MPIfG Working Paper
03/1, February 2003
Effectiveness and Democratic Accountability in the EU
Fritz W. Scharpf
Max Planck Institute for the Study of Societies
The paper begins by examining the functions of
input-oriented and output-oriented legitimating arguments in liberal
democracies. At the European level, input-oriented arguments remain weak, but
legitimacy problems are generally avoided since the policies which can in fact
be adopted under prevailing institutional conditions are still based on broad
intergovernmental consensus. For a variety of new policy challenges, however,
consensus on the choice of European solutions is unlikely to be reached, even
though member states are unable to cope with such challenges on their own. Among
the examples discussed are the notorious problems of a common foreign, security
and defense policy and the spillovers of European economic integration that are
challenging national welfare regimes. The resulting problem-solving gaps, which
may undermine political legitimacy nationally and in the EU, could not be
legitimately overcome by moving from consensual to majoritarian governing modes
at the European level. What could help are modes of differentiated integration
which allow groups of member states to adopt consensual European solutions
applying only to members of the group.
Der Aufsatz beginnt mit einer Diskussion der
Funktion input-orientierter und output-orientierter Legitimationsargumente in
liberalen Demokratien. Obwohl die europäische Union sich kaum auf
input-orientierte Argumente stützen kann, lassen sich Legitimationsdefizite
weitgehend vermeiden, weil die Politik, die im gegebenen institutionellen Rahmen
tatsächlich beschlossen werden kann, sich immer noch auf breiten
intergouvernementalen Konsens stützen muss. Bei einer Reihe neuer
Herausforderungen ist jedoch Konsens über die Inhalte einer gemeinsamen Lösung
unwahrscheinlich, obwohl die Mitgliedstaaten je für sich diese nicht
bewältigen können. Diskutiert werden die Beispiele einer gemeinsamen Außen-,
Sicherheits- und Verteidigungspolitik sowie die Folgeprobleme der erfolgreichen
ökonomischen Integration für den Sozialstaat auf der nationalen Ebene. Die
Folge ist ein Problemlösungsdefizit, das die Legitimität der Politik auf
nationaler und europäischer Ebene untergraben kann. Es könnte nicht durch den
Übergang von konsensualen zu majoritären Entscheidungen überwunden werden,
ohne gerade dadurch die Legitimationsgrundlage der Union zu gefährden. Möglich
und nützlich wäre dagegen ein Ausbau der Optionen einer differenzierten
Integration, die es Gruppen von Mitgliedstaaten erlauben würde, im Konsens
europäische Lösungen zu beschließen, deren Geltungsbereich sich auf die
Mitglieder der Gruppe beschränkt.
Given the widespread concern about the "European
democratic deficit", it seems remarkable that through most of the history
of European integration that was not an issue at all. For decades, political
actors and publics were content to assume the legitimacy of European
institutions and policy processes even though these did not resemble the
patterns of democratic governments at the national level. By contrast, the
present debate often assumes that a lack of institutional isomorphism with the
constitutions of democratic nation states must imply a lack of European
legitimacy. Ignoring the possibilities, and the importance, of functional
equivalence, such debates tend to generate either undue pessimism or unrealistic
hopes and counterproductive recommendations for institutional reform. In order
to avoid both of these pitfalls, I will begin with an abstract discussion of the
prerequisites of legitimate governance and then consider the legitimacy and
limited problem-solving effectiveness of present EU governing modes. Next, I
will try to show that currently discussed institutional reforms that would
increase problem-solving effectiveness will encounter severe legitimacy
problems, and I will conclude by suggesting options that might evade this
My starting point is the function of
legitimacy beliefs in ensuring effective government in liberal polities. In this
view, legitimating arguments invoking shared legitimacy beliefs imply a socially
sanctioned obligation to comply with government policies even if these violate
the actor's own interests or normative preferences, and even if official
sanctions could be avoided at low cost. In the absence of such beliefs,
government would either be ineffective or would have to transform the liberal
polity into a police state. If this functional definition is accepted, it also
follows that the need for legitimation varies with the salience of the
preferences that are potentially violated. Policies that interfere significantly
with life, liberty or property interests, or that violate deeply held normative
preferences of the governed, will need to be justified by stronger legitimating
arguments than pareto-superior policies that are thought to increase social
welfare without violating salient interests. This point will be of some
importance in the later discussion of the legitimacy of EU policies.
Historically, as Max Weber has shown, generally accepted legitimating arguments
have been derived from a variety of premises - religious, traditional,
formal-legal, ideological or charismatic. Under modern (Western) conditions,
however, legitimacy has come to rest almost exclusively on trust in
institutional arrangements that are thought to ensure that governing processes
are generally responsive to the manifest preferences of the governed (input
legitimacy, "government by the people") and/or that the policies
adopted will generally represent effective solutions to common problems of the
governed (output legitimacy, "government for the people").
together, these two types of arguments constitute the core notions of democratic
legitimacy (Scharpf 1970, 1997, 1999: chapter 1).
They both start from the
normative premise that legitimate government must serve the "common
good" of the respective constituency, and that this function must be
protected against both the self-interest of governors and the rent-seeking
strategies of special interests. In the input-oriented tradition, shaped by the
ideals of participatory democracy in the Greek polis and of the French
Revolution, the starting point is the Rousseauian equation of the common good
with the "general will" of the people. If that were all that matters,
legitimacy would be ensured by institutions maximizing either the direct
participation of the governed in policy choices or the responsiveness of
governors to the (collective) preferences of the governed. In small
constituencies, that would justify direct democracy. Where representative
government is a practical necessity, Westminster-type institutions maximizing
the visibility and electoral accountability of majoritarian governments would
have the strongest claim to legitimacy. However, as Rousseau himself had
emphasized, the underlying equation of the expressed preferences of a majority
with la volonté générale depends on highly demanding preconditions.
with, not every aggregate of persons constitutes a demos - i.e., a political
collectivity among whose members majority rule could be legitimated (a point to
which I will return below). Even where that assumption should be unproblematic,
however, one could not be sure that members of the demos or their
representatives will in fact be oriented toward the common good. Hence modern
proponents of input-oriented legitimating arguments, being aware of the
totalitarian potential of the Rousseauian tradition (Talmon 1955), have returned
to nineteenth-century liberalism and its emphasis on "government by
discussion" (Habermas 1962). Here, the communicative logic of the ideal
discourse and the discipline of public deliberation are expected to censor
arguments defending "non-generalizable" interests (Habermas 1973) and
to promote convergence on public-interest-oriented policy choices (Elster 1998;
Habermas 1996; Dryzek 1990; Schmalz-Bruns 1995). Unfortunately, however, these
expectations are hardly incentive-compatible with the very institutions of
competitive democracy that are generally favored by the input-oriented
tradition: Election campaigns are not the most favorable setting for
"truth-oriented" discourses, and competition generates "office
seeking" preferences that may interfere with the
"policy-oriented" preferences which the parties would otherwise pursue
(Scharpf 1997: chapters 7 and 8; Abromeit 2002; Ganghof 2003: chapter 2).
In other words, purely input-oriented legitimating arguments in support of
majoritarian institutions depend on very demanding preconditions and often quite
In the output-oriented tradition, going back to
Aristotle's and Montesquieu's arguments favoring "mixed constitutions"
and canonized by the Federalist Papers, the common interest  was seen to be as
much threatened by the potential "tyranny of the majority" as it was
in danger of being corrupted by self-interested governors. Legitimacy,
therefore, depends on governing institutions  that protect public policy against
both dangers - through the assignment of governmental powers to multiple
political actors that are separately subject to electoral accountability;
through the establishment of independent judiciaries, central banks and
regulatory agencies that are protected against the interference of political
majorities; through the establishment of veto positions and complex
interdependencies between political actors; and through a Bill of Rights that
inhibits government from interfering with certain basic individual and group
However, at the same time as output-oriented legitimacy arguments
emphasize the dangers following from the abuse of governing powers, they also
presuppose a need for effective government with a capacity for achieving common
purposes and dealing with common problems that are beyond the reach of
individuals and families acting on their own, through market exchanges, or
through uncoerced cooperation in civil society. Within the output-oriented
perspective, there is thus an obvious and problematic tension between
institutional arrangements designed to prevent wrongdoing by governors and
exploitation by special interests on the one hand, and institutional
arrangements facilitating the vigorous pursuit of the common interest and
effective problem-solving on the other hand. As the functions of governments
have vastly increased in comparison to those that were presupposed by
eighteenth-century normative theories, this tension has also gained in practical
While specific institutional forms vary widely among constitutional
democracies, it is generally true that more safeguards against the abuse of
governmental power imply an increase in the number of veto positions, and that
more veto players imply a lower capacity for effective action (Tsebelis 2002).
