly autonomous actors. The role of governmental
institutions is not to take authoritative decisions
backed by the political support of majority parties in
parliament. It is rather to forge a consensus between
competing interests. Different mechanisms have been tried
like delegating regulatory competence to independent
agencies, by establishing institutional frameworks that
put emphasise deliberation instead of bargaining, etc.
The appropriate form of representation in such a system
is functional representation.
"Network governance" is a mode of governing
that seems to be particularly, though not only
appropriate for a "Union of States". It does
not claim to have democratic quality but legitimacy spawn
by processes of deliberation, institutionalised norm
orientation, and functional representation.
4 Intentions, Ideas and Institutional Realities
To sum up: Looking at the share holder's strategies,
their interests and ideas move into quite different
directions and so does European institution building at
present. Institutional reforms written into the Treaties
take up a life of their own just because they meet
competing interests and because they are interpreted and
applied according to implicit, but well grounded
conceptions on what constitutes "good
government". When thinking in terms of
constitutional options statist analogies about
representative democracy prevail. Whereas experiments
with network governance draw on the neo-functionalist
tradition of European integration.
What we should be interested in is looking at it from
a normative point of view and ask: What are the dangers
and opportunities inherent in such a development?
Talking about a normative approach, I suggest that we
should not lower our normative standards to make them fit
the EU reality. All the share holders promise that they
want to strengthen the EU's capacity for political
action. In other words, we are subject to European rule,
i.e. to "the authoritative allocation of
values" as Easton has put it. Therefore, we not only
have the right to demand that political actors consider
it their duty to act in our interest and to try to bring
it home to us. What we also have to ask for are
institutionalised mechanisms for responsiveness and
accountability which function in a way that gives
citizens an equal right to raise their voice.
Looking at constitution building in Europe from this
normative perspective: Where are we heading?
4.1 Towards an Ever Closer Union
When governments are mainly interested in output
legitimacy, it is no surprise that this works in favour
of transferring even more competencies to the European
level. And strengthening the capacity to act by widening
the scope for majority vote has again a centralising
effect.
The same applies to the incremental parlamentarisation
of the Union. The European Parliament by nature is a
federal institution. Its legitimacy is based on the idea
of representing the European citizen irrespectively of
national allegiances. Party groups align across
territorial borders, aiming at representing
trans-national political cleavages. They work hard to
remove all obstacles - like different electoral systems,
different standards in status and resources - that might
keep them from moving into a unitary political space.
Network governance, too, is widening the unitary
political space. By bringing social actors into European
decision making and forging European wide advocacy
coalitions the European Commission has played an active
role in re-defining the boundaries of the European
polity. Interest intermediation along functional lines is
transforming the Community system from a "Union of
States" into a trans-national political space.
Apart from these structural
dynamics the trend towards centralisation is supported by
the role ascription of the actors involved. The European
Parliament and the European Commission as institutions
are both convinced that it is their task to work in
favour of deepening European integration. The keyword is
"to carry forward the European project" (Prodi
1999c: 7) [26]. The
Commission's self-image is that it represents "the
European interest as a whole" which supports its
aspiration for an increasing political involvement. It
considers its main task to be the definition of
priorities (Prodi 1999b: 2), to help "map out the
future" and "to guide the growth of the
Union" (Prodi 1999a: 5). [27]
This self ascription is based on a
shared definition of functional necessities, shared also
by the European governments. They are dedicated to
"carry on with integration" (Fischer 1999a: 4)
in order to meet the challenges of globalisation and to
fulfil the historic and moral responsibility of exporting
stability to neighbouring regions. [28]
This problem definition
combines with a widespread understanding among European
elite [29] that not
less, but more Europe is our future. With the coming into
force of the European Monetary Union at the beginning of
the year 1999 and the European engagement in the Kosovo
crisis, consolidating of what has been achieved is
tantamount to going ahead. [30]
We are told that we will be faced by spill-over at its
best: What has been agreed in the last three
Inter-Governmental Conferences will push Europeanisation
ahead whether the members of the Union want it or not. [31] Giving up
sovereignty in monetary affairs will demand a better
co-ordination or even harmonisation in economic and
fiscal policy including an integration of the divergent
social security systems and speeding up common efforts to
redress structural unemployment in Europe. Nominating
"Mr. Europe" makes the EU in foreign and
security relations more visible but it is seen just as a
symbolic move that calls for further action. Appointing a
spokesman does not bring the EU closer to "speaking
with one voice". Therefore, the suggestion comes as
no surprise that the EU should be provided with the
organisational capacity that matches state
administrations in order to transform the disparate
national aspirations into a common European will
(Frankenberger 1999:1).
