Competences–reloaded?
The vertical division of powers in the EU
and the new European constitution
Franz C. Mayer*
Introduction
Following the constitutional debates before, during, and after the 2002/2003
convention, one could easily have had a sense of déjà vu. More or less similar
European debates on lists of competences, subsidiarity, a competence court,
and so forth had taken place before. The vertical division of powers is a recurrent issue in European constitutional law.1
What is wrong with déjà vus? A 1999 movie, The Matrix,2 depicts a future
where machines have gained control over Earth and human beings are kept in a
sort of permanent dream world. In this computer-generated virtual reality, when
déjà vu occurs, it is usually referred to as a “glitch in the Matrix,”3 some kind of
system malfunction. However, to the extent that it is generated by the machines,
it may also be regarded merely as a feature of the system. Does the fact that the
competence issue keeps recurring indicate that there is a systemic malfunction of
the EU “matrix”? Or is the recurring debate about European powers and competences an inbuilt feature of European integration?
It seems to me that insofar as the debate has been mainly on how to solve
the competence problem, it has been to some extent a false debate. I would
argue that the competence issue cannot be resolved, in the usual sense, since
it is, in fact, a debate on the reach and the purpose of European integration.4 I
will develop this approach in two stages.
* Assistant professor (Wissenschaftlicher Assistent), Humboldt University, Berlin; law faculty,
Walter Hallstein-Institute for European Constitutional Law; email: [email protected]
doi:10.1093/icon/moi030
1
For an overview of the competence literature, see Franz C. Mayer, Competences-Reloaded? The
Vertical Division of Powers in the EU after the New European Constitution, in Weiler and Eisgruber,
eds., Altneuland: The EU Constitution in a Contextual Perspective, Jean Monnet Working
Paper 5/04, available at http://www.jeanmonnetprogram.org/papers/04/040501-16.html.
2
See GLENN YEFFETH, TAKING
(Benbella 2003).
THE
RED PILL. SCIENCE, PHILOSOPHY
AND
RELIGION
IN
THE MATRIX
3
LARRY WACHOWSKI & ANDY WACHOWSKI, THE MATRIX. THE SHOOTING SCRIPT (Newmarket 2001) at 74.
4
This may be distinguished from competence debates in federal states.
493
494
Institutions, powers, decision making and accountability
After a brief look at the competence provisions of the new constitution,5
part one will focus on a first level of analysis and part two on an assessment
of these provisions in light of the preconvention debate on European competences. A second level of analysis, in part three, will look beyond a narrow
understanding of competence as mere legislative competence. There is some
evidence that, frequently, what arises as a problem of competences actually
involves issues outside the realm of legislation. This raises the question of how
the convention dealt with such issues. My conclusion suggests that the competence issue is likely to arise again.
1. The 2002/2003 convention, the IGC and the
constitution
The background that led up to the constitution cannot be explored in detail
here.6 Suffice to say, the 2002/2003 convention devoted considerable time
and energy to the competence issue. The way the debate in the convention
unfolded may be summarized as follows: after initial attempts to launch a
major revision of the competence order, with some convention members
calling for federal constitution-style lists of competences, most convention
members came to realize that who was to assign competences was at least as
important as the wording of competence provisions.7 After the debate had
shifted to the question of “who is to determine who is competent,” the suggestions
for taking judicial review away from the ECJ by introducing a special competence court were never taken very seriously. As the competence and subsidiarity issues had come to be regarded as primarily political in nature, the debate
ultimately turned to evaluating different models for the political control
of competences, be they institutional or process-based. Finally, proposals to
5
For the outcome of the convention’s work, see the Draft Treaty establishing a Constitution for
Europe, 2003 O.J. (C 169) 1 (Aug. 18, 2003). The intergovernmental conference of 2003/2004
(IGC) established a revised version of the convention’s text, Conference of the Representatives of the
Governments of the Member States, Treaty establishing a Constitution for Europe, CIG 87/2/04
(Oct. 29, 2004), available at http://ue.eu.int/igcpdf/en/04/cg00/cg00087-re02.en04.pdf. All
articles quoted herein refer to the final article numbers published in the Official Journal, Treaty
establishing a Constitution for Europe, 2004 O.J. (C 310) 1 [hereinafter CT art. X-xx].
6
For details of the previous system, see the 2002 background study prepared by the secretariat of
the convention for the convention’s deliberations on the issue, Description of the current system
for the delimitation of competence between the European Union and the Member States, CONV
17/02, available at http://register.consilium.eu.int/pdf/en/02/cv00/00017en2.pdf; see also
Delimitation of competence between the European Union and the Member States–Existing system,
problems and avenues to be explored, CONV 47/02, available at http://register.consilium.eu.int/
pdf/en/02/cv00/00047en2.pdf.
7
See, e.g., The exercise of European competences is the real problem, not the allocation of competences in
the treaties, (Working Group on European Integration, Friedrich Ebert Stiftung, Working Paper
No. 10, September 2001), at http://fesportal.fes.de/pls/portal30/docs/FOLDER/POLITIKANALYSE/
Ap10eng.pdf.
F. C. Mayer
495
introduce new political institutions, such as a parliamentary subsidiarity
committee,8 were also discarded. The convention suggested introducing some
kind of early-warning mechanism instead.
A closer look at the competence provisions in the proposed Treaty establishing a Constitution for Europe reveals a twofold approach. On the one hand,
the competence provisions of the founding treaties are more or less maintained in part III of the constitution, and article I-12(6) states: “The scope of
and arrangements for exercising the Union’s competences shall be determined
by the provisions specific to each area in Part III.” Note that all parts of the
constitution have the same legal status.
On the other hand, part I of the constitution introduces a specific section on
the Union’s competences (arts. I-11 to I-18), complemented by a new protocol on
subsidiarity. This section is more general in nature than the competence provisions in part III. It lists and defines the fundamental principles governing the
limits and exercise of competences, including the principles of conferral,
subsidiarity, and proportionality. National parliaments are called on to ensure
compliance with the subsidiarity principle in accordance with the procedure laid
down in the subsidiarity protocol (art. I-11(3)). Article I-6 confirms the principle
of the primacy9 of Union law adopted “in exercising competences conferred on
it.” Articles I-12 through I-17 list and describes different categories of Union
competences, stating for each category the consequences of the Union’s exercise
of its competences for the competences of the member states. The categories are:
Exclusive competence (art. I-13), Shared competence (art. I-14), and Areas of
supporting, coordinating or complementary action (art. I-17).10 Coordination of
the member states’ economic and employment policies (art. I-15) and common
foreign and security policy (art. I-16) are given separate articles, in order to reflect
the specific nature of the Union’s competences in those areas.
With article I-18, a flexibility clause, corresponding to the former article
308 EC,11 is maintained in order to enable the Union to react in unforeseen
circumstances. But that flexibility is restricted to the areas already specified
in part III of the constitution, which deals with the policies in detail.12
The provision requires unanimity in the Council and that the member states’
national parliaments be informed explicitly whenever the Commission
proposes to use the flexibility clause.
The subsidiarity protocol mentioned in article I-11, replacing the current
subsidiarity protocol, introduces an early-warning system. Not only does it give
8
See Ingolf Pernice, Kompetenzabgrenzung im Europäischen Verfassungsverbund [Delimitation of
competences in European multilevel constitutionalism], 55/18 JURISTENZEITUNG 866, 876 (2000).
9
For the difference between “supremacy” and “primacy,” see Mayer, supra note 1.
10
For more detail on the categories, see Mayer, supra note 1.
11
TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Dec. 24, 2002, O.J. (C 325) 33 [hereinafter art. xx EC].