Depending on differences in their historical experience and societal and
political cohesion, the constitutions of democratic polities will be closer to
one or the other pole. Thus, Westminster-type regimes in the UK and, until
recently, in New Zealand minimize the institutional obstacles against government
action which, if employed wisely, may facilitate effective policy responses to
new challenges, whereas an extreme form of multiple-veto constitution has
rendered policy reform very difficult in Germany (Scharpf and Schmidt 2000).
short, democratic constitutions vary not only in the relative emphasis they
place on structures and procedures supporting input-oriented and output-oriented
legitimating arguments, but within the context of output-oriented
considerations, they also vary in the relative emphasis placed on
power-constraining versus action-enabling features. In any case, however, all of
these normative dimensions are considered relevant for democratic legitimacy at
the national level; and even if trade-offs are acknowledged, one could not argue
that performance in one dimension would fully substitute for deficits in
another. What all variants of democratic polities share, moreover, is a reliance
on electoral accountability  as a crucial input-oriented
 mechanism for keeping
governors oriented toward the common interest of their constituencies - which
also implies a basic asymmetry between actors that are electorally accountable
and "independent" governing agencies (Dunn 1999).
In general, the
power to adopt positive policy choices is reserved to the occupants of elective
offices - presidents, prime ministers, cabinets, and parliamentary majorities.
Judicial review is generally understood as a restraint on current majorities,
rather than as a license to legislate (Bickel 1962), and where judicial
legislation occurs nevertheless, it can generally be overturned by political
majorities or super-majorities. By contrast, independent central banks and
regulatory agencies are explicitly empowered to make policy choices. However,
their independence generally rests on legislation which also specifies the
policy purposes they are supposed to achieve and the means they can employ, and
their choices could be reversed, or their institutional independence revoked, by
ordinary legislation if the policies adopted should be in sustained conflict
with the salient preferences of political majorities. In other words,
constitutional democracies make use of various combinations of institutional
arrangements supporting output-oriented and input-oriented legitimating
arguments. Nevertheless, "political" institutions and actors that must
be responsive to input-oriented mechanisms of electoral accountability tend to
be dominant in all constitutional variants.
2Legitimacy in the European Union
As I said in the
introduction, the legitimacy of European government is often judged by the
direct comparison of its institutions with those of national constitutional
democracies. But given the functional definition of legitimacy introduced above,
this criterion may be quite inappropriate: If its function is to justify
voluntary compliance with policies that violate my interests, the need for
legitimation will vary with the salience of the interest that are potentially at
stake. Hence if the legitimacy of European institutions was not considered
problematic through most of their history, the reason may well have been that
European policies were not thought to violate politically salient interests.
2.1The Need for Legitimation
This basic idea has been
central in two strands of the literature claiming that the core governing
functions of the European Community have no need for democratic legitimation. 
Authors writing in the neoliberal tradition of (predominantly German)
"economic constitutionalism" have insisted that European integration
has been, and should be, essentially confined to removing national barriers to
the free movement of goods, services, capital and persons. Interpreting these
economic freedoms as a manifestation of basic human rights, they conclude that
European policies of "negative integration" protecting and enforcing
these liberties against government interventions are in no need of further
democratic legitimation (Mestmäcker 1994; Streit and Mussler 1995; Cassese
2002). By a different line of argument, Giandomenico Majone (1996) comes to
similar conclusions. For him, the EU is primarily a "regulatory
state", committed to the definition and enforcement of rules promoting
(economic) efficiency, whereas it lacks significant taxing and spending powers
that would allow it to pursue politically salient policies of redistribution.
Since, by definition, regulations approximating (Pareto) efficiency will improve
general welfare without violating significant interests, EU policies are, again,
not in need of (input-oriented) democratic legitimation. Instead, their
(output-oriented) legitimacy needs to be protected against political
Theoretically and empirically, it is of course fairly easy to
punch holes in these affirmative arguments. Negative integration will increase
the liberties of exporters and importers but will interfere with the property
rights of hitherto protected producers; the liberalization of monopoly services
may have benefited consumers (in telecommunications more so than in the case of
railroads), but it also destroyed hundreds of thousands of jobs (Héritier and
Schmidt 2000); and any regulation of competitive practices will generate winners
and losers among the competitors involved. Nevertheless it is true that the
market-creating policies of negative integration and liberalization as well as
European regulations of competition and of product standards have had broad
support among member governments (Garret 1992, 1995; Moravcsik 1998)
 and were
generally met by at least the permissive consensus of their publics. In other
words, much of what European policy has actually been doing was indeed fairly
uncontroversial politically, and hence less in need of explicit political
legitimation (Moravcsik 2002).
But that state of affairs has been changing for
some time. When the Single European Act expanded the range of European
competencies to include policy areas like environmental protection, safety at
work and consumer protection, conflicts of interests and preferences among
member states gained in political salience. In the meantime, the disintegration
of the Soviet Empire and the "spillover" effects of economic and
monetary integration and of increasing mobility have pushed problems of internal
and external security as well as issues of employment and social policy on the
European agenda - all of which have extremely high political salience in all
member states. At the same time, these are issues where national interests and
political preferences tend to diverge, and where broad consensus seems difficult
or impossible to reach (Scharpf 2002) - a condition that is bound to be further
exacerbated by Eastern enlargement.
As a consequence, the legitimacy of EU
policies and of the EU polity has itself become an issue of increasing political
salience over the last decade and a half. If evidence were needed, it is amply
provided by both the Commission's (2001a) White Paper on European Governance and
its sequel (Commission 2001b), and even more so by the
"constitutional" debates preceding and following the Treaty of Nice
and by the mandate formulated by the Laeken Summit (2001) for the deliberations
of the Convention. However, before discussing the legitimacy problems associated
with new policy challenges, and proposed institutional reforms that might
resolve them, I find it useful to assess the problem-solving effectiveness and
legitimacy of the governing modes through which the European Union has so far
been dealing with the policy problems on its agenda.
2.2Modes of Governing
Governing modes are defined by
institutional arrangements specifying the constellations of actors participating
in policy choices and the decision rules through which outcomes are to be
determined in case of disagreement among these actors (Scharpf 1997). In the
present de-facto constitution of the European Union, it seems useful to
distinguish between at least three such modes, "intergovernmental
agreement", "joint-decision making", and "supranational
centralization" (Scharpf 2001a).
As of now, the foundational governing mode
of the European Union is intergovernmental agreement. 
Initially, all governments of member states must decide - through Treaties and Treaty amendments that need
to be ratified by all national parliaments (and in some countries, by referenda)
- that certain competencies, otherwise exercised autonomously by member states,
should be transferred to the European level. In the same process, governments
must also decide in which institutional mode these European competencies should
be exercised. They may reserve powers to themselves by insisting on policy
making through unanimous intergovernmental agreement; they may move matters into
the joint-decision mode involving the Commission, the Council and the European
Parliament; or they may directly empower the Commission, the European Court of
Justice or the European Central Bank to make binding policy choices in the mode
of supranational centralization without the further participation of member
governments. These modes differ in their capacity to achieve effective policy
choices in the face of disagreement among member states, and by empowering
different actors with differing preferences, they will affect the substantive
policy outcomes that are likely to be achieved. They also differ with regard to
the range of choices that could be legitimately taken.
2.2.1The Supranational-Centralized Mode
far-reaching form of delegation to supranational authorities occurs in a
two-step process. At bottom, there must be an intergovernmental agreement on the
Europeanization of the policy area. This agreement may also formulate a basic
policy choice and then delegate its further specification and enforcement to a
supranational institution. The clearest example is the authority of the European
Central Bank over European monetary policy. Its mandate to "maintain price
stability" (Art. 105 TEC) was defined through Treaty negotiations, but in
carrying out this mandate the Bank is more insulated against the influence of
EMU member governments or other politically accountable actors than is or was
true of any national central bank, including the German Bundesbank.
two-step process applies in all policy areas where the Treaties impose directly
applicable prohibitions and obligations on member states, or establish rights of
individuals and firms against their governments. In these cases, the Commission
is explicitly empowered to initiate Treaty infringement proceedings against
individual member states and the European Court of Justice is empowered to issue
formally binding and enforceable interpretations of these Treaty obligations.
Again, these interpretations could only be reversed politically through
amendments of the text of the Treaties, adopted unanimously and ratified by all
member-state parliaments. As a consequence, there is an opportunity for a
politically uncontrolled evolution of judicial interpretation which could, and
did in fact, go far beyond the original intent of treaty-making governments
(Scharpf 1999; Alter 2001). 
The legitimacy of EU policies adopted in the
supranational mode is originally rooted in the intergovernmental agreement on
the relevant Treaty provisions. Its ultimate location, therefore, is at the
national level, where it draws on the legitimacy of democratically accountable
national governments and national parliaments. However, given the fact that the
outcome of multi-party negotiations cannot be expected to correspond to the
individual "optimal point" of any negotiating party, it follows that
the relevant test cannot be congruence with ex-ante constituency preferences
(which, if strictly adhered to by negotiators would block agreement);  all that
reasonable voters could ask for is that the outcome should be superior, in terms
of constituency interests, to the hypothetical state of affairs that would
prevail in the absence of an international agreement (Scharpf 2000). As a
consequence, the legitimacy of international agreements would either depend on
outcomes that avoid violations of politically salient interests, or it must be
covered by the blanket electoral accountability of the governments and
parliamentary majorities that have agreed to them.
