A multi-tiered Europe: The relationship between the European Union And subnational authorities

October 10, 2005 - nr.19
Summary

Foreword

 

On 4 October 2000 the Minister of Foreign Affairs and the State Secretary for Foreign Affairs asked the Advisory Council on International Affairs (AIV) to produce an advisory report on the relationship between subnational authorities and the European Union. The full text of the request for advice is reproduced in Annexe I.

In preparation for the report, the Advisory Council forwarded this request to one of its four permanent committees, the European Integration Committee (CEI). The members of the CEI are: Prof. F.H.J.J. Andriessen (chair), Dr B. Knapen (deputy chair), H.J. Brouwer, W.S.J.M. Buck, A.E.J.M. Cook-Schaapveld, P. Dankert, N. Kroes, H.C. Posthumus Meyjes, Prof. J.Q.T. Rood, P. Scheffer, W.K.N. Schmelzer, Prof. A. Szász, M.G. Wezenbeek-Geuke and Prof. J.W. de Zwaan. In drawing up the report the CEI was assisted by its official advisors R.C.J.M. van Schreven and J.A. Werner (Ministry of Foreign Affairs). The secretary was M.M.J. Louwerens (secretary of the CEI). The staff were assisted in drawing up the report by A.S. Brinks and M. de Lange (AIV trainees). At its meeting on 26 February 2001, the AIV discussed this report and agreed on the procedure leading to its adoption on 19 April 2001.

During the preparation of this report, the following five experts on Europe and subnational authorities shared their knowledge and information with the CEI: Prof. M.C. Brands (Germany Institute, University of Amsterdam), W.T. van Gelder (Queen's Commissioner in the Province of Zeeland and member of the Netherlands delegation to the Committee of the Regions), Prof. B. Hessel (University of Utrecht), Dr B. Hoetjes (University of Maastricht and Clingendael Institute) and Prof. J.T.J. van den Berg of the Association of Netherlands Municipalties (VNG). Further information was obtained from Frank Hilterman of the VNG. The AIV is extremely grateful to all concerned for their willingness to discuss their views and knowledge with the members of the CEI.

H.C. Posthumus Meyjes and the secretary of the CEI attended the five-day conference on ‘A Europe of the Regions’ held at Wilton Park, Sussex, in 2000.

The AIV considers the relationship between subnational authorities and the European Union (EU) to be a very important issue - firstly because regionalism in a number of Member States has led to institutional changes within the European Union aimed at strengthening the influence and position of subnational authorities, and secondly because the relationship between the various tiers of government is changing as a result of the continuing extension and growing importance of European legislation that affects subnational authorities. It seems likely that subnational authorities will come to play a more significant role within the European Union. Moreover, this issue has been on the EU agenda since the end of the Nice IGC in December 2000. Part of the debate on the final goal and the constitutional arrangements of the European Union concerns the delimitation of powers, and this topic will be on the agenda of the IGC planned for 2004. Finally, the forthcoming enlargement of the European Union will ultimately increase the number of Member States to more than thirty, and this too will affect the relationship between subnational authorities and the EU.

Before the government’s questions can be answered, the meaning of the term ‘subnational authorities’ needs to be clarified. Attempts can be made to define it from a number of different angles (administrative, sociological, etc.). However, whichever angle is adopted, it is impossible to arrive at an unambiguous definition.

This advisory report concerns the relationship between the European Union, the Member States and subnational authorities. For the purposes of this report, the AIV has therefore opted for the administrative definition - namely, all tiers of government below national level. Though admittedly rather broad, this definition comes closest to the reality of a Europe with a multi-tiered, diverse administrative structure. A term that can be used to describe various tiers of government operating as part of an administrative network is ‘multi-level governance’. In terms of ‘administrative weight’, the German and Austrian states (Länder) and the Belgian regions (with powers which in other countries are exercised at national level) are at one end of the spectrum, and subnational authorities with less extensive powers (such as the provinces in the Netherlands, and smaller local authorities in all the Member States) are at the other. Clearly, there is a considerable amount of variation in between these two extremes.