12
Most critics interpret CT art. I-18 to be broader than art. 308 EC.
496
Institutions, powers, decision making and accountability
national parliaments a role in defending subsidiarity but the protocol also
states that the Committee of the Regions may bring actions before the European
Court of Justice (ECJ) on grounds of infringement of the principle of subsidiarity by a legislative act. According to the protocol, the Commission is to report
annually to the European Council, the European Parliament, the Council of
Ministers, and the national parliaments on the application of article I-11.
2. A first level of analysis: Assessing the constitution in
light of the preconvention critique
What did the convention and the IGC actually achieve? A simple answer would
be that the draft constitution submitted by the convention reflects, more or
less, the acquis communautaire, as the detailed competence provisions of the EU
and EC treaties are contained in part III of the draft constitution, which has
the same legal value as part I. Certain measures intended to improve not only
the competence provisions but, more generally, the European legal order then
seemed almost to suggest themselves. These include such measures as streamlining and pruning the language of some of the current competence provisions (the incomprehensible wording of article 133 EC in the Treaty of Nice
version13); doing away with the distinction between the EU and EC treaties;
and reducing the number of legal instruments, taking into account principles
developed by the ECJ, such as primacy, and making more explicit the external
competences and competence categories intrinsic to the treaties.
All this certainly makes European law easier to read. But this could seem a
rather meager result after sixteen months of work by the convention plus nine
months for the IGC. Did the convention effectively address those elements of
the preconvention critique specifically dealing with competence issues? To
answer this, I will look at core issues of the competence debate, including
enhanced transparency, higher precision, and better control and policy
coordination within the Council and the institutions.
2.1. Transparency?
Although articles I-11 to I-18 do give Union citizens some idea of what the EU
may and may not do, the competences regime under the constitution probably
is still not transparent or easily accessible to them. It may be argued that the
subject areas listed are simply too vast ( just think of “energy,” for example)
and that such Eurospeak as “economic, social and territorial cohesion” or
“trans-European networks” is difficult to decipher. References such as “social
policy, for aspects defined in Part III” (art. I-14(2)(b)) oblige the reader to turn
to part III to find out what aspects of social policy are covered. Is it convincing,
for example, to classify “internal market” (art. I-14(2)(a)) under shared
13
TREATY OF NICE AMENDING THE TREATY ON EUROPEAN UNION, THE TREATIES ESTABLISHING THE EUROPEAN
COMMUNITIES AND CERTAIN RELATED ACTS, 2001 O.J. (C 80) 1 [hereinafter TREATY OF NICE].
F. C. Mayer
497
competence, while placing “industry” under the heading of supporting,
coordinating, or complementary action (art. I-17(b))?
Concerning the structure of the competence section in part I, it is somewhat confusing to find the two articles on coordination of economic and
employment policies and common foreign and security policy (arts. I-15, I-16)
between the articles dealing with the more general concepts of exclusive and
shared competence (arts. I-13, I-14) and the article on supporting coordinating and complementary action (art. I-17).
More generally, one can say that the structure of the constitution as a whole
is not particularly transparent.14 Part II, the Charter of Fundamental Rights,
was drafted in 2000, at a time when a complete overhaul of the treaties was
not yet on the agenda. Part I was written at a time when it was not yet clear
whether there was political support for including the charter in the constitution. This explains why articles I-51 and II-68 both deal with the protection of
personal data, the former including a legislative competence in that field,
which does not fit into articles I-11 through I-17 or part III, and the latter
without any provision on legislation. It turns out that not all competences in
the constitution are covered by arts. I-13, I-14, and I-17. Article I-47(4) on
citizens’ initiatives, or article III-122 on principles and conditions for the
operation of services of general economic interest, or article III-123 on rules
prohibiting discrimination on grounds of nationality are further examples.
Article III-125 is a particularly striking example. According to that provision,
if the constitution has not provided the necessary powers elsewhere, the Union
can take action by means of European laws or framework laws to facilitate the
exercise by Union citizens of the right, referred to in article I-10(2)(a), to freely
move and choose where to reside. Paragraph 2 states that this can include
measures—laid down by a European law or framework law of the Council of
Ministers—concerning passports, identity cards, residence permits, or any
other such document, as well as measures concerning social security or social
protection. The latter is clearly a legislative competence beyond article III-136
(ex art. 41 EC) and covers activities that article 18(3) EC excluded from
European competence.
The situation is even less transparent when it comes to protocols. The Union
citizen who truly wants to know about subsidiarity, or about the role that
national parliaments and the Committee of the Regions play in monitoring
European competences, will have to turn to the more than on hundred protocols
annexed to the constitution to find the two that are relevant.
Does this mean that the convention has delivered a bad text? Certainly
not. Its structure simply reflects the complexity of the European competence
order, developed over more than fifty years and embodying many political
14
For a more detailed assessment of the structure, see Franz C. Mayer, Verfassungsstruktur
und Verfassungskohärenz—Merkmale europäischen Verfassungsrechts? [Constitutional structure and
coherence–Characteristics of European constitutional law?], 4/03 INTEGRATION 398 (2003).
498
Institutions, powers, decision making and accountability
compromises. A detailed list of competences is not what articles I-13, I-14 and
I-17 are about. And there are aspects of the constitution that definitely go
beyond a mere reshuffling of the old competence provisions. Probably the most
important such aspect is that the third pillar issues of justice and home affairs
are no longer under a separate regime.
Transparency is also at stake when it comes to multilevel lawmaking. This
time, an abolition of multilevel lawmaking (until now associated mostly with
the use of directives, the constitution will introduce framework laws) was
not envisaged. But this could become part of the agenda if the modifications
introduced by the constitution do not yield the results hoped for by those who
are concerned about ever-multiplying European activities. Ultimately, the
instruments of multilevel lawmaking, such as the directives or framework
laws, may be blamed for the lack of transparency. However, the adoption of an
anticommandeering rule, as it is known in U.S. constitutional law, is not
likely.15 “Commandeering” refers to the issuance of binding commands by the
paramount entity in a nonunitary system to force component entities to take
regulatory action with respect to private parties. United States constitutional
jurisprudence prohibits commandeering, whereas the EU permits it. Prohibiting it in the EU would presuppose a total decoupling of the European level
from the member state level and would entail the establishment of a functional
EU administration in every member state. Again, it is for competence reasons
that this is not a likely scenario.
2.2. A precise and balanced division of competences?
The Laeken mandate on transparency was not only about making the competence order accessible but also about clarifying the distinction between that
which is a matter of European competence and that which is not. In the words
of the Nice Declaration 23, the question was “how to establish and monitor a
more precise delimitation of competences between the European Union and
the member states, reflecting the principle of subsidiarity.”16 Note that this
meant invoking subsidiarity as a principle for attributing competences, not
exercising them (art. 5 EC), implying that there is a competence imbalance
between the EU and member states.
Here, the work of the convention has been subject to criticism,17 in particular
on the political level. First, it has been observed that no competences were
15
See Daniel Halberstam, Comparative Federalism and the Issue of Commandeering, in THE FEDERAL
VISION (Kalypso Nicolaidis & Robert Howse eds., Oxford Univ. Press 2001) at 213.
16
Emphasis added. The word “competences” was later changed to “powers” for the Official Journal
version, see TREATY OF NICE, declaration 23.
17
Position paper by Reinhold Bocklet, Bavarian Minister of State, Bericht über die Ergebnisse des
EU-Konvents [Report on the results of the European convention] (Sept. 11, 2003) (on file with author);
see also Meinhard Schröder, Vertikale Kompetenzverteilung und Subsidiarität im Konventsentwurf für
eine europäische Verfassung [Vertical distribution of competences and subsidiarty in the convention draft
for a European constitution], 59/1 JURISTENZEITUNG 8 (2004).