Strictly speaking, however,
this indirect form of legitimation holds only for the original agreement, but
not for subsequent interpretations of Treaty provisions by the Commission and
the Court - just as current judicial interpretations of the United States
Constitution could no longer be legitimated simply by reference to the
historical agreement of the "Founding Fathers" (Bickel 1962). And
while it makes theoretical sense to disregard the objections of a government
when a consented rule is applied against it (cf. footnote 8, above), that would
not imply that judicial interpretations extending Treaty provisions beyond the
historical intent of the negotiating governments could be legitimated by the
same logic. Moreover, as Karen Alter (2001) has emphasized, the requirement of
unanimous agreement and ratification for Treaty amendments protects judicial
legislation against political revision even by very large majorities - which
also undercuts arguments deriving legitimacy from the assumption that all
instances of acquiescence by member governments must reflect a tacit consensus
But what type of argument could then justify the policy-making
functions of the European Court of Justice and the Commission? As is true of
judicial interpretation nationally, legitimacy beliefs draw on a culturally
ingrained respect for "the Law" that antedates modern democracy, and
on counterfactual beliefs that judges do not legislate but are merely acting as
la bouche de la loi. What matters more in political terms, however, is the fact
that the actual manifestation of judicial legislation will primarily take place
within the judicial systems of member states, where European law is invoked by
private parties in controversies with their government or with other private
parties, and where courts will defer to the preliminary rulings of the ECJ (Art.
234, ex 177 TEC). Since national high courts have accepted the doctrines of
direct effect and supremacy as well as the ultimate authority of the ECJ to
interpret European law, national governments and other parties opposing a
particular ECJ ruling are typically trapped in the procedures of their national
judicial systems whose final judgments they could not challenge without
challenging the rule of law itself. In other words, when European law is applied
in national courts, European judicial legislation is immunized against political
challenges by its parasitic relationship with the legitimacy of the national
legal order (Burley and Mattli 1993; Dehousse 1998; Alter 2001).
It needs to be
emphasized, however, that the substantive range of policies that can be adopted
in the supranational-centralized mode is in fact quite limited. The criteria of
monetary policy to be applied by the European Central Bank are tightly
circumscribed by Treaty provisions (Arts. 105-111 TEC), and the opportunities of
the Court to engage in Treaty-based judicial legislation are with few exceptions
(one of which is the injunction against gender discrimination in employment
relations - Art. 141 ex 119 TEC) restricted to the fields of negative
integration, mobility and market liberalization (Scharpf 1999: chapter 2). This
is not meant to suggest that these powers are unimportant. European rules on
mergers and acquisitions are the strictest in the world, and in contrast to the
anti-trust law of the United States and of other federal nation states, European
competition law also applies to activities in the public sector of member states
and to state aids that could distort market competition. These powers interfere
with the industrial policies of member states and with their service-public
functions- which in some countries, such as France, have very high political
salience (Lyon-Caen and Champeil-Desplats 2001) - and they also are threatening
national welfare state regimes (Scharpf 2002). Nevertheless, as of now it is
still possible to argue that the judicial interpretation of EU Treaty law has
primarily served to remove barriers to trade and distortions of economic
competition - i.e., purposes that had and still have the general support of all
2.2.2The Joint-Decision Mode
Beyond negative integration
and competition law there is, in any case, little that the Commission and the
Court could do on their own. Instead, the dominant mode in which
"First-Pillar" competencies are exercised is what I have described as
the joint-decision mode, and what the Commission (2001b) calls "the
Community Method" (Wallace and Wallace 2000). Here, the Commission has a
monopoly of agenda-setting power, and it has the freedom to select the
individuals, groups and organizations which it will hear and hence the inputs to
which it will pay attention. However, any legislative initiatives of the
Commission must be adopted by the Council of Ministers, voting either by
qualified majority or by unanimity. In preparing its common position, the
Council relies on COREPER and the Council Secretariat to integrate the positions
of national ministries and the work of large numbers of preparatory committees
staffed by national civil servants and experts. In an increasing number of
policy areas, moreover, the European Parliament has become a co-equal partner of
the Council whose amendments are also developed in specialized committees which
allow access to a range of interests that may not find the same attention in the
Commission and the Council (Pollack 1997). But that is not yet the end of it. If
the directives so adopted need further specifications before they can be
implemented, the task is delegated to the Commission which, however, is
generally required to consult, or even obtain the agreement of,
"Comitology" committees in which, again, national civil servants and
experts must work out broadly acceptable solutions (Joerges and Vos 1999).
Finally, European directives must be transposed into national law by national
governments and parliaments, and they must be implemented by national and
subnational administrative agencies, all of which may have their own preferences
and constituency interests in mind when exercising discretion.
In assessing the
effectiveness and legitimacy of policies adopted in the joint-decision mode,
several observations are in point: First, European policy processes in the
joint-decision mode are highly specialized - choices in agriculture policy are
determined by the Directorate General for Agriculture, by the Council of
Ministers of Agriculture, and by a specialized committee of the European
Parliament - and the same is true of trade policy, environmental policy and all
other policy areas in the First Pillar. At all levels, there seems to be less
substantive involvement of actors representing the concerns of other policy
areas or government-wide perspectives than is true in national governments and
parliaments with stronger mechanisms for cross-sectional policy coordination and
political integration. As a consequence, European policies may sometimes pursue
more ambitious sectoral goals - for instance in the fields of work safety and
environmental policy (Eichener 2000) - than one might expect on the basis of a
more comprehensive analysis of the national interests affected.
these sectoral confines, the multi-stage policy process combines the very
different access opportunities provided by the Commission, by national
government ministries and by committees of the European Parliament to allow
inputs from a wide range of interests organized at European and national levels
and from experts with diverse national and disciplinary backgrounds. Taken
together with the potential roles of the Committee of the Regions and the
Economic and Social Committee, it seems fair to say, therefore, that European
policy processes in the joint-decision mode provide opportunities to be heard
for a range of interests that is at least as wide, and probably wider, than is
true in any national political system (Mazey and Richardson 1993).
structural terms, the joint-decision process must be described as negotiations
in an extreme form of multiple-veto constellation (Tsebelis 2002). Hence if the
style of interaction were that of distributive ("bloody-minded")
bargaining, one should expect a low capacity for effective action and frequent
blockages (Scharpf 1997: chapter 6). From empirical research, however, one gains
the impression that interactions are generally characterized by a considerable
commitment of negotiators to search for solutions that are acceptable to all
parties involved (Joerges and Neyer 1997; Hayes-Renshaw and Wallace 1997; Lewis
2000; Wallace and Wallace 2000). Nevertheless, the alleged socialization into a
cooperative interaction orientation and "deliberative
supranationalism" can only affect "agents" who actually
participate in the Brussels rounds, but not their respective
"principals" back home. Hence it seems plausible that the success of
negotiations depends to a large extent on the willingness of participants to
recognize the political constraints under which all of them must work, and to
accept that everybody needs to achieve some "victories" that would
help to ensure acceptance at home - which is facilitated by the fact that
political salience tends to be highly selective, and that many items on the
European agenda will remain below the threshold of attention in national
As a consequence, it seems that negotiators have converged on conflict
minimizing practices  which might be expressed as an informal rule according to
which national representatives are expected to concede points that are of minor
political importance at home, but are allowed to hold out on provisions whose
inclusion or omission would plausibly provoke highly salient opposition in
domestic politics (Lewis 1998). Such a rule would explain not only the fact that
European regulations are often agreed upon even though they require considerable
(but politically non-salient) changes of legislation and administrative routines
of member states (Falkner 2000; Falkner et al. 2002; Héritier et al. 2001), but
it would also account for the overly complex and detailed character of European
regulations - which the Commission (2001a) explains as the cumulative result of
specific demands from member states.
Taken together, these characteristics ensure that the policies which the EU is in fact able to adopt
in the joint-decision mode will generally not violate interests that have high
political salience in the member states. For that reason, the need for
legitimation is relatively low. By the same token, however, the EU is unable to
act when salient interests are in direct conflict, and its problem-solving
capacity is further constrained by the design weaknesses of consensus policies
avoiding critical issues and reflecting cumulative and perhaps unrelated
2.2.3The Intergovernmental Mode
From the perspective of
national governments, however, the joint-decision mode nevertheless has its
risks. The informal consensus rule in the Council is practiced in the shadow of
a qualified-majority vote, and the strong roles of the Commission and of the
European Parliament may force governments to accept compromises that are quite
far from their ideal points and not much more attractive than the status quo.
Moreover, since voters are not obliged to be fair, governments of member states
cannot avoid political accountability for the EU policies they have to
implement, regardless of whether they voted for or against them in the Council.