As already mentioned, subnational authorities are increasingly involved in implementing, applying and enforcing EU policy. This occurs at three distinct levels:

  1. EU policy that is specifically aimed at ‘regions’ (regional policy, including structural funds);
  2. EU legislation that affects subnational authorities, in such fields as the environment, competition, social affairs and employment, the four freedoms (free movement of persons, goods, services and capital), as well as parts of third-pillar issues which have been transferred to the first pillar (i.e. asylum and migration);
  3. future EU policy that will have an impact at subnational level (this mainly concerns third-pillar issues which have not yet been transferred to the first pillar, such as cooperation on criminal law and police matters).

 

The structure of this advisory report is as follows. Chapter I (‘A diverse Europe’) outlines how the relationship between subnational authorities, national governments and the European Union has evolved so far. In this chapter the AIV also suggests some possible ways in which the role of subnational authorities could develop. Chapter II (‘Institutional basis’) describes how the role of subnational authorities is institutionally regulated at both European and national level as of 2001. Developments in this country are set out in Chapter III (‘The situation in the Netherlands’). In Chapter IV (‘Conclusions and recommendations’) the AIV provides an overall appraisal of the questions raised in the original request, and discusses possible ways of strengthening the subnational authorities' institutional basis. The report concludes with Chapter V (‘Summary’).

In drawing up this advisory report, the AIV has been guided by the following considerations:

  • the desired Dutch stance on developments affecting subnational authorities within the European Union;
  • the implications of the forthcoming enlargement of the EU.

As far as possible, the AIV has sought to follow on from the principles which it has already formulated on EU issues.1 These principles are as follows:

  • more effective decision-making and strengthening of capacity to implement policy (in this connection, the AIV has looked at the role that subnational authorities can play in improving decision-making and the extent to which decisions can be implemented within the European Union);
  • reduction of the democratic deficit and greater involvement of European citizens.

 


1 AIV Advisory Report No. 12, January 2000, "The IGC 2000 and beyond: towards a European Union of thirty Member States".

 

Summary

This advisory report concerns the desired relationship between the European Union, Member States and subnational authorities (all tiers of government below national level), which are extremely diverse.

The relationship between the various tiers of government is constantly changing. National governments have become just some of the many players in a multi-tiered structure in which EU, national and subnational powers coexist.

The importance of subnational authorities is increasing (a) because of the trend towards decentralisation in a number of Member States, and (b) as a response to globalisation and Europeanisation. Another important factor is ‘regionalism’: the call by subnational authorities for a stronger and possibly more autonomous position in relation to their national governments.

The much more prominent role of subnational authorities within the European Union is also due to the fact that they are required to implement the growing body of EU legislation and are therefore increasingly affected by it. The increase has been particularly rapid since the adoption of the Single European Act, and EU policy now plays a part in almost every area of government.

Subnational authorities have responded to this in two ways. The general response has been that subnational authorities, which are responsible for implementing EU policy and for fulfilling direct and indirect EU obligations, also want to be involved in drawing up EU policy which affects them. In addition, some subnational authorities - particularly those with powers which in other countries are exercised at national level - believe that their autonomous powers are being eroded by the increasing influence of EU legislation. As a result, they are often concerned to protect their own powers.

In the 1980s and early 1990s this fear of relinquishing their powers was one of the factors that sparked a structured regionalist movement aimed at strengthening the institutional position of subnational authorities in the European Union. In general it may be said that trends such as decentralisation and regionalism are basically separate phenomena, but that they can reinforce one another if they happen to coincide.

This pressure for greater influence for subnational authorities in the European Union led to the establishment of the Committee of the Regions and the formal definition of the subsidiarity principle. However, the initiators do not appear satisfied with the results of these institutional changes. As far as can be judged at the moment, the Committee of the Regions and its advisory reports have had little impact on the European Union, mainly because the subnational authorities represented on the Committee are too diverse in terms of their powers, administrative weight and interests. In this connection, it should also be noted that the Committee's advisory reports do not always receive the attention they deserve. Nor, in the initiators' opinion, has the subsidiarity principle had the desired effect, namely that decisions are taken at the most appropriate - i.e. lowest - level, as close as possible to citizens. In general it may be said that differing interpretations of the principle have limited its applicability.

For this and other reasons, the nature of the regionalism that sprang up in the 1980s and 1990s may well change, and it may become more diverse. For example, subnational authorities may focus on strengthening their position in the domestic political arena and/or on increasing cross-border cooperation. Some subnational authorities will continue to focus on protecting their autonomous powers.