F. C. Mayer
499
returned to the member states. Instead, new competences have been
introduced—regarding principles and conditions for the operation of services of
general economic interest (art. III-122), for example. There is also the fact that
article 95 EC and article 308 EC, whose provisions are considered to be extremely
imprecise, were retained in articles III-172 and I-18, respectively. The passerelle in
article IV-444 that allows for the European Council to decide unanimously to
switch from unanimity to qualified majority voting in the Council is only a procedural device. Still, some critics fear that this could lead to the extension of
European competences beyond the current treaty, in the field of Union citizenship
(art. III-126), for example. The exclusive competence accorded the Union to establish the competition rules necessary for the functioning of the internal market
under article I-13(1)(b) is seen as unclear because it could also concern other
internal market aspects. The new category of supporting, coordinating, or complementary action established under article I-17 is similarly unclear because it
extends to such areas as education, where coordinating measures emanating
from the EU would meet resistance in some member states. The extension of crosscutting “provisions of general application” (arts. III-115 to III-122), dealing with
such issues as the environment, discrimination, or consumer protection, is also
considered a problem, as is the extension of coordinating powers in articles I-1,
I-12(3), I-15. Finally, critics point to the fact that the Union’s objectives have
been extended (art. I-3) and now include areas such as “full employment” or
“solidarity between generations,” areas where the Union does not have any
competences.18
Still, the critics must concede that the wording of the relevant provisions is
now less centered on objectives. Article I-3(5) clearly states: “These objectives
shall be pursued by appropriate means, depending on the extent to which the
relevant competences are attributed to the Union in the Constitution.” This
must be read together with article I-12(6), which states, “[t]he scope of and
arrangements for exercising the Union’s competences shall be determined by
the provisions specific to each area in Part III.”
Owing to time constraints, the convention did not debate in detail part III,
which basically comprises the provisions of the former EC- and EU-H treaties set
forth in great detail. This may explain, in part, the rather unclear competence
provisions in part III of the convention draft, such as the provision dealing
with the Union’s competence to conclude international agreements in the field of
common commercial policy, article III-315 (which was article III-217 prior to
renumbering). Article III-217(5) of the convention draft was less clear than
article 133(6) EC with respect to the requirement of mixed agreements in cases
where the Union lacks internal competence. This could have been interpreted as
giving up the coherence between internal and external competence of the
18
See, e.g., Leolin Price, Giscard d’Estaing’s “Constitution”; Muddle and Danger Presented in
Absurd Prolixity, Bruges Group EU Constitution Briefing Paper n. 1, available at http://www.
brugesgroup.com/mediacentre/index.live?article183.
500
Institutions, powers, decision making and accountability
Union.19 Here, the IGC added a provision (now article. III-315(4)(b)) stating that,
in the field of trade in social, education, and health services, the Council will still
act unanimously.20
All things considered, one may doubt whether the competence definitions
in the constitution are much more precise than before. But, once again, this is
not actually due to a failure of the convention. A comparative look at federal
systems21 shows that there are limits to what can be achieved by the wording
of competence articles. And, considering the overall balance between EU and
member state competences, there was simply no need for EU competences to be
given back to the member states.
2.3. A better system of controlling the exercise of competences?
Early on in the convention’s work, there emerged a general awareness that the
true problem might be monitoring the delimitation of competences. Perhaps
what matters more is not so much the wording of competence provisions and
the precision of subsidiarity clauses as the question of who determines
whether there is a problem with competences.22
The convention upheld the primary monitoring mechanism for which the
treaties provided—namely, the judicial control exercised by the ECJ—responding
clearly to those in the member states who continued to call for a competence
court23 or even insisted on the national constitutional courts having the ultimate
say on European competences.24 The ECJ shall ensure respect for the law in
the interpretation and application of the constitution (art. I-29(1)). It reviews
Union acts, inter alia, under article III-365 (ex art. 230 EC), as incidental questions under article III-378 (ex art. 241 EC), or in the context of a reference under
article III-369 (ex art. 234 EC). It has been argued again and again that the ECJ’s
19
See Marise Cremona, The Draft Constitutional Treaty: External relations and external action,
40 COMMON MKT. L. REV. 1347 (2003).
20
See art. III-217(4)(b) CIG 86/04 (June 25, 2004), available at http://ue.eu.int/icgpdf/en/04/
cg00/cg00086.en04.pdf.
21
See additionally Franz C. Mayer, Die drei Dimensionen der europäischen Kompetenzdebatte [The three
dimensions of the European competence debate], 61 ZAÖRV 577 (2001).
22
See JOSEPH WEILER, THE CONSTITUTION OF EUROPE 353 (Cambridge Univ. Press 1999).
23
See the judge-rapporteur for European law-related cases in the German Constitutional Court,
Siegfried Bross, Grundrechte und Grundwerte in Europa [Fundamental rights and basic values in
Europe], 58/9 JURISTENZEITUNG 429, 431 (2003). See also Ulrich Everling, Quis custodiet custodes
ipsos?, 13/12 EUZW 357 (2002). For a similar debate in the U.S. on a Court of the Union composed
of the chief justices of the state supreme courts see Council of State Governments, Amending the
Constitution to Strengthen the States in the Federal System, 36 STATE GOV’T 10 (1963) (pro) and
Kurland, The Court of the Union or Julius Caesar Revised, 39 NOTRE DAME LAWYER 636 (1963–1964)
(contra).
24
See a recent interview with Chief Justice of the German Constitutional Court Hans-Jürgen
Papier, DER SPIEGEL, Oct. 6, 2003.
F. C. Mayer
501
monitoring of competences is insufficient.25 This position is not supported by the
more recent case law of the Court. Judge Ninon Colneric has presented a detailed
account of the Court’s jurisprudence in the field of competences, which demonstrates that, today at least, the Court does take the issue seriously.26
The convention introduced slight improvements with regard to the standing
of individuals under article III-365(4) (ex art. 230(4) EC).27 The possibility of
new judicial or political institutions, such as a competence court or a parliamentary subsidiarity committee, were discarded.28 Instead, the constitution
relies on procedures. It suggests an early-warning system by which national
parliaments will be informed in advance of forthcoming EU acts. Before the
European legislative procedure per se is initiated, every national parliament has
six weeks in which to give a reasoned opinion as to whether the proposed legislation is in accordance with the principle of subsidiarity. A challenge by a third
of the national parliaments (in matters of home affairs or justice, only a quarter)
suffices to make it mandatory for the Commission to review its proposal and
to provide reasons if it decides to maintain the proposal. But even unanimity
among the national parliaments cannot block legislation.
According to the protocol, the ECJ has jurisdiction to hear actions by member states on behalf of their national parliaments, claiming infringement of
the principle of subsidiarity by a legislative act, brought in accordance with
the rules laid down in article III-365 (ex art. 230 EC). The Committee of the
Regions also has standing in such matters. At first glance, the idea of including national parliaments in the European legislative process appears reasonable. It is inspired by the recognition that there is a need for structural
safeguards to protect member state competences, and that ever-increasing
European competences are affecting national legislatures most, as governments
25
Peter M. Huber, Bundesverfassungsgericht und Europäischer Gerichtshof als Hüter der
Gemeinschaftsrechtlichen Kompetenzordnung [The Federal Constitutional Court and the European Court
of Justice as guardians of the Community’s legal competence regime], 116 AÖR 211, 213 (1991) (with
further references). See also Sir Patrick Neil before the House of Lords Select Committee on
the European Communities, Sub-Committee on the 1996 Intergovernmental Conference, HL
Paper 88, 218 and 253.
