Learning From the Eu Constitutional Treaty: Democratic Constitutionalization Beyond the Nation-State by Ben Crum

Author:Ben Crum [Crum, Ben]
Language: eng
Format: epub
Tags: Democracy, Political Ideologies, Comparative Politics, Political Science, General
ISBN: 9781136582103
Google: EurGBQAAQBAJ
Goodreads: 17547382
Publisher: Routledge
Published: 2011-11-01T00:00:00+00:00

5.3 What should the European Union do? Competences and ability to act

The question of the Union's competences is crucial because it ultimately involves the rationale for cooperation. The Union acquires a competence to act only if it is explicitly provided with a legal basis for such action in the treaties. Since such a legal basis requires the consent of all member states, it basically presupposes that all recognize that there are certain gains to be reaped from acting together on a certain issue. However, these potential efficiency gains have to be weighed by each state against the risk of seeing a common policy adopted that goes against its interests. Hence, the essential dilemma that member states face in granting powers to the Union is between the efficiency of common action and the risk of national autonomy being infringed upon.

The prospect of potential gains from common action is generally enough to provide the Union with a competence. However, to contain the risk of national autonomy being infringed upon, the exercise of such a competence can be made subject to a wide range of constraints. Most prominently, decision-making on a competence has been restrained in the European Union by maintaining the requirement of unanimity among all member states in the Council of Ministers. Yet to ease legislation, starting with the European single market, decision-making on more and more issues has become subject to qualified majority voting (QMV) in the Council. Certainly after the enlargement of the Union to twenty-seven member states, insisting on unanimity would appear a solid guarantee for the competence in question to remain a dead letter.

What is more, even if the Council is able to adopt legislation, concrete policy results are often slow to materialize. While most of the implementation comes down to the member states, there is ever more demand for effective coordinating and implementing powers at the European level. In the domain of the single market, the Commission plays a key role in facilitating implementation. However, in other domains the member states have been reluctant to establish European-level institutions to drive implementation forward, or have opted to do so through specialized bodies such as Europol and Eurojust.

The Laeken Declaration pointed to a mismatch between the Union's objectives and citizens’ expectations: ‘Citizens often hold expectations of the European Union that are not always fulfilled. And vice versa – they sometimes have the impression that the Union takes on too much in areas where its involvement is not always essential’ (European Council 2001). Further, the European Council also recognized a gap between the Union's objectives and its actual performance. This gap is most glaring in the two intergovernmental ‘policy pillars’: foreign policy and justice and home affairs. The terrorist threat and the international engagement in Afghanistan and Iraq that dominated political agendas after 11 September 2001 revealed EU policies in these fields to be rather thin.

Notably, these challenges were not necessarily best addressed by formulating new competences for the European Union. In fact, in many regards the Union already enjoyed a rather encompassing range of competences (cf.

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