Policy Making in the European Union - Policy Making and Implementation

Table of Content

1. Introduction

2. Policy Making in the European Union
2.1 Legal Foundation of the European Union
2.1.1 Competence and Limited Power
2.1.2 Implied Powers
2.2 Primary and Secondary Sources of EU Law
2.2.1 Regulations
2.2.2 Directives
2.2.3 Decisions
2.2.4 Sui Generis Acts, Soft Law and Case Law
2.3 European Union Institutions
2.3.1 Commission
2.3.2 Council
2.3.3 Parliament
2.3.4 Court
2.4 Others
2.4.1 Member States and National Interests
2.4.2 Interest Groups and Lobbying

3. Implementation of EU Policy
3.1 Enforcement of EU Law regarding Article 10 TEC
3.2 Enforcement of EU Law regarding Articles 226-228 TEC
3.3 Sanctions
3.4 Non-compliance and Reciprocity

4. Conclusion

Bibliography

1. Introduction

Now, in January 2002, a visible step in European integration has been accomplished. With the introduction of the European €-currency about 296,8 millions citizen¹ of the European Union (EU) will hold the new symbols of unity of Europe’s peoples in their hands. What began with an attempt of reconciliation and co-operation via the ECSC in 1952 has now developed towards a so far unprecedented transfer of sovereign rights and competence from nation states to a supranational/intergovernmental organisation. Ho w- ever, throughout the EU prevail doubts concerning the deeper mechanism of policy making. Despite certain inscrutability and the mysterious nature of decision making there are demands for more democracy in the Union. On the other side it may be as- sumed that most of the European citizen do not really take notice of high and low poli- tics decided upon in the European institutions. Aim of this paper shall therefor be a closer elaboration of the policy making process in the European Union, the enforcement of decisions on European and national level, and finally influences or interdependencies from outside the formal institution, interfering in Europe’s policy and polity.

Hence, the results of the Nice IGC are not ratified yet - which might not be assumed soon - I focus on the binding regulations of the Amsterdam Treaty². After a short description of the - as I would prefer to name it - macro level (Commission, Council, Parliament, Courts), where provisions are concluded, the implementation of this policies and decisions on the micro/national level shall be explained thereafter. Finally outside impetus (lobbying, national interests, etc.) on the decision and interpretation process shall be elaborated in a limited scope as well.

2. Policy Making in the European Union

JACQUES DELORS himself declares that the treaty establishing the European Union will for sure not become a part of fine literature. Drafted by lawyers it is according to Delors hard to understand without a manual³. Though I am not a lawyer the following lines shall elaborate the constitutional foundation of the European institution.

Yes, the EU in its today’s shape is a construction best to describe by a sui generis structure. It is not a state yet, despite the lack of a nation or even a European people as well as sovereign and fully independent institutions (i.e. foreign policy, military, etc.). Nevertheless the EU possesses several areas typical owing to sovereign states. Due to the history of integration and the more feasible and advantageous economic rapproche- ment, most of the occupied fields of policy of the EU are of economic nature. These ca- pacities, however, do not result out of a self-sustaining development, but from an agreed transfer of competencies from the Member States to a higher organisation. The sui generis character of the EU had been also identified through the German Bundesverfas- sungsgericht (BVerfG). It had to decide whether the Treaty of Maastricht does interfere in the constitution of Germany to such an extent, that it proves to be inadmissible in the German legal system, or even unconstitutional. Yet, according to the BVERFG’s deci- sion, the EU is something between a federation (“Bundesstaat”) and a confederation (“Staatenbund”). The court coined the term of the so-called “Staatenverbund”, which implies the membership in a supranational organisation, while preventing Germany be- coming a subordinate part of a European state⁴.

2.1 Legal Foundation of the European Union

A constitutional like framework of the EU may be assumed with Article 6(1) TEU, stating that the “Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law”. Yet, SHAW identifies a multilevel constitutional system. It consists of the 15 constitutions of the Member States and the European Treaties itself. Another peculiarity of the European constitu- tional framework and legitimacy is henceforth discovered in Article 6(2) TEU implying a unity or even fusion of the legal and constitutional order of the EU⁵. Referring to the already quoted BVERFG decision the EU derives its power from its Member States and does so regarding its legal foundation⁶.