Hence they must see any transfer of competencies to the First Pillar, and any
move from unanimity to qualified-majority voting within the First Pillar, as a
calculated risk. They must weigh the benefits of Europeanization (or the risks
of having to cope nationally with problems requiring Europe-wide solutions)
against the risks of having to implement European policies that may violate
interests and preferences that have very high political salience nationally.
the fields of economic integration, the latter risks were generally seen to be
outweighed by the benefits of the Internal Market, and for most member states
that also applied to the Monetary Union. By contrast, the salience of
immigration, internal security,  social policy, industrial relations, education,
or taxation was generally considered to be so high in national politics that a
general (idealistic) interest in European integration as such was not enough to
overcome the defense of national autonomy by risk-averse member governments.
When that is so, risk-averse national governments will only agree on
Europeanization on the condition that they must remain in control - which at
minimum implies that there will be no qualified-majority votes in the Council.
If apprehensions are even stronger, governments will also want to avoid being
put on the spot by the Commission's monopoly of legislative initiatives or
having to negotiate over compromises with the European Parliament, and they will
seek to disable the supranational interpretative and enforcement powers of the
Commission and the Court.
The obvious weakness of the intergovernmental mode is
not only that European solutions can be held up by a single government demanding
special favors - side payments and package deals could take care of that - but
that European policy is paralyzed by politically salient conflicts of interest
or preference among its member states. Unfortunately, this is most likely to be
the case in those policy areas where the capacity of member states to deal
autonomously with politically salient problems and challenges is most severely
constrained by the consequences of economic integration and increases in
transnational mobility. Among these are issues of external and internal security
that are presently contained in the second and third "pillars" of the
Treaty of European Union, but similar conflicts prevent effective European
action in the fields of employment and social policy, fiscal policy, and
taxation as well.
When common European solutions are considered less urgent, the
preferred alternative to the intergovernmental mode has become the "Open
Method of Coordination" which was formally introduced by the Lisbon Summit
in the field of social policy, but which had already been applied avant la
lettre by the Maastricht and Amsterdam Treaties to the coordination of national
fiscal (Arts. 98-105 TEC) and employment policies (Arts. 125 - 130 TEC). In all
these cases, there is no attempt to adopt common solutions at the European
level. Effective policy choices and their implementation remain a national
responsibility - which also implies that their legitimacy rests entirely on
national foundations. What the Open Method could achieve under these
circumstances is to focus the attention of national policy makers and publics on
problems and goals defined as a "common concern", to define common
indicators of success and failure at the level of policy outcomes (Atkinson
2002), and to provide opportunities for "policy learning" from the
"best-practice" examples of other member states (Visser and Hemerijck
2001). Procedures may be more or less elaborated, but generally involve common
guidelines, national action plans and reports, peer review based on analyses by
the Commission, and Council recommendations.
If national governments are
responsive, the process can help them to identify and adopt better national
solutions (de la Porte and Pochet 2002), and peer pressure may also discourage
the use of beggar-my-neighbor strategies which, if everybody resorted to them,
would leave all member states worse off. Yet since member governments remain
free to disregard recommendations and may also remain insensitive to blaming and
shaming discourses, problem solving effectiveness of the Open Method of
Coordination cannot be ensured in the face of divergent national interests.
Moreover, and more important here, since all solutions remain national, they
will also be constrained by the constitutional asymmetry which is created by the
"supremacy" of all European law (including its judicial
interpretations) over all national law (Alter 2001). There is no way, therefore,
in which the Open Method of coordination could relax the legal constraints
imposed on market-constraining and market-correcting national service-public
functions and social policies by the acquis of European competition law and its
future extensions (Scharpf 2002).
2.3Problem-Solving Deficits and Legitimacy Crises
review of European governing modes leads to the conclusion that the range of
policies which the EU does in fact adopt does not give rise to major legitimacy
problems. The policies of negative integration that can be imposed in the
supranational-centralized mode are either supported by broad consensus or
covered by the blanket legitimacy of (national) judicial systems and a general
belief in the rule of law. For policies of positive integration, the dominant
mode of joint-decision making reduces the need for legitimation by avoiding
legislation that would significantly violate politically salient interests in
member states. In the intergovernmental mode, finally, European policies can
only be adopted if all national governments assume political responsibility for
them, whereas the Open Method of Coordination avoids legitimacy problems at the
European level altogether by leaving all effective policy choices to the
governments of individual member states.
It also follows from this analysis that
the problem-solving capacity of the European Union is severely constrained by
the institutionalized need to avoid policy choices that would give rise to
politically salient conflicts. By itself, that state of affairs would not raise
significant legitimacy issues. National governments with comprehensive
competencies, it is true, are held politically accountable for outcomes or even
states of affairs that the voters strongly dislike, regardless of whether these
were brought about by political action or by inaction. The EU, by contrast, is
known to be in charge of limited competencies and, what is more important here,
it lacks a "government" in the sense of a politically visible center
of power that could be held politically accountable for unsatisfactory states of
affairs. Hence legitimacy issues at the European level can only refer to
specific policies, rather than to general problems like unemployment or the rise
of crime rates - and if care is taken to avoid deeply controversial policy
choices, all should be well.
Unfortunately, however, that is only half the
story. As I have suggested above and argued at greater length elsewhere (Scharpf
1999, 2002), the member states of the Union are increasingly confronting
challenges with which they can no longer cope at the national level. In part
these are due to international developments beyond their control. This is
largely true of the new foreign policy, defense and security challenges arising
from the end of the Cold-War stalemate and the changing priorities of the United
States. In other fields, however, EU member states are confronting the
second-order consequences of the very success of European economic integration -
which greatly reduced their autonomous problem-solving capabilities by exposing
them to new economic challenges while imposing increasingly tight legal
constraints on their choice of potential responses.
In a nutshell, the success
of the Internal-Market program and of Monetary Union has dramatically increased
not only the intensity of transnational competition in product markets, but also
the potential mobility of finance and investment capital, of firms' headquarter
functions and of production locations. As a consequence, member states are
engaged in tax competition for mobile bases of revenue and in regulatory
competition for mobile investments - both of which create pressures to reduce
tax rates and to avoid regulations that could have a negative effect on
production costs and the post-tax rate of return on capital. In short, the
economic and fiscal opportunity costs of market-correcting redistributive and
regulatory policies at the national level have increased considerably.
same time, the Common Market has eliminated protective tariffs and quantitative
restrictions on imports, the Internal Market has eliminated non-tariff barriers,
imposed tight controls on state subsidies and liberalized trade in services, and
the Monetary Union not only eliminated devaluation as a policy instrument that
could correct for a loss of international competitiveness, but it also imposes
uniform interest rates that do not fit national economies with above-average and
below-average rates of growth and inflation, and it constrains the fiscal-policy
responses of member governments by the deficit rules of the Stability Pact.
matters more is the constitutional asymmetry created by these legal constraints.
At the national level, market-making and market-correcting policies had the same
constitutional status, so that potential conflicts had to be politically
resolved by majority or by compromises. Under the legal doctrines of direct
effect and supremacy, however, any rule of European law takes precedence over
any rule of national law. Since European policy has for decades concentrated on
economic integration while market-correcting policies have mainly remained
national, this has created a legal order in which European liberalization and
competition rules have unconditional priority over national social-protection
rules. This asymmetry became a major problem after the Internal Market program
had authorized the Commission and the Court to seriously pursue the goal of
Unconstrained by the countervailing logic of
market-constraining European rules, the Commission has vigorously extended the
reach of liberalization and competition law into fields which, in the mixed
economy of member states, had been exempted from market competition in the form
of public services, subsidized non-profit organizations, or highly regulated
private monopolies or cartels. In some areas (e.g., telecommunications), the
outcomes of liberalization, deregulation and privatization have been very
favorable for consumers, while in others (e.g., banking or railroads) they are
mixed or negative. These are serious problems in some countries (Lyon-Caen and
Champeil-Desplats 2001). But they will pale in comparison to the political
crises that will arise if the Commission and the Court should be allowed to
continue in applying European competition law to the core areas of welfare state
services which traditionally had been farthest removed from the market.
is, the application of European law could be constrained only by countervailing
rules of European law, and existing European law could be reformed only under
the same rules that governed its adoption. In an ideal-type majoritarian
democracy, decision rules do not discriminate between actors seeking to change
an existing policy and others defending its maintenance.  However, as
constitutional checks and balances and the number of veto players increase,
symmetry is lost to the advantage of the defenders of status-quo policies
(Tsebelis 2002). In the European Union, this asymmetry is in fact more extreme
than in any national constitutional democracy. Policies adopted in the
supranational-centralized mode can be changed only by unanimous Treaty
amendments and parliamentary ratification in all member states, but obstacles to
change are nearly as high for policies adopted in the intergovernmental or in
the joint-decision modes. As a consequence, policies will be maintained and need
to be enforced even though there would be no chance of having them adopted now
under the original decision rules, or even by a simple plurality vote. 
words, nation states have become very much dependent on European solutions in
order to cope with the "spillover" problems that are caused by
successful European integration. But under the consensual decision rules which
are needed to ensure the legitimacy and political acceptance of European policy
choices in the intergovernmental and joint-policy modes of governing, not only
new policy initiatives but also the reform of status-quo policies is easily
blocked by conflicts of interest or preferences among EU member states. The
likely result is a growing problem-solving gap in policy areas where the EU
generates problems and constrains solutions at national levels while effective
solutions at the European level are blocked by political conflicts among member
In the field of external security, such conflicts are likely to
arise from the fundamentally different collective memories which EU member
states associate with the outcomes of both, the Second World War and of the Cold
War, and from differences in the emotional ties to (or the dependence on) the
United States. By contrast, conflicts over the European harmonization of
welfare-state policies, that would protect "Social Europe" against the
impacts of economic integration and liberalization, arise from basic differences
in national economic conditions, institutions, policy legacies and normative
preferences. They amount to mutually incompatible, and politically highly
salient differences in the levels of welfare spending, in the structures of
welfare benefits, and in the types of welfare finance among
"Scandinavian", "Anglo-Saxon" and "Continental"
families of welfare states (Esping-Andersen 1990; Scharpf and Schmidt 2000).