The AIV also believes that the desire on the part of subnational authorities to influence EU policy will certainly not decrease and may indeed increase. As the amount of EU legislation that subnational authorities are required to implement and are affected by continues to grow, they will understandably want to be more and more closely involved in drawing up that legislation.

 

In the Netherlands, as elsewhere, the central government and subnational authorities are increasingly aware of the importance of the part that subnational authorities play. In recent years, subnational authorities in the Netherlands have become more closely involved in national decision-making in areas of EU legislation that affect them.

 

The key question is whether the subnational authorities’ oft-expressed wish to be more closely involved in drawing up EU policy should be granted and, if so, how this is to be achieved. In answering this question the AIV has adopted the following principles, which were also used in the earlier AIV report entitled ‘The IGC 2000 and beyond: towards a European Union of thirty Member States’:

  • more effective decision-making and strengthening of capacity to implement policy;
  • reduction (of the democratic deficit) and greater involvement of European citizens.

The subject has also been examined in the context of the forthcoming enlargement of the European Union.

 

The AIV concludes that those Member States that have not already done so should give subnational authorities a greater say at the formative stage of the national decision- making process in policy areas that affect them, since their knowledge and expertise will result in better policy which can be implemented more effectively.

At the same time, the AIV has looked at whether the position of subnational authorities also requires structural improvement at EU level and, if so, whether a workable formula can be devised for this. In general, the AIV’s answer to both questions is no. Firstly, subnational authorities are too diverse in structure, powers, capabilities and interests to be treated identically. Secondly, the AIV considers smoothly operating EU institutions and a transparent, efficient decision-making process of vital importance to the smooth running of the European Union. An institutionalised role for extremely diverse subnational authorities could slow down and hamper this decision-making process. With the prospect of further enlargement, the EU’s decision-making process needs to become simpler and less cumbersome. Thirdly, the AIV believes that the progress of European integration depends on having administratively strong, effective national governments. Any weakening in the position of the Member States would not, in the AIV’s opinion, be in the interest of further European integration.

Turning to reduction of the democratic deficit, the AIV distinguishes between policymaking and policy implementation. The AIV is in favour of policy being implemented at the lowest possible administrative level. This is because subnational authorities provide opportunities for greater democratic control of policy implementation, provided they are publicly accountable to citizens. Nevertheless, appropriate supervision of implementation is still needed at European level.

The AIV believes that the European Parliament has a key part to play in reducing the democratic deficit. The Parliament should have ultimate political control over EU policymaking. This is in line with earlier reports by the AIV in which it recommends strengthening of the European Parliament as a key component of the democratisation process.

The AIV has examined a number of ways of increasing the involvement of subnational authorities at (1) EU level and (2) national level. In the light of, inter alia, the foregoing general appraisal, the AIV has indicated in each case whether or not it recommends the approach in question.

  1. The AIV feels it must confine itself to a number of less radical suggestions for structural reforms at EU level. It has examined four alternatives:

    (a) As regards the Committee of the Regions, the AIV recommends that action be taken to strengthen the Committee in its performance of the advisory tasks laid down in the Treaty, by requiring institutions to indicate to what extent the Committee’s advice has been taken into account, particularly in cases where the advice has been requested by the institution in question. The AIV also recommends that the Committee be granted the right to appeal to the European Court of Justice if its prerogatives are at stake. As regards the Committee's claim that it helps to reduce the democratic deficit, the AIV feels that the Committee is not fully representative in European terms, owing to the diversity of the subnational authorities that are represented within it. The AIV believes that the European Parliament should be primarily responsible for democratic control within the European Union and should play a key part in reducing the democratic deficit. Finally, the idea of strengthening the Committee's position by limiting the diversity of the subnational authorities represented within it raises institutional and practical problems.