26
Ninon Colneric, Der Gerichtshof der Europäischen Gemeinschaften als Kompetenzgericht [The
European Court of Justice as a competence court], 13/23 EUZW 709 (2002). See also Case C-376/98,
Germany v. Commission (Tobacco directive), [2000] E.C.R. I-8419, which may be seen as a functional equivalent to the U.S. Supreme Court’s case law in Gregory v. Ashcroft, 501 U.S. 452 (1991);
New York v. United States, 505 U.S. 144 (1992); United States v. Lopez, 115 S.Ct. 1624 (1995);
Seminole Tribe v. Florida, 517 U.S. 44 (1996); Printz v. United States, 117 S.Ct. 2365, 138 L.Ed.2d
914 (1997); and Alden v. Maine, 119 S.Ct. 2240 (1999).
27
For the details of these improvements, see Franz C. Mayer, Individualrechtsschutz im Europäischen
Verfassungsrecht [Protection of individual rights in European constitutional law], 119/10 DVBL
606 (2004).
28
See in that context the proposal for a Constitutional Council in Joseph Weiler, The European
Union Belongs to its Citizens: Three Immodest Proposals, 22 ELREV 150, 155 (1997).
502
Institutions, powers, decision making and accountability
can compensate losses at the member state level via the Council. The wording of
the relevant protocols, however, suggests that national parliaments are limited
to controlling subsidiarity—not European competence and not the principle of
proportionality—and that there are questions as to the practicability of the
early-warning system.
The current practice is the first element that raises doubts. There already
exists an informal early-warning system. In Germany, for example, the
Bundestag and Bundesrat are informed of forthcoming legislation and
Commission activities well in advance through reports by the federal government and the Länder. In particular, the Bundesrat (the second chamber, representing the Länder) invokes subsidiarity frequently, and without any effect.
Further, the six-week comment period seems short, especially when one is
talking about achieving a quorum of a third, or even a quarter, of the national
parliaments in order to put pressure on the Commission. Recall that, no matter
what the size of the quorum, the national parliaments cannot block European
legislation. It remains to be seen whether sufficient infrastructure exists or will
be established to process the information provided by the Commission in such
a short time. It also remains to be seen what role the ECJ will attribute to the
national parliaments’ reasoned opinions, as well as the Commission’s reaction
in subsidiarity legislation.
Member state action before the ECJ on behalf of national parliaments will
have to pass a practicability test, and this raises numerous questions of domestic constitutional law.
Finally, there are political points to consider. First, in most member states,
there is a political correspondence between the government and the parliamentary majority. That being so, it is hard to imagine that a national parliament’s majority would take a different position from that of the government.
The position of a parliament is likely to be informed not so much by subsidiarity
concerns as by general political ones, inspired by the government. Second,
in systems where one chamber represents the regional level within a state, as
in Germany, where second-chamber majorities often differ from those of the
first chamber, objections to European initiatives will not only be informed by
subsidiarity concerns but also by domestic policy disputes.
It will be up to the ECJ to make sure that the early-warning system is not
abused and does not become a major roadblock for European legislation. It will
also be up to the national parliaments whether the report on the application of
article I-11 of the constitution provided for by the subsidiarity protocol will simply be pigeonholed or will provide an occasion for meaningful debate on the state
of the Union, which would also help to resolve genuine problems of competence.
2.4. The competence problem as a problem of policy coordination?
The responsibility for upholding the European competence order lies with each
institution. Thus, the Council also has a responsibility for respecting the limits
of European competences, an obligation that, in the past, the Council has not
F. C. Mayer
503
always lived up to.29 This may have to do with an increasing lack of coordination of the Council’s activities.30 As a government official might put it: if you
set up a council of ministers for good housekeeping, it would not take long
before you had a directive on good housekeeping, an action plan on good
housekeeping, and so forth. In the absence of comprehensive coordination of
the work of the different specialized councils, a trend toward ever-increasing
activity on the part of each of these councils comes as no surprise. This also
has to do with the fact that, as often as not, members of a specialized council,
such as the ministers responsible for the environment, find it easy to agree on
policy measures that their respective cabinet colleagues at home would reject.
This not only indicates that the Commission’s monopoly on the initiation of
legislation may not have much of a competence-limiting effect. It also points
to a tendency of institutions to find and to increase their areas of activity.
Reform of the Council has been on the agenda for some time, and the number of Council structures has recently been reduced. But the Council’s work
seems still to lack coherence. The convention suggested the introduction
of a legislative council that was supposed to render the Council’s work more
consistent. That proposal, however, was the first item to be rejected by most
governments in the IGC, with the exception of Portugal and Germany.
Thus, although the deficiencies of the Council of Ministers and the
European Council are probably at the heart of EU encroachments on member
states’ competences,31 the Council is not included in the constitution’s efforts
to improve the management of activities at the European level.
3. A second level of analysis: Beyond legislative
competences—when European integration gets in
the way
Thus far, I have been looking primarily at legislative competences. This seems to
make perfect sense; the European level possesses almost exclusively regulatory
powers. On the other hand, nearly the entire area of norm implementation and
norm application through the executive and the judiciary remains at the member state level. There is no EU administration operating in the member states.
This is particularly apparent when a measure must be implemented by force; in
29
Armin von Bogdandy, Jürgen Bast & Dietrich Westphal, Die vertikale Kompetenzordnung im
Entwurf des Verfassungsvertrags [The vertical order of competences in the draft constitutional treaty],
26 INTEGRATION 414, 417 (2003).
30
For details of the coordination issue, see Franz C. Mayer, Nationale Regierungsstrukturen und
europäische Integration [National government structures and European integration], 29/5–8 EUGRZ
111 (2002).
31
On the interpretation of the competence issue as a problem of horizontal division of powers, see
Armin von Bogdandy & Jürgen Bast, The European Union’s vertical order of competences: The current
law and proposals for its reform, 39 CMLREV 227 (2002).
504
Institutions, powers, decision making and accountability
such cases, the Union is totally dependent on national administrations.32 The
Union does not have power33—Gewaltmonopol—in the traditional sense of the
legitimate physical force of the public authority, entrusted to the state and to it
alone.34 This alone demonstrates, among other features, such as the lack of an
independent fiscal base, that the EU is not a “superstate” as described by some.
So why is there a persistent complaint about the EU’s omnipresent intrusion? At this point, I must come back to the question raised earlier: Why has
the competence issue gained such momentum? One answer may be that the
focus on legislative competences is too narrow. There is some evidence that
what frequently arises as a problem of competences is actually about issues
outside the realm of legislation.
The constitution (art. I-1(1)) seems to imply that there are competences, on
the one hand, and activities beyond these competences, on the other.35 The
position of the German Länder in the competence debate and their view of
European integration may help to illuminate this distinction. It turns out that
the competence issue tends to arise when, broadly speaking, European integration is seen to be intruding. There are a number of examples of this perception,
and for each of these examples the question of the convention’s approach is at
issue. This points to the limits of what the convention was able to achieve.
3.1. The German Länder and the competence debate: The problem of
the third level of public authority in European integration
The German Länder, some with populations as large as 15–17 million and
some larger in area than most EU member states, are emblematic of those entities whose losses through European integration are not compensated for by a
more or less equivalent influence at the European level. The paradigm is one of
asymmetric component units in a composite multilevel political system, with
these units fearing, or perceiving, the loss of policy-making capacities when a
higher level gains increasing political relevance. As the member states themselves are sufficiently represented at the European level,36 it is the regions
32
Alan Dashwood, States in the European Union, 23 ELREV 201, 213 (1998).