If nothing could be done, the resulting problem-solving gap could
indeed undermine the output legitimacy of national political systems as well as
the continuing acceptance of European integration. Hence one ought to think
about institutional reforms which will either increase the legitimate European
capacity for effective action in the face of conflicting national interests or
preferences, or which will restore or protect national problem-solving
capabilities in fields where they are presently constrained by European
integration. In other words, integration would either have to take a large step
forward, or a step back - and as I will try to show, there are reasons to think
that it ought to take steps in both directions at the same time.
3.1Effectiveness through Democratic Accountability?
its White Paper on European Governance (2001a, 2001b), the Commission suggested
that the capacity for legitimate and effective European action could be improved
without any changes in the Treaties simply through a "revitalization of the
Community Method" - by which it essentially meant a strengthening of its
own role in the legislative process (Scharpf 2001b). In order to increase the
Union's capacity to act, the Council and the European Parliament should reduce
their own involvement in legislation to the formulation of "essential
principles", and they should leave the specification of "details"
to the Commission which, moreover, should not be required to go through
cumbersome Comitology procedures in doing so. Normatively, so it is suggested,
these procedures would be justified by the fact that the European Union has
moved from a "diplomatic" to a "democratic" stage, and by
the implicit assumption that the Commission itself is somehow also a beneficiary
of democratic legitimacy.
There has been a good deal of discussion of the White
Paper (Joerges, Mény and Weiler 2001) in which, it is fair to say, the
Commission's claim that the changes proposed would increase the Union's capacity
for effective action has not been seriously challenged. It seems indeed
plausible that legislative processes would be less cumbersome if Council and
Parliament would no longer be concerned with "detail", and one might
also expect a greater capacity for responding to changed circumstances if
detailed regulations could be formulated and changed unilaterally by the
Commission. For most critics, however, speculation about these advantages seemed
"academic" since there was no reason to expect that Council and
Parliament would agree to such a broad delegation of legislative competencies.
Moreover, the Commission's bold claim to democratic legitimacy was seen to be
both unsupported by the present reality of political processes in the European
Union and unsustainable in normative theory.
In normative debates, it is
generally assumed that the Commission's present claim is incompatible with its
simultaneous claim to the role of a politically neutral promoter of the European
common interest. In order to attain the democratic legitimacy that could justify
an expansion of its policy-making functions, it would have to abandon its
present status of political independence. In principle, so it is thought, the
Commission would have to be transformed into a politically accountable European
government of either the parliamentary or the presidential variant. In the first
case, the President of the Commission would be elected and voted out of office
by a majority of the European Parliament; in the second case, the President
would be directly elected by a majority of voters in the member states. In
either case, moreover, individual Commissioners would be nominated by, and
subject to instructions of, the politically accountable President.
options, only the first is presently getting serious attention in the European
Convention. In their most consistent versions (see, e.g., Gloser and Roth 2002),
such proposals envisage the European Union as a parliamentary democracy where
the government is created by the majority (coalition) of disciplined
parliamentary parties that prevailed in Europe-wide elections on the strength of
their candidates for the Presidency and their programmatic platforms. It goes
almost without saying that in these proposals the EP would gain full legislative
and budgetary powers, that the status of the Council of Ministers would be
reduced to that of a second legislative chamber, and that legislative decisions
would be taken by majority vote in both chambers.  If such proposals could be
realized, the number of veto positions would indeed be reduced and the European
capacity for effective action in the face of conflicting interests would
increase. The problem, however, is legitimacy.
By constructing blueprints for a
majoritarian European constitution, the enthusiasts of European democracy tend
to ignore the preconditions of legitimate majority rule - some of which cannot
simply be created through constitutional engineering (Grimm 1995; Howe 1995). As
I said above, in order to be considered democratic in the input-oriented sense,
the Union should, at minimum, have a chain of ex post political accountability
through which voters could effectively sanction European policy choices as well
as conditions facilitating ex ante discussions of highly salient European policy
choices and the formation of a Europe-wide public opinion. As of now, neither of
these conditions are fulfilled: As long as European elections are still
perceived as "second-order national elections", the European
Parliament does not constitute a strong link connecting European policies to the
electorate in a chain of political accountability; and in the absence of
Europe-wide media and Europe-wide party competition, policy discourses and
public opinion remain nationally fragmented.
While it is reasonable to hope that
the constitutional reforms presently discussed would, in time, help to reduce
both of these deficiencies, that appears more questionable with regard to a
third, and more basic, precondition of legitimate majority rule - the commitment
to a strong collective identity  and the belief in a "common good" that
may override even highly salient collective interests and preferences of
national constituencies.  If that basic belief is not shared, there is no
normative reason why minorities should accept the legitimacy of policies adopted
by a potentially hostile majority - think of Northern Ireland, the Kosovo or
It is true that collective identity is also not given once and for all,
but may develop over time through communication and salient interactions
(Deutsch 1953), and that its evolution may be furthered through the existence of
a common institutional framework. Thus it is not wrong to hope that debates
about a European constitution and its ultimate adoption may themselves
contribute to the strengthening of a European collective identity. But neither
should one forget that in the absence of dictatorial repression even seemingly
well established multi-ethnic polities (e.g., the Soviet Union, Yugoslavia and
Czechoslovakia) did disintegrate as a consequence of conflicts which could not
be legitimately settled by majority rule (Heraclides 1990). By contrast, the
"consociational" constitutions of successful multi-ethnic polities
like Switzerland or Belgium have established so many veto positions that the
salient interests of significant minorities are unlikely to be ever overruled
(McRay 1974; Lijphart 1999).
Considering the ethnic, linguistic, cultural, and
institutional diversity within the present European Union stretching from
Ireland to Greece and from Finland to Portugal (let alone within the Union as it
will be after Eastern enlargement), it seems clear to me that any workable
European constitution must protect the political salient interests and
preferences of its national constituencies at least as well as these
consociational democracies are protecting their ethnic, linguistic or religious
minorities. In the unlikely event that this insight could be ignored by the
European Convention, it seems safe to predict that it will be remembered by the
next Intergovernmental Conference. In short, if the EU should ever come to
resemble one of the national models of democratic constitutionalism, its
institutions would have to provide for veto positions and procedural checks and
balances that must amount to an extreme variant of "consociationalism"
(M. Schmidt 2000).
Since interests and preferences are still primarily
articulated and aggregated in national political systems, it also follows that
the role of national governments in EU decision processes cannot be greatly
reduced below their present status. That does not rule out moves from the
intergovernmental mode to the joint-decision mode, and from unanimous to
qualified-majority decisions in the Council - but it means that the quorum of
QMV decisions cannot be much reduced, and that the basic ground rules of
consensual decision making must be maintained. If that is accepted, however, it
also follows that EU legislation would still not be able to override politically
salient national interests and preferences. Hence, neither the capacity for
effective action in the face of conflicting interests, nor the capacity for
reforming standing policies that have become obsolete, could be greatly
increased by constitutional changes that would presently be politically feasible
and normatively acceptable.
That is not meant to deny that present procedures
and the definition of European competencies could be usefully systematized and
simplified, and thus made to appear more transparent. It also would not preclude
moves toward versions of parliamentary or electoral accountability of the
President of the Commission which would help to increase the political salience
of European elections (Hix 2002). Yet one also should not expect too much from
such reforms. In a multiple-veto system, transparency must always remain an
elusive goal as policies will ultimately emerge from negotiations and
compromises for which none of the participants could or should be held
individually accountable. Moreover, if reforms should in fact succeed in
politicizing the Presidency of the Commission and in increasing the political
salience of EP elections, voters might be led to expect that the winners should
then be able to promote and adopt policies ensuring effective solutions to
urgent problems on the European agenda. If these initiatives then get bogged
down in multiple-veto bargaining, and if more intense partisan conflict should
in fact exacerbate the difficulties of achieving inter-institutional policy
consensus (Dehousse 1995), then the result might well be more political
frustration and alienation, rather than greater democratic legitimacy.