Add to this that past institutional decisions call for
going ahead. Piecemeal reforms in Maastricht and
Amsterdam have left us half way and will trigger new,
path dependent initiatives to be dealt with in yet
another Inter-Governmental Conference starting in the
year 2000.
4.2 Democratic Illusions or Why Parliamentarisation
is Increasing the Democratic Deficit
The main arguments deploring the democratic deficit
of the European Union are well known. Equally well known,
at least in academic circles, is the argument that the EU
is not just institutionally retarded but lives in a
social environment that does not fulfil the prerequisites
for representative democracy. Just to write a
constitution does not make democracy work (Grimm 1997:
252; Kielmansegg 1996: 58). What would be needed is a
"demos", a European wide public space, and a
transnational political infrastructure (Abromeit 1998;
Lord 1998; Weiler 1995).
"Demos" is not to be confused with notions
of "primordial communities". The term demos in
our context refers to the idea of a European society that
is willing across all divergences of opinion and
interests to share the same basic liberal, political and
social rights with all other members of the community and
to live under common rule to which the European citizens
have consented voluntarily (Greven 1998). In view of the
heterogeneity of the European societies in a Union that
embraces 20 or even more member states, it is difficult
to imagine that a European demos will emerge. Even more
difficult to imagine is that there will be a public space
in which European citizens are able to communicate about
their preferences in tastes and values. Without a public
space there is no political discourse and without
mediating structures in terms of European-wide media and
a transnational party system there are no transmission
belts that make the voice of the European citizens heard.
The heterogeneity in language, culture and tradition may
be overcome by the cosmopolitan elite but not by the
ordinary citizen; the distance between them and their
elected representatives in a EP will make the latter
independent and not responsive.
As convincing as these arguments may be, they will not
keep the European Parliament from fighting hard to get
more powers and to treat the Commission, the Council and
the public as if it were not structurally handicapped.
Extending the rights of co-decision or linking the
nomination of Commissioners to candidates who were
running in European elections, do not solve but aggravate
the democratic deficit. They will cover the real politics
of the Union with a veil of democratic illusion that in
the long term will not hold ist alleged promises.
4.3 Elitist Enticements
If representative democracy is not the way out, why
not probe the legitimatory promises of "associative
democracy" (Cohen/Rogers 1992) and
"deliberative supranationalism" (Joerges/Neyer
1997)? The attractiveness of "partnership", a
principle apllied in particular in the field of regional
structural policies - rests on its alleged contribution
to both efficiency and legitimacy. If in the course of
internationalisation and increasing social
differentiation policy making becomes more and more
entrenched in complex systems of negotiations that can
hardly be controlled by any parliament, why not try to
implant into these negotiating systems some mechanisms
that will improve their legitimacy? Why not make use of
the "intelligence of democracy" (Lindblom 1965)
which means that governing efficiency will be
enhanced through participation? Despite a solid record of
positive reports on such public-private networks (Heinelt
1998) basic democratic criteria are violated: There is no
chance of equal access and no public accountability.
Openness is no remedy because resources which actors need
in order to get organised and get access are unequally
distributed and because the "logic of
influence" incorporated in the political system of
the EU privileges some interests over others (Kohler-Koch
1996). The Commission has made it an issue to support
weak groups to compensate for inequalities, but these
efforts did not redress the balance. "Co-operative
government" even in those cases where it was
intended to strengthen the weak has turned out to benefit
the strong (Kohler-Koch 1998:147-152).