    (b) The structure of the European Union is such that powers are assigned at various administrative levels. Indeed, this is the basic assumption underlying European integration. The question of the division of powers will be a central part of the debate on the future of the EU following the Nice IGC. However, the AIV is not in favour of a Kompetenzkatalog if it produces the results intended by the initiators, who seem mainly to want to protect their own national and subnational policymaking powers. In order to achieve this, they want the level at which powers are assigned to be determined in advance, and even want this to apply to powers that have yet to be assigned. This rigid delimitation is also intended to prevent the EU from surreptitiously arrogating new powers to itself. The AIV believes that the dynamics of European integration are based on the principle that no policy area should be excluded from EU influence in advance. Advocates of a Kompetenzkatalog would reverse this principle by denying the European Union powers over certain policy areas a priori. This could paralyse the dynamics of integration. The AIV considers the fear that the European Union may ‘surreptitiously arrogate new powers to itself’ unfounded, since the Treaty allows conditions to be attached when new powers are assigned to the European Union. The AIV also believes that any a priori assignment of powers to specific tiers of government may prove inconvenient, since powers shift over time and from one tier of government to another. Finally, the great diversity of constitutional arrangements would make it difficult to assign European powers in such a uniform manner.

    (c) Delegation of powers to subnational authorities in cases where EU policy affects them is not, in the opinion of the AIV, a matter for the European Union, but for the Member States, which can transfer powers to subnational authorities in accordance with their own national constitutional arrangements.

    (d) The subsidiarity principle, as formulated in the Treaty of Rome and further elaborated in the Maastricht Treaty, cannot be applicable to subnational authorities, since the European Union has no direct relationship with them. As regards the general subsidiarity principle, however, the AIV recommends that policy be implemented at the lowest possible administrative level in order to increase citizens’ sense of involvement and reduce the democratic deficit.

  2. At national level, the AIV recommends that those Member States which have not already done so give subnational authorities a greater say at the formative stage of the national decision-making process in policy areas that affect them. Specifically, the AIV recommends that:

    (a) representatives of subnational authorities be included in the official consultation structure when determining the national position on EU legislation that affects subnational authorities. In the Dutch context this would mean that, wherever relevant, they would be involved throughout the decision-making process, from BNC right through to the Coordinating Committee on Problems of European Integration and Association (CoCo).

    (b) opportunities be created for subnational authorities to have more direct access to policymaking and decision-making in Brussels, for example by including a representative of subnational authorities on the staff of the Permanent Representations to the European Union in Brussels.

It does not seem likely that the enlargement of the European Union will have any fundamental new implications for the relationship between subnational authorities, national governments and the European Union, as outlined above. However, the forthcoming enlargement of the European Union will certainly have an impact on decision-making and implementation of policy. Clearly, the arguments which have led the AIV to conclude that an institutionalised role for subnational authorities in the EU’s decision-making process should not be recommended will carry even more weight in an enlarged Union.

At the same time, the accession of new Member States may give a new boost to regionalism, and this in turn may affect developments in the position of subnational authorities throughout the European Union. It is difficult to foresee at this stage what developments will occur in this area. The AIV does not feel it is possible, let alone opportune, to make predictions about such developments at this juncture; however, it may be mentioned that the position of minority groups is a key aspect of the regionalism issue in many Central and Eastern European countries.


Advice request

Dear Mr Lubbers,

 

The European Union seeks to accomplish the close integration of the Member States – initially at economic, political and administrative level. Within the Member States, subnational authorities too are increasingly coming to recognise the importance of the EU's decision-making and policies. In The State of the European Union: The European Agenda 1999-2000 from a Dutch perspective the government noted that the European Union is having an increasing impact on Dutch municipalities and provinces, a trend also visible in other EU Member States. The further deepening of European integration in the 1990s has brought the subnational level of the Member States within the reach of ‘Brussels’. This includes regions, provinces, Länder (Germany), counties (UK) and communities (Belgium) as well as city twinning agreements and regional cross-border frameworks.

 

The European Union is developing a layered structure, within which subnational authorities have a place alongside Brussels and the Member States. The sheer diversity of subnational authorities makes this process hard to follow. Yet its impact will be felt not only by national states but also by the European Union itself.

This request for the AIV’s advice seeks to chart the role of subnational authorities in the process of European integration to help the Dutch government determine its policy.

Trends
In the Netherlands, subnational authorities bear responsibility for complying with Community obligations. However, they cannot be called to account directly by the European Commission, which must always address itself to the national government. This is partly why the national authorities have built up so many consultative structures (many of them informal) with municipalities and provinces. Examples include the monthly consultations between the Ministry of the Interior, the Ministry of Foreign Affairs, the Association of Netherlands Municipalities and the Association of Provincial Authorities, and the sixmonthly consultations between various layers of administration based on the ‘New-style Administration Agreement’. In 1998 the Public Administration Council studied the domestic aspects of the problem in its advisory report ‘Yield or revise: National administration and law under European influence' ('Wijken of herijken: Nationaal bestuur en recht onder Europese invloed’).