33
See Martin Nettesheim, Kompetenzen [Competence], in EUROPÄISCHES VERFASSUNGSRECHT 415 (Armin
von Bogdandy ed., Springer 2003) (pointing to competences in the fields of CFSP and JHA).
34
A counterexample can be seen in the U.S. model where competences of federal or state level
authorities are not just rule-making competences, but “comprehensive” competences extending to
administrative implementation and enforcement of legislation through a separate federal administration and to the judiciary with a separate federal judiciary.
35
36
Von Bogdandy et al., supra note 29, at 415.
This may be related to Herbert Wechsler’s theory of political safeguards of federalism, Herbert
Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection
of the National Government, 54 COLUM. L. REV. 543 (1943), reprinted in HERBERT WECHSLER,
PRINCIPLES, POLITICS AND FUNDAMENTAL LAW 49–82 (Harvard Univ. Press 1961). See also Garcia v. San
Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
F. C. Mayer
505
within states that are actually losing power, at least in member states where
regions are important enough to have something to lose.
The Länder’s threat in the summer of 2000 to refuse to ratify the Nice
treaty partly explains why the competence issue was put on the agenda of
Declaration 23, annexed to the treaty. The German federal government
insisted that the issue be put there in response to Länder demands. Its call for a
catalogue of competences has been reiterated at regular intervals.37
However, it is difficult to find examples of European acts exceeding the
boundaries of European competence that specifically violate Länder rights.
Typically, Länder statements on the subject are vague, as when they have called
for Europe to stick to “genuine European issues”38 without specifying what this
means. One gets a sense of the actual motivations of the Länder from examining ECJ cases in which they have been involved, such as those of the car manufacturer Volkswagen in Sachsen39 and the Westdeutsche Landesbank.40 The
link that they keep establishing between services of general economic interest
(Daseinsvorsorge), competition control, and delimitation of competences41 is
most telling. Apparently, their concern hinges on intrastate economic policy.
Apart from structural policy, it seems that the Commission’s review of state aid
threatens to eliminate the last remaining policy-making options at the Länder
level, as well as incentives to invest in the Länder,42 and this is what preoccupies
the Länder. Subnational-level economic policy is the main tool for attracting
investors and, therefore, the main policy-making instrument with a potential
for attracting voters. Nevertheless, the European competence to review state
aids is clearly laid down in the treaty (arts. 87–89 EC 43).
37
See Jürgen Schwarze, Kompetenzverteilung in der Europäischen Union und föderales Gleichgewicht
[Distribution of competences in the European Union and the federal equilibrium], 23 DVBL 1265
(1995). The principle of subsidiarity was introduced into the treaty primarily at the insistence of
the German Länder in 1992.
38
BR-Drs. 61/00, pt. 2, February 4, 2000. Equally opaque is the conservative position in the
Bundestag which refers to “European core tasks” (europäische Kernaufgaben), BT-Drs. 14/8489,
March 12, 2002, at 2.
39
Cases T-132/96 and T-143/96, Sachsen v. Commission, [1999] ECR II-3663; Case C-156/98,
Germany v. Commission, [2000] ECR I-6857.
40
Case C-209/00, Commission v. Germany, [2002] ECR I-11695.
41
See 2000 Conference of Minister Presidents (Ministerpräsidentenkonferenz (MPK)) (Dec. 14,
2000), protocol n. 3.
42
This is very clearly stated in Edmund Stoiber, Auswirkungen der Entwicklung Europas zur
Rechtsgemeinschaft auf die Länder in der Bundesrepublik Deutschland [Effects of European integration on
the rights of the Länder in the Federal Republic of Germany], 1987 EUROPA-ARCHIV 543, 547.
43
Now CT arts. III-56–58. State aid is considered to be one of the pillars of the internal market.
Removing the control of state aids from the treaties would be tantamount to removing one of the
main goals of the whole integration project; it would encourage a race to the bottom, which may
arguably endanger the whole concept of an internal market.
506
Institutions, powers, decision making and accountability
3.2. When Europe gets in the way and how the convention
dealt with it
The example of the German Länder indicates that it may be helpful to set aside
the narrow legal perspective adopted in articles I-11 to I-18 and simply ask:
Where does European integration make a difference? What European activities
affect member states? And how did the convention deal with these activities?
3.2.1. Commission activities outside the treaties?
The struggle of some of the Länder against the effects of European integration points to real or perceived problems arising from the way the European
Commission uses its powers. Some of the concerns of the Länder in the German
competence debate are about European control of national state aids, which,
when combined with the granting (or denial) of financial support from
European funds, adds to a general perception that the EU is setting agendas
and making policy beyond what is described in the treaties as “European
competences.”44
The example of state aid and structural policy is particularly striking, since
there is no doubt that the control of state aid is a task entrusted to the
Commission. This may also extend to sensitive cases where the funding of
infrastructure is considered to be state aid.45 There is also no doubt that the
Commission has a role in distributing European money. What does not figure
in the treaties is the use of state aid control with a view to complementing
structural policy. Here, the Commission seems to have its own economic policy
agenda. The problem underlying this somewhat technical example is that
the Commission lacks the legitimacy of an actual government. When the
Commission aspires to be a government—by pursuing an economic policy
agenda of its own, for example—this may cause frictions. Other comparable
examples include Commission initiatives in the fields of takeovers,46 chemicals
policy,47 or the way the Commission insists on the stability criteria of the
stability pact.48
In this problematic area, the convention did not take much action. There
was no in-depth effort to better understand and define the role and power
of the Commission (for example, there was no working group on institutions).
This is not to say that provisions in the constitution that concern the
44
See, e.g., Anne Becker, Regionale Wirtschaftsförderung unter europäischer Kontrolle: Beihilfenaufsicht
und Strukturfonds [Promotion of regional economic development under European control: State aid and
structural funds], WHI-Paper 10/01, available at http://www.whi-berlin.de/becker.htm.
45
Sandro Santamato & Jan Westerhof, Is funding of infrastructure State aid?, 14/21 EUZW 645
(2003).
46
Directive 2004/25/EC (takeover bids), 2004 O.J. (L 142) 12.
47
Strategy for a future Chemicals Policy: Commission White Paper, COM(2001)88 final.
48
Case C-27/04, Commission v. Council, 2004 O.J. (C 35) 5 (Jul. 2, 2004).
F. C. Mayer
507
Commission in general may not also affect the role it plays. To put it bluntly:
weakening the Commission—for example, by allowing every member state to
have at least one member on the Commission or by introducing a European
president (art. I-22) as a strong counterpart to the president of the
Commission—will also make it more difficult for the Commission to develop a
policy agenda of its own. It remains to be seen how the institutional order
established by the IGC will work.
3.2.2. Policy coordination outside the treaties: The open method of
coordination (OMC)
Another example of a European activity that is difficult to explain in competence terms is the open method of coordination (OMC), which was formally
instituted by the European Council in Lisbon in March 2000.49 It has been
defined as “a mutual feedback process of planning, examination, comparison
and adjustment of the policies of Member States, all of this on the basis of
common objectives.”50 Typically, the governments agree upon specific policy
goals that are to be achieved within a given time frame. The Commission is
then charged with reporting, periodically, on progress in the member states,
based on data submitted by each state.
It is difficult to capture OMC in legal terms, as it functions outside the realm
of binding rules. This is also why OMC eludes the legal categories of competence, and that is its problem. When OMC is used in lieu of legislation, albeit
with the intention of achieving the harmonization of laws, critics find this circumvention of the legislative process objectionable.51 It undermines the roles of
the Commission as the initiator of legislation, the European Parliament as
colegislator, and national parliaments as institutions that oversee the executive.