2.1.1 Competence and Limited Power

Article 1 TEU provides⁷ that decisions of the EU have to be taken “as closely as possible to the citizen”. This refers to the principle of subsidiarity, which became leading princi- Literaturgeschichte eingehen. Ohne genaue Gebrauchsanweisung ist er schwer zu verstehen. Er ist das Ergebnis vielfacher Kompromisse und von Juristen geschrieben “. ple of the EU, in Article 2 TEU, extending the Article 5 TEC provision to all fields of policy of the EU. However, the EU Treaties do not grasp subsidiarity by its definition. Article 5 TEC defines the principle to such an extent that higher authorities should act “only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community”. Yet, notions of subsidiarity may already be found in times of Aristoteles. Subsidiarity is far more than sheer decen- tralisation. Especially the provision in the EU Treaties is rather a rational argument con- cerning politics⁸. A pure definition in contrast to the EU/EC provision demands actions or institutional acts carried out on the lower institutional level⁹. Only in the case, that the inferior unit - though having an advantage in regard to information on the particular problem - is by its resources and abilities not able to overcome the problem, the supe- rior institution may intervene¹⁰. Instead of interventionist behaviour, pure subsidiarity requires restrains on governmental influences, personal responsibility, and the free spread of potentials¹¹. In contrast to Article 5 TEC, there is no trace of a term ‘better’. Accordingly, it may be assumed that all actions could be carried out ‘better’ by the su- perior institutions of the EU, since it has a much larger budget and other resources at its disposal. Furthermore Article 6(4) TEU ascertains that the “Union shall provide itself with the means necessary to attain its objectives and carry through its policies”. Though potentially contradicting the principle of subsidiarity, this provision opens the opportu- nity for the EU to act as a supranational body, while increasing decisional autonomy of the Union - even in the intergovernmental pillars¹². Yet, the quasi-sovereign rights of an emerging European state and its law and policy making activities seem to be limited by forces outside and inside the Union, i.e. the Member States. Policy making in the Euro- pean Union is hence limited, and actions by EU institutions are encircled through com- petencies the Member States conferred to the EU - or national courts deem to be trans- ferred upwards¹³. Thus, the EU has a substantive constitution¹⁴. In particular the BVERFG denies that Article 6(4) TEU establishes a so-called competence-competence, the authority to create or accumulate new areas of exclusive power of the EU’s institu- tions (“Kompetenz-Kompetenz”)¹⁵. As assumed, this provision does not provide the EU with an opportunity to accumulate unlimited power over not specified fields of activi- ties. Despite a lack of a European people, the democratic foundation of the EU derives only out of explicitly conferred authority from the side of the legitimated Member States, i.e. the High Contracting Parties. Albeit, most of the shared responsibilities con- cern economic matters and are therefor subject to the EC provisions. Thus the BVerfG identifies apart form the principle of subsidiarity a restriction with Article 4 par. 3 TEC (“Kompetenzaus ü bungsschranke”): “Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty”. However, the BVERFG ap- preciates the increasing democratic foundation of the EU, encircled by its guiding prin- ciples. In that sense - as SHAW pointed out - the EU is a self-limiting and power sharing supranational body, which acts at least constitutionally. The rule of law, and hence the law making activities of the EU institutions and its Courts fill the gaps the EU Treaties left open. Additionally, Article 10 TEC demands the loyalty of the Member States to- wards the Community - the principle of Community loyalty. In fact it binds the Mem- ber States to their own law. So, according to SHAW, the rule of law “… is enforced as much in a decentralised way through the Court’s [ECJ] evolutionary case law on the relationship between EU law and national law”¹⁶. Policy making in the EU therefor is far more than the result of EU institutions’ acts. The EU and its supranational institu- tions obtain their enumerated power and authority from Article 7 (1) par. 2 TEC and Article 5 par. 3 TEC: “Any action by the Community shall not go beyond what is neces- sary to achieve the objectives of this Treaty”. This ensures the shared execution of sov- ereignty the BVERFG had envisaged and could accept¹⁷. This fact may probably under- mine the supranational character of the EC to some extent. Yet, this kind of limited power arrangement is the normal one for any international organisation. Limited powers in collaboration with the principle of subsidiarity may shape the policy-making proce- dures of a federation. However, from today’s stand, the EU is apart from predominantly economic matters far from becoming a federal body. Accordingly the EU constitutional framework refrains from clearly dividing powers and competencies vertically yet¹⁸.