Above all, it is the Commission that is the central
actor, it controls who has access and voice. It may use
this power in its own interest or in the interest of its
clients. In both cases it is the governmental agent that
decides whose interest will be served and how. I share
the view that network governance attributes a different
role to the state agents. They are no longer on top of a
hierarchy but get entrenched in bargaining and
negotiating with representatives of society. Executive
power has changed, but this does not imply that it had
lessened. Expanding network governance in the EU is - as
such -no taming of the Leviathan.
5 Legitimate Governance in a Union of States and Citizens
5.1 Channelling the Dynamics of Centralisation
The Monnet method of integration proved to be a
success. What was an ingenious mechanism to make former
adversaries co-operate and build a common market may not
be the right method for political federation. Building
the Economic Community, the Commission's zeal to carry
forward integration was confined to the rather clear cut
limits of the Treaties and was under the control of the
allocative mechanisms of the market. In the meantime the
Union has become an instrument of political intervention
and has steadily widened its scope of action into the
sphere of politics. Taking into account that there is no
way for democratic control to keep up with the
supranational build-up, the first priority should be to
channel the dynamics of centralisation.
Though it is just symbolic
politics one might consider to delete those paragraphs
that in the past have invited political spill-over: Art.
235/308 [32] and
the commitment in the preamble "to continue the
process of creating an ever closer Union" [33]. The wording in
the programme of the Finnish Presidency which refers to
"an appropriate division of labour between the Union
and its Member States" and postulates that "the
Union's work should contribute genuine added value"
(Finnish EU Presidency 1999: 2) is much more to my
liking.
Another point would be to
reconsider the procedure of constitutional amendments. I
certainly will not subscribe to the suggestion that the
"Community method" should be adopted for treaty
amendments. [34]
The member states have to insist that they are
"masters of the Treaty" and should rather be
put under closer scrutiny of their home parliaments [35] - both national and sub-national - and of their
constitutional courts while negotiating. A publicly
controlled procedure might indeed reduce the common
denominator of inter-governmental agreements. [36] This is justified
because of the high interdependence between
constitutional changes on the European and the national
level. "Multilevel constitutionalism" may not
be intended but since Maastricht it has become obvious
how unintended effects may gain importance. [37] Furthermore, the
experience of the Amsterdam Treaty rather supports the
argument that IGC's taking place in short intervals
invite for "issue hopping". High level events
put governments always under pressure to prove that they
have contributed to success. Nothing sells better than
success, and this invites to take up popular issues
irrespectively of potential unwanted long-term
consequences.
A constitutional debate, just like it has been
advocated by the German Foreign Minister, might be an
opportunity to "stop and think" where the
"ever closer Union" is going to lead us. The
finalit� politique needs a thorough reappraisal in terms
of
- the relation between the Union and the states,
- the appropriate constitutional architecture of
the polity ensemble composed of EU and member
states,
- options of flexibility,
- the size of the Union.
"Exporting stability to neighbouring
regions" is certainly not only a moral obligation
but also in the interest of the Union members. The
Southern enlargement had already been motivated by this
objective. The formula that we have to achieve deepening
and widening the Community simultaneously will not hold
when the Union is pushing its frontier even further to
the South and to the East. What kind of Union is needed
to offer a stability pact? Will an economic community
suffice or does it have to be a political union with a
high level of regulatory competence?
"Flexibility" was the new magic formula
introduced in the Amsterdam Treaty. Though a highly
controversial matter during the IGC negotiations, it has
not gained profile since (Deubner 1999). It is just very
obvious that the European Parliament and the Commission
are all in favour of keeping the EU a unitary system. The
more embracing the system becomes, the less neighbouring
states can stay apart. Centralisation exerts a
centrifugal tendency even on outsiders.