The European Union respects the administrative structures of Member States. The way in which national authorities arrange relations and powers between layers of administration is their own affair. Nonetheless, the EU's policy is increasingly affecting the work of subnational authorities, largely through the knock-on effect of European regulations at subnational level and through EU funds. In this sense, the ongoing integration of Europe does have repercussions for the administrative relations within Member States. Tension may arise between decentralisation and/or regionalisation processes in certain Member States (notably Belgium and the United Kingdom) and the political decision-making in the European Union, where the players, as a rule, are national governments. It should be added that the European Commission's policy explicitly focuses on the regional level in its efforts to reduce economic inequalities between regions. Regional authorities in their turn (particularly in federal States such as Germany and Belgium, but also in Spain and the United Kingdom) exploit this in their efforts to strengthen their hand vis-à-vis national government. They do so by increasingly adopting a more international orientation and seeking to influence European decision-making.

 

Questions
If the above trends continue, European integration will increasingly make itself felt at subnational level. Conversely, as integration becomes closer, the EU and/or national governments will increasingly have to take questions involving subnational authorities into account. The AIV is therefore requested to give a general analysis of the role of subnational authorities in the ongoing process of European integration, and to address the following specific points.

 

The Treaty of Maastricht provides that subnational authorities must have formal channels for making their voice heard at European level. One such channel is the Committee of the Regions. However, the institutional shaping of the European Union is still primarily attuned to Member States and consultations between Member States.

  1. Does the AIV consider it necessary or desirable, in order to improve the way the Union functions, to anchor the involvement of subnational authorities more firmly at institutional level?
  2. Does the Protocol on the application of the principles of subsidiarity and proportionality in the Treaty of Amsterdam, in particular article 9, provide sufficient guarantees, in the AIV's view, that European decision-making will take account of the position of subnational authorities?
  3. Should the position of subnational authorities be strengthened further with a view to their growing significance to continuing cooperation within the European Union?
  4. Do the existing Charters of local/regional authorities (e.g. in administrative matters and on industrial sites) provide sufficient basis for this?
  5. What advantages and disadvantages are attached, in the AIV's view, to the other means that have been suggested up to now for giving subnational authorities a place within European cooperation (a 'Good Governance Charter’; the German proposal for a Kompetenzkatalog)?

Besides these issues, which should take up the lion's share of the report, the government would like the AIV to consider the following questions:

  1. One of the challenges facing the European Union and its Member States is how to involve the EU’s citizens more closely in the process of European integration. This goes to the heart of the legitimacy of the cooperation within the Union. Does the AIV consider that involving subnational authorities more closely in EU cooperation is another way – alongside those already suggested in ‘The IGC 2000 and beyond: towards a European Union of thirty Member States’ – of bringing Europe closer to its citizens?
  2. From the perspective of subnational authorities, increased involvement in the EU is seen as a means of keeping their distance from central government. For instance, in Spain the structural funds have acted as a catalyst for the federalisation of the political system. Some Flemish nationalists see anchoring Flanders in Europe as an attractive alternative to remaining part of a federal state of Belgium. In Germany, the Länder have been in the vanguard of lobbying for the interests of European regions. Given the position of the Länder in the Bundestag, they are highly influential in determining Germany’s position on EU decision-making that will eventually work its way into national legislation. Some see this trend as overblown regionalism. What is the AIV’s view of this growing importance of the regions? What pitfalls does it foresee for the smooth running of the European Union in general and of the first pillar in particular?
  3. The issue of subnational authorities can also be viewed in the light of the accession of new Member States to the European Union. Within the applicant countries there are numerous regions, most of them in border territories, that have ethnic minorities who are in the majority in a neighbouring country. This includes the Hungarians of western Romania and southern Slovakia, the Germans of western Poland (Silesia), the Turks of eastern Bulgaria and so forth.

Furthermore, many regions and urban areas in the applicant countries have structural disadvantages, both social and economic, that qualify them for aid from the structural funds. How would the AIV suggest approaching regional issues in the light of the forthcoming enlargement?

 

 

Yours sincerely,

Dick Benschop

State Secretary for Foreign Affairs

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