2.1.2 Implied Powers

Due to the fragmentary history of European integration, a coherent legal framework has not been achieved until now. Thus, implied powers allow the EU to take decisions where the Treaties provide no specific power, but where - as SHAW points out - an ob- vious duty or task exists¹⁹. So in a series of cases, beginning with the so-called ERTA case, the ECJ developed a theory of implied external competence²⁰. Restrained to the Common Market, Article 308 TEC provides for measures in the case the Treaty does not accommodate the necessary powers to the Community. If a certain action deems to be necessary to attain, the EU bodies may then take “the appropriate measures”. The Court of Justice, however, in its policy making function, facilitates the further evolution of the competencies of the EU institutions in its case law. Article 308 TEC accommo- dates therefore a structured attempt of implied legislative power within the scope of the objectives of the EU Treaties, yet less limited to its formal provisions²¹. Correspond- ingly, Article 5 par. 1 TEC may be understood in favour of the integration process and in the perception of the ECJ not only to such an extent, that the “Community shall act within the limits of the powers conferred upon it by this Treaty”, but predominately ac- cording to “the objectives assigned to it” - hence, commonly referred to as the auxiliary legal base.

2.2 Primary and Secondary Sources of EU Law

Hence, the EU Treaties (TEU and TEC) in accordance to the national constitutions of the Member States establish the sui generis constitutional framework of the Commu- nity. Yet, these sources of EU law lack detailed regulations concerning the daily appli- cation, and hence are hardly a cohesive legal system. Thus, the secondary source of EU law achieves a relative importance governing the EU. It is legitimated through Article 249 par. 1 TEC. The European institutions are permitted “in order to carry out their task and in accordance with the provisions of this Treaty” to “make regulations and issue directives, take decisions, make recommendations or deliver opinions”. However, most provisions of the EU Treaties leave open the choice of the concerned bodies to proceed by particular ways legislation (whether regulations, directives, or decision). Therefore, already the decision on the way a legislative act establishing secondary law may intend a certain outflow of the policy making process.

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¹ Bundesverband deutscher Banken (ed.)(2001): Euro. Das Buch zum Geld, Köln, p. 12-13.

² According to the German issue, in: Läufer, Thomas (ed.)(1998): Vertrag von Amsterdam. Texte des EUVertrages und des EG-Vertrages, Bonn; and Weidenfeld, Werner/Wessels, Wolfgang (eds.)(2000): Europa von A bis Z. Taschenbuch der europäischen Integration, Bonn.

³ Delors, Jacques (1993): Entwicklungsperspektiven der Europäischen Gemeinschaft, in: Aus Politik und Zeitgeschichte, Heft B1/93, p. 4: „Zweifellos wird dieser Vertrag [Vertrag von Maastricht] nicht in die

⁴ Entscheidungen des Bundesverfassungsgerichts (1994): Urteil vom 12. Oktober 1993 (2 BvR 2134, 2159/92) Vertrag von Maastricht, Vol. 89, Tübingen, p. 181: “Der Vertrag begründet einen europ ä ischen Staatenverbund, der von den Mitgliedsstaaten getragen wird und deren nationale Identität achtet; er betrifft die Mitgliedschaft Deutschlands in supranationalen Organisationen, nicht die Zugeh ö rigkeit zu ei nem europ ä ischen Staat” (Emphasis added); Stüwe (1999).

⁵ Shaw, Jo (2000): Law of the European Union, London/New York, p. 172-173.

⁶ Bundesverfassungsgericht (1994), op. cit.

⁷ Müller-Graf, Peter-Christian (1999): Die Kompetenzen der Europäischen Union, in: Weidenfeld, Werner (ed.): Reform der Europäischen Union, Gütersloh, p. 779-801.

⁸ Gaster, Jens (1998): Subsidaritätsprinzip im Gemeinschaftsrecht, in: Timmermann, Heiner (ed.): Subsidarität und Föderalismus in der Europäischen Union, Berlin, p. 22 and p. 38.

⁹ Schmidt, Manfred G. (1995): Wörterbuch zur Politik, Stuttgart, p. 946.

¹⁰ Lampert, Heinz (1988): Sozialpolitik, in: Albers, Willi et al. (eds.): Handwörterbuch der Wirtschaftswissenschaft, Vol. 7, Stuttgart, p. 73.

¹¹ Nicolaysen, Gert (1994): Funktionalität und Kontrolle der Subsidarität, in: Weidenfeld, Werner (ed.): Reform der Europäischen Union, Gütersloh, p. 157.

¹² Shaw (2000), p. 174.

¹³ Idem, p. 185.

¹⁴ Idem, p. 181

¹⁵ Bundesverfassungsgericht (1994), p. 194.

¹⁶ Shaw (2000), p. 191

¹⁷ Bundesverfassungsgericht (1994), p. 189.

¹⁸ Shaw (2000), p. 214-215.

¹⁹ Idem, p. 216.

²⁰ Craig, Paul/Gráinne de Búrga (1998): EU Law. Text, Cases, and Materials, New York, p. 116.

²¹ Shaw (2000), p. 218.