Reflecting on the size and the scope of the Union one
has to keep in mind that the EU will never be an
"optimal space" neither for a currency union, a
financial market or a security alliance. Military crisis
even in the Union's "near abroad" will always
involve other big powers and International Organisations.
Successful crisis management was accomplished by ad hoc
security alliances in which individual states and not
collective actors like the EU played an important role
(Schmidt 1999).
Last not least, an element of fiscal federalism should
be introduced into the EU. The principle should be that
those who want to have a public good produced should
provide the resources. At present, creeping
centralisation thrives on initiatives by the Commission
that are paid by the member states. With little seed
money the Commission triggers numerous programmes drawing
on the resources of others and meddling even in local
affairs. So far it has managed quite well to live as
boarder of its members.
5.2 Matching Competing Models of Governance
Instead of nourishing the illusion that the EU polity
might be developed into a similar kind of system as we
know it from the member states, it should be made quite
explicit that it is a consociational type of system that
follows a different logic. This does not imply that the
EU should be reduced to a pure "Union of
states". It is a supranational polity that already
embraces a policy space of its own. But the structural
settings are such that consociation and not majority rule
have been and should be chosen as guiding principles of
organising political relations. In a textbook version,
majority rule is supposed to be suited best to a
homogeneous political environment and a pragmatic
orientation of political elite. These characteristics
make it compatible with an adversarial
style of political discourse. Consociation is located in
a pluralist society marked by deep cleavages which can
only be bridged by a coalescent policy style and
all-embracing grand coalitions. [38]
Though many member state systems embrace elements of
consociation, the dominant rule is that of majority. This
applies even to the Federal Republic of Germany which has
been called a "semi-sovereign state" (Katzenstein
1997) because of the allocation of power to autonomous
political players. Nevertheless, it functions according
to the logic of "party government". Party
competition determines the relations of parliament and
government as it shapes the relations between the Bund
and the L�nder. There is a regular though not frequent
change of power when a dominant party triumphs over its
competitor.
In the EU it is hardly conceivable
that the structural situation will change in a way that
it would be wise to switch to a system of party
government. There are no European wide cleavages along
which genuine trans-national parties could rally. The
formation of "minimum winning coalition" [39] will hardly be
accepted for two reasons: Firstly, social heterogeneity
is hardly compatible with the (even temporary)
subordination of a minority to the wishes of a majority,
secondly, without a well functioning trans-national party
system the expectation that government is a temporal
affair does not materialise. Compliance rests on the
assumption that, in case of poor government performance,
the minority will attain the majority position. Citizens
in Europe have to realise that the logic of the system is
different. Pretending that it may be transformed by
institutional tinkering into a copy of our national
systems will produce frustration.
The European Parliament and the Commission will have
to find their role in a system rather shaped along the
lines of supra-national consociation than state-like
federation. They should be assigned an important role in
an elaborate system of checks-and-balances. This includes
the right of co-decision for the Parliament but not the
right of legislative initiative or the election of the
Commission. The Commission's role should be that of a
strong secretariat, rather than that of an autonomous
representation of the "European interest".
Within an enlarged Union it will have to fulfil two main
functions: (1) an efficient mediator between the
diverging interests of member states, (2) a supporter of
small and not yet familiarised new members. The role of a
mediator between social interests, forging trans-national
policy communities and being the main interlocutor of
organised interest should rather move to the European
Parliament. The Commission's right of initiative should
again be more restricted by legal guidelines. This is
asking for a constitutional reform which delineates the
role of the institutions more clearly and for treaty
agreements that pin down a medium term working programme.
5.3 Bringing the Citizens Back In
Proposals to control the European centralisation want
to ensure that governance does not get out of the
citizens' reach. A system of checks-and-balances aims at
curbing the exercise of power. Functional representation
and supra-national deliberation improve "good
government" and foster compliance on the basis that
those whose opinions are overruled appreciate that their
arguments have been heard and set aside not by "a
mere act of will, but for what are thought to be superior
reasons" (Mill 1972: 240).