The convention debated OMC,52 and Working Group IX even recommended giving it “constitutional status.”53 The convention did not follow that
49
See Conclusions of the Lisbon European Council, March 23–24, 2000, SN 100/00, pts. 37–40,
available at http://www.europarl.eu.int/summits/lis1_en.htm. Lisbon was the first time that
OMC was officially mentioned and also the first time that it was applied in a context other than
employment policy.
50
Definition suggested in the final report of Working Group V on Complementary Competences,
CONV 375/1/02 REV1, November 4, 2002, at 7, available at http://register.consilium.eu.int/pdf/
en/02/cv00/00375-r1en2.pdf.
51
See, e.g., Jean Emile Charlier & Sarah Croche, The Bologna Process and its Actors, University of
Siena Working Paper n. 8 at 14, available at http://www.cresco.unisi.it/wp/wp8.pdf.
52
See, e.g., Final report of Working Group VI on Economic Governance, CONV 357/02, October 21,
2002; Final report of Working Group IX on Simplification, CONV 424/02, November 29,
2002; and Final report of Working Group XI on Social Europe, CONV 516/1/03 REV 1,
February 4, 2003; all documents are available at http://european-convention.eu.int.
53
“Constitutional status should be assigned to the open method of coordination, which involves
concerted action by the Member States outside the competences attributed to the Union by the
treaties.” Final report of Working Group IX on Simplification, supra, note 52 at 7.
508
Institutions, powers, decision making and accountability
recommendation; OMC is not mentioned in the constitution. This has been much
criticized as eliminating an important but—in terms of democratic accountability and control—very problematic aspect of Union activities.54 What probably
kept the convention from formally including the OMC process in the constitution
was the perceived risk that formalization would enhance its importance, without
the assurance that the European Parliament would be sufficiently included.
De facto, OMC is now referred to in part III of the constitution under the headings of social policy (art. III-213), research and technological development
(art. III-250), public health (art. III-278), and culture (art. III-280).
3.2.3. Judicial activism? The role of the ECJ
The jurisdiction of the ECJ is not directly addressed by the competence provisions of the constitution. Subsidiarity does not apply to ECJ decisions. Court
action that corresponds identically to the realm of European legislative action
or concerns conflicts among or within European institutions will generally not
be thought of as a problem. On the other hand, ECJ decisions with direct and
immediate effect in the member states are seen, often enough, as manifestations of European competence. Typically, this will lead to problems in cases
where ECJ decisions prohibit member states from doing something or where
ECJ jurisprudence clearly exceeds the terms of the treaties.
Issues of the first type are fairly easy to resolve. Take the example of the
ECJ’s prohibition of gender-related discrimination in the German military. If
the ECJ prohibits such discrimination in the German armed forces, this may be
perceived as regulating the military of a member state. Hence, complaints
about the ECJ’s Dory decision55 point to the fact that the EU is thought to have
“no competence” in this field. In fact, the decision is simply enforcing
European law, which prohibits gender-based discrimination in the workplace.56 Wherever the treaties establish a prohibition against discrimination
on grounds of nationality or gender, or against distortion of competition, it is
not a matter of positive competence but of what has been captured aptly by the
term compétences abolies.57 “Abolished competence” means that the competence to regulate the military while discriminating against women simply does
not exist any longer in the EU, neither at the member state level nor at the
European level. The difference between this negative competence and regulatory competence is that the EU cannot establish positive rules. Conflating
negative and positive competence ignores the fact that numerous areas of life
are affected by European non-discrimination and non-restriction provisions.
54
See, e.g., von Bogdandy et al., supra note 29, at 417.
55
Case C-186/01, Alexander Dory v. Bundesrepublik Deutschland, [2003] ECR I-2479.
56
Art. 141 EC; Council Directive 76/207, 1976 O.J. (L 39) 40.
57
DENYS SIMON, LE SYSTME JURIDIQUE COMMUNAUTAIRE [THE LEGAL SYSTEM OF THE COMMUNITY] 83 (2d ed.,
PUF 1998), referring to VLAD CONSTANTINESCO, COMPETENCES ET POUVOIRS DANS LES COMMUNAUTES
EUROPEENNES [COMPETENCES AND POWERS IN THE EUROPEAN COMMUNITIES] 231 (LGDJ 1974).
F. C. Mayer
509
The convention did little to clarify this issue; nor did it engage in debate on
what areas should be exempt from ECJ jurisdiction.
Regarding the second category of issues—those related to judicial
activism—there are numerous examples of the Court stepping outside the narrow wording of the treaties and referring to general principles and to effet utile.
These include Van Gend en Loos and Costa v. ENEL,58 the jurisprudence on
direct effect of directives, the Francovich jurisprudence,59 and the entire fundamental rights jurisprudence, in particular, the strand of cases running from
Elliniki Radiophonia Teléorassi (ERT) to Carpenter,60 which extends the reach of
European fundamental rights to the member state level.
The ERT jurisprudence61 is of particular interest in the present context, as
the draft constitution seems to take up the issue in article II-111 (previously
art. 51 of the Charter). According to the 1991 decision in ERT,62 member
states must respect European fundamental rights when national rules fall
“within the scope of Community law.”63 Member states are within the scope of
Community law when they implement Community rules, for example, directives. But ERT went beyond that; in that instance, the ECJ held that member
states are also within the scope of Community law when they invoke treaty
provisions, such as article 45 or 55 EC (ordre public), to justify national regulation that hinders, for example, the freedom to provide services. This kind of justification, provided for by EC law, must be interpreted in light of European
fundamental rights.64
58
Case 26/62, Van Gend en Loos, [1963] ECR 1 (English special edition); Case 6/64, Costa v. ENEL,
[1964] ECR 585 (English special edition).
59
Cases C-6, 9/90, Francovich v. Italy, [1991] ECR I-5357.
60
Case C-60/00, Mary Carpenter v. Secretary of State for the Home Department, [2002] ECR I-6279.
61
Case C-260/89, ERT, [1991] ECR I-2925; Cases 60/84 and 61/84, Cinéthèque, [1985] ECR
2605, pt. 26; Case 12/86, Demirel, [1987] ECR 3719, pt. 28; Case 2/92, Bostock, [1994] ECR
I-955, pt. 16; Case C-368/95, Familiapress, [1997] ECR I-3689. See also Case C-299/95, Kremzow,
[1997] ECR I-2629, pt. 14; Case C-159/90, SPUC v. Grogan, [1991] ECR I-4685, pt. 31.
62
Case C-260/89, ERT, [1991] ECR I-2925, pt. 43.
63
In the French text: “le champ d’application du droit communautaire.” The Court also says that
it cannot review member state measures “which do not fall within the scope of Community law.”
In the French text: “une réglementation nationale qui ne se situe pas dans le cadre du droit
communautaire.” Part of the confusion around the ERT jurisprudence is due to the fact that the
English version of ERT uses the same wording in these two statements whereas the French version
(as well as the German) uses different wordings.
64
For a comparison with the American concept of incorporation, see Demetrios Metropoulos,
Note, Human Rights, Incorporated: The European Community’s New Line of Business, 29 STAN. J. INT’L
L. 131 (1992). Given that these cases are not that frequent and that the ECJ always points to the
European Convention on Human Rights (ECHR) in the ERT formula, these cases could also be read
as the Court simply directing attention to the member states’ obligations under the ECHR. See
Daniel Thym, Charter of Fundamental Rights: Competition of Consistency of Human Rights Protection
in Europe?, 11 FYBIL 19 (2000) at n. 82.