3.2Effectiveness and Accountability through
So where does that leave us? If input and output legitimacy is
to be maintained in constellations where problem-solving effectiveness requires
European solutions while politically salient policy conflicts cannot be settled
by majority vote, "something's gotta give". What ought to give, in my
view, is the notion that European policy should necessarily generate uniform
rules applied equally in all member states.
This notion has its origin in the
early history of European integration when, after the failure of the European
Defense Community, the vision of a "United States of Europe" could
only be pursued through the second-best strategy of economic and legal
integration - with the implication that the dual commitment to uniform European
law for a maximally integrated European market became the hallmark of "good
Europeans". As a consequence, decades of discussion about forms of
differentiated integration - variously promoted under such labels as
"variable geometry", "different speeds", "concentric
circles" and the like (Ehlermann 1984; Giering 1997; De Búrca and Scott
2000) - have not produced more than the extremely restrictive and so far
unpracticed provisions on "Enhanced Cooperation" that were introduced
in Amsterdam and slightly modified in the Nice Treaty (Title VII TEU).
is realized, however, that the insistence on uniformity prevents effective
European responses to challenges with which member states are no longer able to
cope, and that this may undermine political legitimacy at both European and
national levels, the unquestioned moral commitment to uniformity should give way
to more pragmatically useful criteria based on analyses of the underlying
problem constellations.  If consensus on European action could be achieved only
among a subset of member states, one would thus need to ask essentially two
Would common action by a group of member states have negative
external effects on other member states that are unable or unwilling to join the
Conversely, would the existence of member states that will not join
the group have negative external effects on the effectiveness of action by the
If neither of these questions could be answered in the affirmative, there
is no compelling  pragmatic reason to rule out either European action in the form
of "Enhanced Cooperation", or the "opt-out" of member states
whose interests or preferences would be violated by a policy favored by the
majority. In a highly interdependent world, it is true, it will rarely be
possible to demonstrate the total absence of external effects in one direction
or the other. What should matter, therefore, is the relative weight of the
interests and the salience of the political preferences that are at stake on
either side. This is, at bottom, a political judgment which, on the basis of an
examination by the Commission, ought to be made by the Council. To discourage
hold-outs over side payments, moreover, qualified-majority votes ought to
suffice when permission is requested for enhanced cooperation or opt-outs.
actual practice, such solutions are of course not unknown in the European Union,
even though they were not adopted under the restrictive procedural rules
governing "Enhanced Cooperation". The best example is the European
Monetary Union which does not force Britain, Sweden or Denmark to join, even
though these countries would meet the criteria of membership, and even though
some negative externalities could be expected if the outsiders would try to
increase their export competitiveness by devaluating their currencies against
the Euro. Similarly, even after the Schengen agreement on the abolition of
internal border controls was incorporated into the European Union Treaty at
Amsterdam, not all member states of the Union are included. Moreover, under
political duress Britain, Denmark or Ireland were allowed individual opt-outs
from EU policies which they found particularly unpalatable, and accession
countries were and are often granted derogation from certain requirements of the
acquis during a transition period. It should be noted, however, these are
usually understood as ad-hoc expedients, considered as perhaps inevitable but
basically illegitimate exceptions from the commitment to European uniform law
applied equally throughout the Union. Unless they are speedily corrected, so it
is feared, the Union will be on the slippery slope toward increasing
By contrast, the arguments which I have presented
here suggest that one should treat these "exceptions" as precedents
that illustrate the rationale of generally useful options of
"differentiated integration". If it is accepted that uniformity for
its own sake cannot be the guiding maxim of European policy, these precedents
ought to be examined in order to search for rules and procedures which would
enable the Union (1) to effectively realize purposes shared by all of its member
constituencies; (2) to assist individual, and groups of, member states in coping
with problems which can no longer be resolved at national and subnational
levels; and (3) to prevent individual, or groups of, member states from adopting
policies that would impose undue burdens on other member states.
maxims, the first and the third may appear unproblematic, since they correspond
in principle to the present dualism of "positive" and "negative
integration" in European policy (Scharpf 1999: chapter 2). Yet both of them
will be affected by acceptance of the second maxim - which has enabling as well
as constraining consequences. It would enable positive integration among groups
of member states even in the absence of generally shared purposes. Conversely,
it would also constrain the application of rules of negative integration in
situations where policies of individual, or groups of, member states have high
salience for national constituencies whereas potential negative impacts on other
member states are weak.
If these maxims are accepted, the present rules
governing "Enhanced Cooperation" would have to be liberalized. Then
the "European Security and Defense Community" - a joint proposal to
the Convention of the French and German foreign ministers (FAZ 2002) - would no
longer be explicitly excluded under the restrictive conditions maintained in the
Treaty of Nice (Art. 27b TEU). Instead, the constitutional prohibition would be
replaced by the political judgment of a qualified majority in the Council. It
would have to weigh the merits of pooling the military resources and
coordinating security strategies among a cohesive group of countries (say,
France and its Continental partners) as against the disadvantages this might
impose on others (say, the UK with its trans-Atlantic priorities). While a
positive outcome would by no means be ensured, the creation of European
capabilities would at least no longer depend on universal participation.
same token, and perhaps less controversially, countries with similar
welfare-state institutions and policy legacies (say, Denmark, Sweden and
Finland) could harmonize their social-policy reforms even if the group would
include less than the minimum of eight member states required for Enhanced
Cooperation by Article 43 (g) of the Nice Treaty - and the same would be
possible for the groups of Continental or Southern-European welfare states and,
perhaps, for the accession countries of Central and Eastern Europe. Since these
harmonization directives would have the status of European law, they would have
the effect of correcting the constitutional asymmetry between market-creating
European law and market-correcting national institutions and policies.  Thus the
balance between economic liberties and social-protection goals would cease to be
an issue decided by the Commission and the Court through application of the
legal syllogisms of undistorted competition, and would again become a matter of
political conflict and compromise - within the group of countries attempting
Enhanced Cooperation as well as between such groups and the Council as a whole.
In the same spirit, the constitutional treaty ought to provide for a generalized
possibility of "constructive abstention" which would allow individual
member states to "opt out" of a common policy which otherwise could be
blocked by their negative vote.  This was the solution that allowed the creation
of the European Monetary Union or the adoption of the Social Protocol (Falkner
1998: chapter 3), and it might also facilitate, say, the European harmonization
of taxes on capital interest, of the rules for hostile takeovers or European
action in some areas of immigration and asylum policy. If given the choice,
dissenting governments might often prefer to allow the majority to go ahead,
rather than having to choose between obstruction and submission. In view of
free-rider temptations (or the "leak in the bucket" problem), however,
it would still be necessary that opt-outs be allowed by a majority in the
Council  - which would then have to decide whether, in its view, uniformity was
more important than the risk of having no European rule at all.
If both of these changes, liberalized rules
for Enhanced Cooperation and the possibility of opt-outs, were included in the
new constitutional treaty, the Union's capacity for effective action would
increase, and so would its capacity for reforming existing legislation that no
longer fits the interests or preferences of a majority of member governments.
Equally important, the higher problem-solving capacity would not have to be
bought at the expense of democratic legitimacy - which would be so if the
politically salient preferences of national constituencies were to be overridden
by majoritarian decisions at the European level. It is also clear, however, that
the price to be paid would be a greater variance in geographical coverage and
hence the increasing patchwork character of European law.
That price must seem
high for those who still hold on to the original goal of a politically
integrated "United States of Europe", and who defend the perfection of
economic integration and the unity of European law as the most significant
achievements of decades of struggles toward that finalité. What is not seen
from this perspective, however, is that in the meantime these achievements have
had side effects which prevent further progress toward the goal itself.
European integration began among the Original Six in the 1950s, their leaders
did indeed see economic integration not as an end in itself, but as a vehicle
that would carry them toward the goal of political integration. Given the basic
similarities of welfare-state institutions and (primarily Christian-Democratic)
views of the role of the state in society, that view was not obviously
unrealistic, even though the institutions which were created then, and whose
basic characteristics are still shaping the present EU governing modes, made
political action dependent on very high levels of intergovernmental agreement.
It became much less realistic, however, already with the first enlargement
which, with the accession of Denmark, the UK and Ireland, added three new member
states with extremely heterogeneous economic conditions, welfare-state
institutions and political orientations, and heterogeneity increased further
with later enlargements.