All these proposals will work in favour of
"legitimate governance" but they will not
improve the democratic quality of European
governance. Reforms aiming at the democratisation of the
system have to give the people voice, so why not think
about introducing elements of direct democracy? Abromeit
(1998) has reasoned along these lines and her arguments
are convincing. She reminds us that any institutional
reform in favour of democracy will have to meet
particular requirements (Abromeit 1998: 96-97):
- compatibility with the member states' political
structures,
- flexibility to allow for an on-going process of
constitutionalisation in the EU,
- accountability to European citizens being
affected in their general or their particular
interest,
- transparency,
- reversibility of decisions taken on substance or
on persons in office,
- taking into account the high level of
heterogeneity.
The proposal meeting these
requirements is "to complement the existing
institutions and procedures of EU decision-making by
direct-democratic instruments, mainly in the shape of
vetoes against decisions reached in the existing
set-up" (Abromeit 1998: 134). [40]
She differentiates between two types of vetoes. The first
is a "regional veto" which shall be applicable
to any infringement on the sphere of autonomy of
sub-national units. The second one is a "sectoral
veto" that gives functional constituencies the right
to overrule what has been made up in the European policy
network maze. Both vetoes are meant to dismiss what has
been decided and not to get exemptions within a more
flexible Union. As a complementary strategy it is
suggested to introduce public petitions. "In order
to heighten the responsiveness of European policy making,
the instrument of public petition, demanding specific
acts or policies to be set on the European agenda, may be
added to the system of veto rights" (ibid.: 135).
Last not least, any reform that is equivalent to a
constitutional step ought to be approved in a mandatory
referendum and should require the consent of the majority
in all member states.
Many weaknesses of direct democracy like falling easy
prey to populism or lacking any deliberative element do
not apply to the proposed instruments. Introducing
additional veto players reduces, however, the efficiency
of decision making. Compared to the decision-making
pathologies in existing political systems, including the
EU, this may be no a good reason for a rejection. More
convincing is the argument put forward by Abromeit
(1998:160): "On balance, I would judge the gains in
democratic legitimacy to outweigh the losses in
decision-making efficiency, with the overall effect on
system effectiveness hovering somewhat uncertainly in the
middle: acceptance will probably grow, but European
harmonisation as well as regulating activities will loose
momentum. Yet if there is any truth in the belief ...
that governance has to rely the more on the consent of
citizens the more active it is, then the effect of
slowing down the pace of European politics cannot wholly
be judged to be a drawback."
Whenever we are told again that they, the European
share holders want our best, we should ask:
- for institutionalised mechanisms of
responsiveness and accountability,
- for solid proofs why at the European level a
solution of our problems will be more in line
with what we consider to be appropriate.
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Footnotes
[1]
When I talk about "constitution" I do not refer
to the term in a strict legal sense but in terms of
"political order".
[2] I
do not want to go into the argument that with the
insertion of Art. 6 and 7 of the Treaty of Amsterdam
member states cease to be the masters of the Treaty
because it is now them who are subject to EU norms even
in constitutional terms.
[3]
Eurobarometer 1996: Public Opinion in the European Union.
Top Decision Makers Survey. Summary Report, Brussels:
European Commission, 10 (For or against a single
currency, EU 15, Top Decision Makers); 51% very much for,
34% somewhat for, 7% somewhat against, 6% very much
against.
[4]
Ibid.: 10 (For or against a singly currency EU 15,
General Public); 24% very much for, 30% somewhat for, 18%
somewhat against, 19% very much against.
[5]
Fischer, Joschka (1999a), Speech by the President of the
Council of the European Union, Federal Minister for
Foreign Affairs, in the European Parliament in
Strasbourg, 12 January 1999.
[6]
European Council, Turin 29 March 1996, Conclusions of the
Presidency, in: Bulletin EU 3-1996.
[7]
Prodi, Romano (1999c), Speech given by the
President-designate of the European Commission to the
European Parliament, 21 July 1999.