510
Institutions, powers, decision making and accountability
The Charter of Fundamental Rights65 deals with this issue in article 51,
now article II-111 of the constitution. Article II-111(1) states that the
provisions of the charter are addressed to the member states “only when they
are implementing law.” Article II-111 is one of the few charter provisions that
were modified in the constitution, apparently due to pressure from the United
Kingdom. Article II-111(1) now affirms respect for the limits of the powers on
the Union conferred on it in the other parts of the constitution. Paragraph 2
now states that the Charter “does not extend the field of application of Union
law beyond the powers of the Union.” The explanations established by
the praesidium of the first convention were also modified, as far as article
51/II-111 is concerned. The preamble of the charter (the second preamble
in the constitution) now explicitly refers to these explanations.
All this could be read as being directed against the ERT formula: the member states must respect European fundamental rights when implementing—
and not when invoking exceptions to—European law. The expression “field of
application” of Union law, which article II-111(2) seems to equate with “the
powers of the Union,” (note: “powers” not “competences”) is reminiscent of
the key formula in the ERT case (“champ d’application”).
Considering that the praesidium explanations refer to the ERT cases, it is
probably possible to argue that article II-111 does not assert that member states
are bound by European fundamental rights when they invoke exceptions to the
fundamental freedoms provided for by European law.66 It is probably not a
coincidence that in 2002, with the Carpenter decision, the Court turned to a
different formula, avoiding such phrases as “scope/context of Community
law” or “implementing European law,” to express the concept of ERT.
According to Carpenter, a member state “may invoke reasons of public interest
to justify a national measure which is likely to obstruct the exercise of the freedom to provide services only if that measure is compatible with the fundamental rights whose observance the Court ensures.”67 The ERT issue is not
the subject of this essay, but as a general point, it seems to me that the
ERT/Carpenter line of cases should be upheld, as it aims at the equal application of European law for all Union citizens and, after all, the interpretation of
provisions such as article 30 EC is the interpretation of EU law.
In the current context, it should be noted that the way the convention
and the IGC dealt with article 51/II-111 could be read as evidence of the
65
1977 O.J. (C 103) 1.
66
The German Federal Constitutional Court quoted article 51 of the charter and the ERT case
together, implying that there is no contradiction. See 2 BvB 1-3/01 (banning the NPD party)
(Nov. 22, 2001), at http://www.bverfg.de.
67
Case C-60/00, Mary Carpenter/Secretary of State for the Home Department, [2002] ECR I-6279,
pt. 40. The crossborder element that the ECJ detects in that case is so weak that it raises the question whether it is sufficient to enter into the scope of application of Union law (services) simply to
consult a website originating in another member state.
F. C. Mayer
511
convention’s and the IGC’s willingness to curb the Court’s activist approach to
European fundamental rights, as far as it extends to the member states.
3.2.4. Is there a pattern?
Can all this be attributed to the convention’s shying away from imposing limits
on the activities of the Commission, and, in particular, on those of the Council
of Ministers and the European Council, on the one hand, while curbing the
activist Court, on the other?
No. The convention totally ignored the entire field of fundamental freedoms
and the activities of the ECJ in that area. This can be illustrated by looking
more closely at the Court’s Carpenter decision, concerning the deportation
from the United Kingdom of a third-country national who was married to a
U.K. citizen.68 For the Court, the fact that the citizen, Mr. Carpenter, was
required by his business to travel in other member states, providing and receiving services, was enough to establish a nexus with European law. According to
the ECJ, Mr. Carpenter could travel more easily with his wife at home looking
after his children from his first marriage; thus, her deportation would impinge
on his right to provide and receive services. Although the U.K. government
invoked reasons of public interest to justify the deportation, the Court held
that it constituted an interference with Mr. Carpenter’s exercise of his
European fundamental right to respect for family life.
If one thinks of the part of the case that established a link with European
law as part A, and the part that is about the limits imposed by European fundamental rights on member states (the ERT issue) as part B, one sees that the
convention looked only at the part B question and did not even consider the
part A problem.
This is surprising, since the reach of fundamental freedoms—as defined by
the Court—may be much more relevant than the ERT scenario to a perception
of intrusion due to European integration.69 And considering such cases as
Preussen Elektra,70 it would have been a genuine political task to help the Court
set policy preferences in such areas as environmental protection, for example.71
Why did the convention invest so much time in the competence aspect of
fundamental rights and almost none in the competence aspect of fundamental
freedoms? One answer is that most convention members did not realize the
impact of the internal market provisions. It may also be that there was simply
not enough time to look at the internal market provisions in detail. Whatever
68
Id.
69
For the link between fundamental freedoms and article 95 EC, see Joseph Weiler, The Constitution
of the Common Market Place, in THE EVOLUTION OF EU LAW (Craig & de Burca eds., Oxford Univ.
Press 1999).
70
71
Case C-379/98, Preussen Elektra v. Schleswag, [2001] ECR I-2099.
In Preussen Elektra the Court upheld national legislation that aimed to protect the environment,
but the decision is almost incompatible with previous ECJ case law.
512
Institutions, powers, decision making and accountability
the reason, it may turn out that not debating fundamental freedoms was a
major mistake of the convention.
3.3. The limits of the convention and the limits of law
What is still not clear is why the competence debate, initially triggered by the
German Länder and then pursued halfheartedly by the German federal government, was taken up by other member states, such as the United Kingdom,
since it was probably not out of concern for their own subnational authorities.
The answer is that the competence issue has become a code word for the future
of European integration as such. How much Europe do we want? What kind of
Europe do we want?
This also applies to the constitutional theory debate. It may fairly be said
that the view one takes of the competence issue depends to a large extent on
one’s basic conception of European constitutionalism and on which substantial
theory of European constitutionalism one takes as a starting point. Conceiving
of European integration in terms of classical federal-state mechanisms, or in
quasi-federal terms, will lead to a different view of the competence issue than
if one looks at European integration from a public-international-law perspective or a confederal angle.72
What should be noted, however, is that in rhetoric at least, the constitution
seems to be inspired by sovereignty concerns. The initial draft of article I-1,
stating that the Union “shall administer certain common competences on a
federal basis,”73 was revised to read “shall exercise in the Community way the
competences [the member states] confer on it”.74 Several provisions insist that
it is the member states—and not the constitution—that confer competences
on the Union (art. I-1(1), art. I-11(2))75 (“competences conferred upon it by
72
An example of a confederal approach may be seen in the German Constitutional Court’s
Maastricht decision, where it reserved the right to declare European acts ultra vires, Maastricht,
1993 BVerfGE 89, 155. See also the Danish Maastricht case, Carlsen et al./Rasmussen (Højesteret
decision), I 361/1997, UfR (1998) 800. For a more recent example of how national courts treat
this issue, see Thoburn v Sunderland City Council et al. (“Metric martyrs” case), 2002 CMLR 1461.
73
Draft of Articles 1 to 16 of the Constitutional Treaty, CONV 528/03 (Feb. 6, 2003), art. 1, available at http://register.consilium.eu.int/pdf/en/03/cv00/cv00528en03.pdf.
74
Draft Treaty establishing a Constitution for Europe, CONV 850/03 (July 18, 2003), art. I-1,
available at http://register.consilium.eu.int/pdf/en/03/cv00/cv00850en03.pdf. See also Draft
Constitution, Volume I—Revised text of Part One, CONV 724/03 (May 26, 2003), available at
http://register.consilium.eu.int/pdf/en/03/cv00/cv00724en03.pdf. Replacing “federal” with
“community” appears odd, as the European Communities cease to exist.