Under these conditions, high consensus requirements and
the insistence on uniformity had the effect of drastically limiting political
policy choices to issues on which member governments could agree. Since the
benefits of joining the larger European market was a major motive for, and the
acquis of existing market integration a rigid condition of, later accessions,
agreement on that score was least problematic, and once it was given, the
supranational powers of the Commission and the Court would ensure its
effectiveness. Beyond that, however, heterogeneity matters and will prevent
effective European action in the face of politically salient conflicts among
member-state governments or their constituencies. As a result, we have an
increasing asymmetry between the increasing legal perfection of economic
integration, promoted by the supranational powers of the Commission and the
Court, and the political impotence of the Union in other policy areas - but
particularly so in the domain of market-correcting social policies. As a
consequence, we also have an increasing asymmetry between the European extension
of economic liberties and increasing economic and legal constraints on national
I have tried to show that one should not expect this
asymmetry to be corrected by the creation of majoritarian European governing
modes. For the time being, these would lack democratic legitimacy. As a
consequence, European integration, after Eastern enlargement even more so than
now, seems bound to follow a scenario in which high levels of economic
integration will entail the progressive disintegration of national
social-protection systems, and in which the Union will remain unable to assume
the governing functions which its member states can no longer perform
effectively. If this scenario is to be avoided, the Union must find ways to
complement economic integration with modes of political integration that can
accommodate a greater degree of national heterogeneity than is presently thought
acceptable. I have also tried to show that, in principle, controlled forms of
"Enhanced Cooperation" and "constructive abstention" could
increase the capacity for political action in face of diverging national
interests and preferences.
Compared to the hopes for democratizing the European
polity that have become associated with the current debates over the future EU
constitution, these proposals must appear conservative and defensive. They are
indeed derived from the conviction that the "peoples" of the European
Union are not now, and will not soon become, an integrated nation, and that
therefore the Union cannot be constructed as an enlarged nation state committed
to the unitary ethos of a république unie et indivisible (Weiler 1995, 2000).
At the same time, however, these are proposals that would again widen the domain
of political choices - as distinguished from economic compulsion and
bureaucratic-judicial legislation - at national and European levels. Since
democratic accountability can take effect only where there is political choice,
the democratic legitimacy of the multi-level European polity would indeed be
strengthened by the acceptance of differentiated integration.
Heidrun, 2002: Wozu braucht man Demokratie? Die postnationale Herausforderung
der Demokratietheorie. Opladen: Leske + Budrich.
Alter, Karen J.,
2001: Establishing the Supremacy of European Law. The Making of an International
Rule of Law in Europe. Oxford: Oxford University Press.
2002: Social Inclusion and the European Union. In: Journal of Common Market
Studies 40 (4), 625-644.
Alexander M., 1962: The Least Dangerous Branch. The Supreme Court at the Bar of
Politics. Indianapolis: Bobbs-Merrill.
R. Sinnot and Peter Svensson, 1998: People and Parliament in the European Union.
Participation, Democracy and Legitimacy. Oxford: Clarendon Press.
Anne-Marie and Walter Mattli, 1993: Europe Before the Court. A Political Theory
of Legal Integration. In: International Organization 47, 41-76.
2002: Is There Really a "Democratic Deficit"? In: EuropEos,
Institutional Reforms in the European Union. Memorandum for the Convention.
Rome: EuropEos, 19-30. <www.europeos.it>
2001a: European Governance. A White Paper. COM (2001) 428 final. Brussels:
Commission of the European Communities.
2001b: European Governance. Reviewing the Community Method. COM(2001) 727 final.
Brussels: Commission of the European Communities.
Dahl, Robert A.,
1967: Pluralist Democracy in the United States. Conflict and Consent. Chicago:
Gráinne and Joanne Scott (eds.), 2000: Constitutional Change in the EU. From
Uniformity to Flexibility? Oxford: Hart Publishing.
De la Porte,
Caroline and Philippe Pochet (eds.), 2002: Building Social Europe through the
Open Method of Co-ordination. Brussels: P.I.E. - Peter Lang.
Renaud, 1995: Constitutional Reform in the European Community. Are there
Alternatives to the Majority Avenue? In: West European Politics 18, 118-136.
Renaud, 1998: The European Court of Justice. The Politics of Judicial
Integration. London: Macmillan.
W., 1953: Nationalism and Social Communication. New York: Wiley.
and Michael Mann, 2002: Inside Europe's Powerhouse. In: Financial Times, April
10, 2002, 11.
1990: Discoursive Democracy. Politics, Policy and Political Science. Cambridge:
Cambridge University Press.
Dunn, Delmer D.,
1999: Mixing Elected and Nonelected Officials in Democratic Policy Making.
Fundamentals of Accountability and Responsibility. In: Adam Przeworsky, Susan
Stokes and Bernard Manin (eds.), Democracy, Accountability, and Representation.
Cambridge: Cambridge University Press, 297-326.
Claus-Dieter, 1984: How Flexible is Community Law? An Unusual Approach to the
Concept of 'Two Speeds". In: Michigan Law Review 82, 1274-1293.
Volker, 2000: Das Entscheidungssystem der Europäischen Union. Institutionelle
Analyse und demokratietheoretische Bewertung. Opladen: Leske + Budrich.
1998: Introduction. In: Jon Elster (ed.), Deliberative Democracy. Cambridge:
Cambridge University Press, 1-18.
Gøsta, 1990: The Three Worlds of Welfare Capitalism. Princeton: Princeton
1998: EU Social Policy in the 1990s. Towards a Corporatist Policy Community.
2000: Problemlösungsfähigkeit im europäischen Mehrebenensystem. Die soziale
Dimension. In: Grande, Edgar and Markus Jachtenfuchs (eds.), Wie
problemlösungsfähig ist die EU? Regieren im europäischen Mehrebenensystem.
Baden-Baden: Nomos, 283-311.
Miriam Hartlapp, Simone Leiber and Oliver Treib, 2000: Transforming Social
Policy in Europe? The EC's Parental Leave Directive and Misfit in 15 Member
States. MPIfG Working Paper 02/11. Cologne: Max Planck Institute for the Study
of Societies. <www.mpifg.de/pu/workpap/wp02-11/wp02-11.html>
Berlin und Paris für Sicherheits- und Verteidigungsunion. In: Frankfurter
Allgemeine Zeitung, 26.11.2002, 7.
2003: Parties, Power and Progressivity. On the Political Economy of Income
Taxation in Open States. Doctoral Dissertation. Cologne: Max Planck Institute
for the Study of Societies.
Geoffrey, 1992: International Cooperation and Institutional Choice. The European
Community's Internal Market. In: International Organization 46, 533-560.
Geoffrey, 1995: The Politics of Legal Integration in the European Union. In:
International Organization 49, 171-181.
1997: Vielfalt in Einheit. Die Flexibilisierung der Europäischen Integration.
In: Europa-Institut Zürich (ed.), Die Europäische Union. Wesen, Struktur,
Dynamik. Zürich: Schulthess Polygraphischer Verlag, 191-210.
and Michael Roth, 2002: Berliner Entwurf. Verfassung für die Europäische
Union. Berlin: SPD-Bundestagsfraktion.
1995: Does Europe Need a Constitution? In: European Law Journal 1, 282-302.
Jürgen, 1962: Strukturwandel der Öffentlichkeit. Neuwied: Luchterhand.
Jürgen, 1973: Legitimationsprobleme im Spätkapitalismus. Frankfurt/M.:
Jürgen, 1996: Between Facts and Norms. Contributions to a Discourse Theory of
Law and Democracy. Cambridge: MIT Press.
Fiona and Helen Wallace, 1997: The Council of Ministers. London: Macmillan.
Alexis, 1990: From Autonomy to Secession. Building Down. In: A.J.R. Groom and
Paul Taylor (eds.), Frameworks for International Co-operation. London: Pinter
Adrienne and Susanne K. Schmidt, 2000: After Liberalization. Public-Interest
Services and Employment in the Utilities. In: Fritz W. Scharpf and Vivien A.
Schmidt (eds.), Welfare and Work in the Open Economy. Vol. 2. Diverse Responses
to Common Challenges. Oxford: Oxford University Press, 554-596.
Adrienne, Dieter Kerwer, Christoph Knill, Dirk Lehmkuhl, Michael Teutsch and
Anne-Cécile Douillet, 2001: Differential Europe. The European Union Impact on
National Policymaking. Lanham: Rowman & Littelfield.
2002: Linking National Politics to Europe. London: Foreign Policy Centre.
1995: A Community of Europeans. The Requisite Underpinnings. In: Journal of
Common Market Studies 33, 27-46.
2001: European Defence and the Changing Politics of the European Union. Hanging
Together or Hanging Separately? In: Journal of Common Market Studies 39,
Christian and Ellen Vos (eds.), 1999: EU Committees. Social Regulation, Law and
Politics. Oxford: Hart Publishing.
Christian and Jürgen Neyer, 1997: Transforming Strategic Interaction into
Deliberative Problem Solving. European Comitology in the Foodstuffs Sector. In:
Journal of European Public Policy 4, 609-625.
Christian, Yves Mény and Joseph H.H. Weiler (eds.), 2001: Mountain or Molehill?
A Critical Appraisal of the Commission White Paper on Governance. Jean Monnet
Working Paper No. 6/01.
<www.iue.it/RSC> and <www.JeanMonnetProgram.org>
Alkuin, 2001: Bringing Together or Driving Apart the Union? Towards a Theory of
Differentiated Integration. In: West European Politics 24 (4), 125-151.