[8]
European Council, Cardiff 15-16 June 1998, Conclusions of
the Presidency, in: Bulletin EU 6-1998, 3. These headings
are listed in chapter IV "Bringing the Union closer
to the people".
[9]
European Council, Vienna 11-12 December 1998, Conclusions
of the Presidency, in: Bulletin EU 12-1998.
[10]
European Council, Cologne 3-4 June 1999, Conclusions of
the Presidency, in: Bulletin EU 7-1999.
[11]
Finnish EU Presidency 1999, The summary of the programme
for the Finnish EU Presidency.
[12]
Fischer, Joschka (1999a), Speech in the European
Parliament in Strasbourg, 12 January 1999. His first
point also was to strengthen the EU's "ability to
act" (ibid.: 1, 2) and most of his speech is about
EU policy issues. However, he talked at length on
problems of legitimacy, democracy and identity. According
to him, the greatest shortfalls within the EU are the
lack of political integration and democracy (ibid.: 4).
[13]
Fischer, Joschka (1999b), Speech on the Conclusion of the
German Presidency of the European Union to the European
Parliament in Strasbourg, July 21 1999. According to his
interpretation, the Commission's resignation in the
spring of 1999 has revealed "...what we must aim for
in the future, namely the creation of a truly democratic
Union with checks and balances" (5).
[14]
Again and again the German constitution is presented as a
model for the EU; see Burgbacher, Ernst (FDP) 1998: Von
Europa nichts begriffen, Bundestagsdebatte zur
Regierungserkl�rung und zum EU-Gipfel in Wien, in: Das
Parlament, Nr. 53, 25. Dezember 1998.
[15]
How constitutional ideas vary over time (from the early
1950s up to the end of the 1990s) and across countries
(France, Germany, Great Britain) and party lines
(represented in parliament) has been the object of a
Mannheim research project; see Jachtenfuchs, Diez, Jung
1996 and Jachtenfuchs 1999.
[16]
Which in political science (f.e. Pitkin 1967: 233) is
regarded as a necessary prerequisite of legitimate
government.
[17]
Committee on Institutional Affairs of the European
Parliament, 8 December 1998, Report on the institutional
implications of the approval by the European Parliament
of the President of the Commission and the independence
of the members of the Commission, Rapporteur: Elmar Brok.
[18]
"The final vote of approval by the European
Parliament should express confidence both in the college
as a whole and in a clearly defined programme."
(Ibid.: 16).
[19]
A proposition not in line with the idea of pushing for a
stronger "presidentialisation" of the
Commission, i.e. giving more power to the President of
the Commission:
[20]
Prodi, Romano (1999a), Speech given to the European
Parliament, 13 April 1999.
[21]
The report was adopted as a resolution by the European
Parliament on 13 January 1999 with 427 of 546 votes (90
rejections; 11 abstentions), see Official Journal of the
European Communities, 14 April 1999, C 104/37.
[22]
The minority opinion talks about "the federalists'
eargerness to exploit the new Amsterdam provisions to
their own ends (which was to be expected)..."
(Ibid.).
[23]
This position was again supported by Romano Prodi in a
speech given to the European Parliament on 21 July 1999
(Prodi 1999c: 6).
[24]
Prodi in his speech of 21 July 1999 even claimed that
they are "the only two institutions with a truly
European vocation" (Prodi 1999c: 6).
[25]
The concept of "network governance" is more
extensively developed in Kohler-Koch 1999.
[26]
The speeches given by the President-designate of the
Commission to the European Parliament on April 13
(1999a), May 4 (1999b), and July 21 (1999c) give a good
illustration. "Who else but the Commission and the
Parliament - working together - can carry forward the
European project?" (Prodi 1999c: 6-7).
[27]
Romano Prodi on 21 July 1999: "...the answer to the
concerns of a disillusioned European public is not less
Europe, but more" (Prodi 1999c: 4).