75
See in that context the different conceptions of the relationship between federal power and
states of James Madison and Alexander Hamilton in the Federalist Papers of 1787/88, ROBERT
BURT, THE CONSTITUTION IN CONFLICT 51 (Harv. Univ. Press 1992): On the one hand, there is the
conception of a union founded by the states, being a closer union than that of the Articles of
Confederation but still with a substantive role for the states (Madison in Federalist No. 51). On the
other hand, there is the emphasis on a distinct and sovereign federal power (Hamilton in Federalist
No. 78). See also the Virginia/Kentucky-Resolutions 1798/99 and the nullification doctrine
F. C. Mayer
513
the member states in the Constitution”).76 This may be read77 as bringing
European law—or at least its terminology—closer to the respective provisions
of the member state constitutions, which typically speak of “conferring” or
“transferring.”78 Although there are other provisions in which it is the constitution that confers competence (art. I-14(1)), some say that emphasizing that
the member states confer competence may threaten the founding principles of
European law, its direct effect, and the primacy of European law as principles
resting on an interpretation of the European legal order as an autonomous
order.79 I am not so sure that the wording of the constitution is really incompatible with the concept of an autonomous legal order in the sense of the ECJ’s
Van Gend en Loos and Costa jurisprudence. In these decisions, the Court emphasized the distinctness of the legal order (“the EEC Treaty has created its own
legal system”80), and clearly stated that the powers stem from the member
states (“from the States to the Community”81).82 It must also be kept in mind
that the European legal order is not in the hands of the member states alone,
as article 48 TEU requires that member states and EU institutions both consent
to treaty modifications.83 Furthermore, article I-1 of the constitution states
that establishing the Union reflects the will of European citizens. All in all,
there is still room to consider the treaty “an independent source of law.”84
Thus, the European legal order remains an original order, outside the publicinternational-law paradigm and driven by a constitutional paradigm.
established by John Calhoun in the first half of the nineteenth century, CALHOUN, A DISQUISITION ON
GOVERNMENT AND A DISCOURSE ON THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES 146 (1851).
For a comparative view see Franz C. Mayer, The Delimitation of Powers—Lessons from the United States
for the European Union?, in THE CONSTITUTIONAL CHALLENGE IN EUROPE AND AMERICA: PEOPLE, POWER, AND
POLITICS (Daniel Halberstam & Miguel Poiares Maduro eds., Cambridge Univ. Press forthcoming).
76
For the modification of this formula, see Draft Constitution, Volume I—Revised text of Part One,
supra note 74.
77
Von Bogdandy et al., supra note 29, at 415.
78
“Hoheitsrechte übertragen” (Art. 23 of the German Basic Law); “transferts de compétences”
(Art. 88–2 of the French Constitution).
79
This concern is elaborated in von Bogdandy et al., supra note 29, at 416.
80
Case 6/64, Costa/ENEL, [1964] ECR 585 (English special edition), at pt. 3.
81
Id.; Ophüls, Juristische Grundgedanken des Schumanplans [Basic legal concepts of the Schuman plan],
1951 NJW 289, at 290, relates this to the concept of federalism suggested by Calhoun. For an
analysis of Calhoun’s intention, see FRANZ C. MAYER, KOMPETENZÜBERSCHREITUNG UND LETZTENTSCHEIDUNG
[THE FINAL WORD ON ULTRA VIRES ACTS] 285 (Beck 2000).
82
See also the Federal government’s official introduction to the German EEC Treaty Ratification
Statute, referring to a “European construct of a constitutional nature,” emphasizing that the
Community is a transnational community with public authority of its own, 2 Wahlperiode,
Bundestags-Drucksache 3440, Anlage C, at 108.
83
See Nettesheim, supra note 3, at 425.
84
Id.
514
Institutions, powers, decision making and accountability
The political question “Who does what?’ is not just about Euroskepticism.
This is why I am not convinced that this aspect of the debate can be reduced to
the issue of sovereignty,85 since most politicians at the member state level
understand that sovereignty is increasingly a fluid concept. There is a strand of
argument that is not so much concerned about the EU or EC’s encroaching on
the national level as it is critical of such supranational European players as the
Commission, the EP, and the ECJ. It does not have a problem with “transferring
power to Europe,” so long as the state governments remain in the driver’s seat.
From this perspective, the critical competence questions concern the decisionmaking process (institutions, qualified majority voting) and judicial control.
These issues were far too hot for the convention to handle, as evidenced by
the controversy about the institutional architecture that almost caused the
IGC to fail. Thus, the narrow understanding of competences that the convention adopted was probably the only feasible option. Had the convention focused
on the purpose and finality of European integration, it would probably not
have been able to find consensus.
4. Conclusion
The convention clearly adopted a restricted understanding of competence as
legislative competence. Even the limited field of legislation was not fully
explored, since part III of the constitution, which includes the competence
provisions from the former treaties, was not debated in depth. This is unfortunate. The actual competence provisions are laid down in part III. A serious
political debate on some of the issues of part III, such as the reach of fundamental freedoms (art. III-154, currently art. 30 EC) or common commercial
policy (art. III-315), would have been helpful. Still, all things considered, the
result of the convention’s work is an improvement over the previous situation.
Given the nature of the European construct as a constitutionalized multilevel system without strong hierarchies, it seems to me that what is best suited
to the European situation are tools and mechanisms that emphasize political
safeguards to protect affected interest. This suggests “soft” procedures, that is
to say, mechanisms aimed at raising sustainable sensitivity on competence
issues. The work of the convention seems to have been inspired by a similar
understanding of the issue, given that it refrained from a major modification of
the existing competence order or the creation of new institutions. Instead, it
relied on the early-warning system and reporting mechanisms, which will
have to pass a practicability test.
A broader understanding of the competence issue looks at all aspects and
kinds of European integration that may be perceived as intruding on the
authority of the member states. Here the EU faces a particular challenge. In a
85
This is the position taken by von Bogdandy et al., supra note 29.
F. C. Mayer
515
nonunitary system, the competence question depends as often as not on the
underlying concepts of the relationship between two distinct levels of public
authority. Because of the power of entities at the sub-state level in some member states, the EU has to cope with three levels of public authority. More generally, it seems to me that the crux of the competence issue in nonunitary
systems, such as the EU, consists in ensuring that all those involved in the
decision-making process show a consistently high level of sensitivity in matters of competence. This also relates to competences in a larger sense.
In other words, the competence debate is not a malfunction of the Matrix.
An ongoing debate regarding European competences and activities is in itself
the best means of monitoring the proper exercise of competences. This can
be achieved neither through the drafting of competence provisions, however
detailed, nor by means of institutional arrangements alone. It is also a question of a specific constitutional culture.
Finally, the competence issue is also a chiffre for a much larger question:
What is European integration all about and where should it lead? According to
this reading, which also implies a broad conception of competence, the seemingly innocuous formula “Who does what?” becomes the fundamental question of European integration, namely, “How much integration do we want?”
In other words, to a large extent, the debate on European competences is
also a debate on the state, and the very purpose, of European integration. This
is probably the most important question of European integration and, hence,
a genuinely constitutional one. The convention has not given a comprehensive
answer to the fundamental questions of the finality, purpose, and reach of
European integration. Some of the provisions it suggested indicate that there
is, among some, a deep distrust of the Union, which runs counter to the idea
of a Rechtsgemeinschaft, a community of law, built on basic trust. Had the
convention attempted to answer these fundamental questions of European
integration, it would probably have fallen apart.
Therefore, there will be a sequel. Whether the theater is another IGC,
another convention, a member state parliament, or a constitutional courtroom, the competence issue will surely reappear.