[28]
Joschka Fischer on 12 January 1999: "So why do we
want to carry on with integration? I see two central
reasons for doing so: Firstly, because in the age of
globalization no Europen nation state, not even the
larger ones, will be able to act on their own. Europeans
can only meet the challenges of globalization when we are
united; and secondly, because exporting stability to
neighbouring regions is not just a historic and moral
responsibility for Europe but it lies in our best
interest." (Fischer 1999a: 4).
The Finnish Presidency, though more careful in its
wording, put its proposals under the heading of "A
globally active and influential Union" (Finnish EU
Presidency 1999: 4).
[29]
Based on a press survey covering clippings from English,
French and German newspapers from November 1998 to August
1999, compiled by Christine Hamann, Stiftung Wissenschaft
und Politik (SWP) in Ebenhausen.
[30]
Compare Frankenberger (1999: 1) "Denn einiges
spricht f�r die Vermutung, da� es, salopp gesagt, mit
der europ�ischen Einigung erst richtig losgeht."
Fighting a war has always been considered to consolidate
a still fragmented political entity and to support
centralising tendencies, compare also Joschka Fischer on
21 July 1999: "The crisis thus speeded up
history" (Fischer 1999b: 1).
[31]
Frankenberger (1999: 1), in the leader of the Frankfurter
Allgemeine Zeitung (FAZ), one of the leading German
newspapers, expresses a commonly held opinion, claiming
that this has to do with the logic of the coming reform
steps: "Sie treiben die Vergemeinschaftung voran, ob
die Glieder der Union dies im einzelnen wollen oder
nicht."
[32]
This has been suggested by the Bavarian Government, in:
Bayerische Staatsregierung 1996: Bayerische Ziele f�r
die Regierungskonferenz 1996, 8.
[33]
This suggestion was made by the European Constitutional
Group (1993): 2.
[34]
Suggested by the then President of the European
Parliament, Gil-Robles in his speech to the European
Council in Colognes on 3 June 1999: In order to avoid
what he calls "minimum amendment at the lowest
common denominator" the Commission should be
entrusted to draw up a preparatory document, consult the
Parliament and in the guise of a working party with the
national parliaments. The final decisions would be
adopted within the framework of the IGC and ratification
by the national parliaments (Gil-Robles 1999: 4).
The suggestions takes up a resolution adopted unopposed
(with one abstention) by the Committee on Institutional
Affairs of the European Parliament (see European
Parliament, News report of 22 April 1999, 'Community
Method' proposed for next IGC in 2001, p. 2)
[35]
At the occasion of the conference of the parliaments of
the European Community in late 1990, the final
declaration, indeed suggests a greater say of national
parliaments in the process: "... h�lt die Zeit f�r
gekommen, den gesamten Komplex der Beziehungen zwischen
den Mitgliedstaaten in eine Europ�ische Union
umzuwandeln, und zwar auf der Grundlage eines Vorschlags
f�r eine Verfassung, der mit Hilfe von Verfahren
ausgearbeitet wird, an denen das Europ�ische Parlament
und die nationalen Parlamente beteiligt sind ..."
(Conference of the Parliaments of the European Community,
27-30 November 1990, Conclusions, in: Bulletin EC 11-90,
German version, p. 144)
[36]
The main argument against or in favour of including the
national parliaments is always whether or not this will
push forward the constitutionalisation of Europe and not
whether it will contribute to a more democratic
decision-making process and a constitutional design that
is more responsive to the people. See among others a
recent contribution by a group of eminent lawyers and
political scientists, Centre Robert Schumann 1999: 7.
[37]
In particular the German L�nder and the Belgian and
Spanish regions insisted at that time on Treaty - and
even national constitutional amendments to safeguard
their rights.
[38]
For a more extensive treatment see Kohler-Koch 1999.
[39]
'Minimum winning coalitions' are based on the assumption
that any party which wants to govern will only take as
many coalition partners on board as are absolutely
necessary to assure a majority decision because, with
each new partner, new demands have to be taken into
consideration.
[40]
For a more detailed account see Abromeit 1998: 95-169.
[Date of publication in the ARENA
Working Paper series: 15.10.1999]
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