2001: Resolution A5-0368/2001 of the European Council, November 23, 2001.
1998: Is the 'Hard Bargaining' Image of the Council Misleading? The Committee of
Permanent Representatives and the Local Elections Directive. In: Journal of
Common Market Studies 36 (4), 479-504.
2000: The Methods of Community in EU Decision-Making and Administrative Rivalry
in the Council's Infrastructure. In: Journal of European Public Policy 7,
1999: Patterns of Democracy. Government Forms and Performance in Thirty-Six
Countries. New Haven: Yale University Press.
Linz, Juan J.,
1997: Democracy, Multinationalism and Federalism. Estudio/Working Paper
1997/103. Madrid: Instituto Juan March de Estudios e Investigaciones, Centro de
Estudios Avanzados en Ciencias Sociales.
Antoine and Véronique Champeil-Desplats (eds.), 2001: Services publics et
droits fondamentaux dans la construction européenne. Paris: Dalloz.
Giandomenico, 1996: Regulating Europe. London: Routledge.
Adam Przeworski and Susan C. Stokes, 1999: Introduction. In: Adam Przeworsky,
Susan Stokes and Bernard Manin (eds.), Democracy, Accountability, and
Representation. Cambridge: Cambridge University Press, 1-26.
Maria, 1999: Accountability and Manipulation. In: Adam Przeworsky, Susan Stokes
and Bernard Manin (eds.), Democracy, Accountability, and Representation.
Cambridge: Cambridge University Press, 154-197.
Mazey, Sonia and
Jeremy Richardson (eds.), 1993: Lobbying in the European Community. Oxford:
Oxford University Press.
D. (ed.), 1974: Consociational Democracy. Political Accommodation in Segmented
Societies. Toronto: McLelland & Stewart.
Ernst-Joachim, 1994: Zur Wirtschaftsverfassung in der Europäischen Union. In:
Rolf H. Hasse, Josef Molsberger and Christian Watrin (eds.), Ordnung in
Freiheit. Festgabe für Hans Willgerodt zum 70. Geburtstag. Stuttgart: Fischer,
2002: Britain, Germany and Europe. Speech by David Miliband, MP for South
Shields. 19 February 2002. Cologne: Max Planck Institute for the Study of
Andrew, 1998: The Choice for Europe. Social Purpose and State Power from Messina
to Maastricht. Ithaca: Cornell University Press.
Andrew, 2002: In Defence of the 'Democratic Deficit': Reassessing Legitimacy in
the European Union. In: Journal of Common Market Studies 40 (4), 603-624.
and Monica Sie Dhian Ho, 2001: Pedalling Against the Wind. Strategies to
Strengthen the EU's Capacity to Act in the Context of Enlargement. WRR Working
Documents W 115. The Hague: Scientific Council for Government Policy.
2000: Increasing Returns, Path Dependence, and the Study of Politics. In:
American Political Science Review 94, 251-268.
A., 1997: Representing Diffuse Interests in EU Policy Making. In: Journal of
European Public Policy 4, 572-590.
W., 1970: Demokratietheorie zwischen Utopie und Anpassung. Konstanz:
W., 1988: The Joint Decision Trap. Lessons from German Federalism and European
Integration. In: Public Administration 66, 239-278.
W., 1997: Games Real Actors Play. Actor-Centered Instsitutionalism in Policy
Research. Boulder, CO: Westview.
W., 1999: Governing in Europe. Effective and Democratic? Oxford: Oxford
W., 2000: Interdependence and Democratic Legitimation. In: Susan J. Pharr and
Robert D. Putnam (eds.), Disaffected Democracies. What's Troubling the
Trilateral Countries? Princeton: Princeton University Press, 101-120.
W., 2001a: Notes Toward a Theory of Multilevel Governing in Europe. In:
Scandinavian Political Studies 24, 1-26.
W., 2001b: European Governance. Common Concerns vs. the Challenge of Diversity.
MPIfG Working Paper 01/6.
W., 2001c: Mehr Freiheit für die Bundesländer. Der deutsche Föderalismus im
europäischen Standortwettbewerb. In: Frankfurter Allgemeine Zeitung, April 7,
W., 2002: The European Social Model. Coping with the Challenges of Diversity.
In: Journal of Common Market Studies 40 (4), 645-670.
W. and Vivien A. Schmidt (eds.), 2000: Welfare and Work in the Open Economy. 2
vols. Oxford: Oxford University Press.
Rainer, 1995: Reflexive Demokratie. Baden-Baden: Nomos.
G., 2000: Der konsoziative Staat. Hypothesen zur politischen Struktur und zum
politischen Leistungsprofil der Europäischen Union. In: Edgar Grande and Markus
Jachtenfuchs (eds.), Wie problemlösungsfähig ist die EU? Regieren im
europäischen Mehrebenensystem. Baden-Baden: Nomos, 33-58.
E. and Werner Mussler, 1995: The Economic Constitution of the European
Community. From 'Rome' to 'Maastricht'. In: European Law Journal 1, 5-30.
EU-Staaten düpieren Brüsseler Kommission. In: Süddeutsche Zeitung, May 4-5,
L., 1955: The Origins of Totalitarian Dictatorship. London: Secker &
Kathleen, 1999: Historical Institutionalism in Comparative Politics. In: Annual
Reviews Political Science 2, 369-404.
B., 1951: The Governmental Process. Political Interests and Public Opinion. New
George, 2002: Veto Players: How Political Institutions Work. Princeton:
Princeton University Press.
Van der Eijk,
Cees and Mark Franklin (eds.), 1996: Choosing Europe? The European Electorate
and National Politics in the Face of the Union. Ann Arbor: University of
Frank, 2002: The EU and Social Protection. What Should the European Convention
Propose? MPIfG Working Paper 02/6. Cologne: Max Planck Institute for the Study
and Anton C. Hemerijck, 2001: Learning Ahead of Failure. A Research Agenda. Ms.
University of Amsterdam.
2001: The White Paper in Constitutional Context. Florence: European University
and William Wallace (eds.), 2000: Policy-Making in the European Union. Fourth
Edition. Oxford: Oxford University Press.
H.H., 1995: Does Europe Need a Constitution? Demos, Telos and the German
Maastricht Decision. In: European Law Journal 1, 219-258.
H.H., 2000: Epilogue - Fischer. The Dark Side. In: Christian Joerges, Yves Mény
and Joseph H.H. Weiler (eds.), What Kind of Constitution for What Kind of
Polity? Responses to Joschka Fischer. Florence: European University Institute.
Wolfgang, 1997: An Ever Closer Fusion? A Dynamic Macropolitical View on
Integration Processes. In: Journal of Common Market Studies 35, 267-299.
Towards a Pan-European Union. Reports to the Government 59. The Hague:
Scientific Council for Government Policy.
In a more extended discussion, one could locate (input- and output-oriented)
legitimacy arguments at three levels - specific policy processes,
characteristics of the government and characteristics of the regime. If a
specific policy is challenged, an input-oriented justification might show that
it had popular support (e.g., in a referendum) or that the government that
adopted it had electoral support, or that the political system did provide ample
opportunities for challenging and replacing governments of the day. In the
absence of widespread noncompliance, therefore, electoral defeats of the
government need not indicate serious legitimacy deficits - whereas the rise of
parties committed to "system opposition" would. For a similar
hierarchical conceptualization, see Neil Walker's (2001) distinction between
performance legitimacy, regime legitimacy, and polity legitimacy.
For Rousseau, of course, even the volonté de tous would not create legitimacy,
whereas most contemporary theorists would consider unanimous agreement of the
governed as sufficient. The legitimacy problem is thus reduced to the
justification of majority rule.
The change in terminology implies a shift in the criterion of assessment.
Rousseau had taken pains to distinguish the public-interest oriented volonté
generale from the sum-total of private interests pursued by the volonté de
tous, and in the same vein, Habermas (1973, 1996) would allow only
"generalizable interests" in public policy discourses. The authors of
the Federalist Papers, by contrast, and certainly the theorists of American
pluralism following in their footsteps (Truman 1951; Dahl 1967) take the
legitimacy of private interests in life, liberty and property as their point of
departure. By implication, the "common interest" must then be defined
as the social maximum that could be attained through ideal Coasean bargains
among self-interested parties (Scharpf 1997: chapter 6).
In light of some criticisms, it needs to be emphasized that output legitimacy
should not be equated with "output satisfaction". Both input- and
output-oriented legitimating arguments only come into play if a policy violates
politically salient constituency interests. Hence such arguments must refer to
characteristics of policy making structures and procedures that will generally
ensure that policies are common-interest oriented, rather than to the
characteristics of the substantive policy in question.
Accountability is a general concept implying the existence of monitoring and
sanctioning mechanisms in principal-agent relationships. Constitutional
democracies make use of a wide variety of such mechanisms (including
hierarchical supervision, courts of accounts, judicial review, parliamentary
investigations) - all of which serve important purposes, but do not add up to
"democratic accountability" which is constituted by the electoral
dependence of governors on the governed.
Since elections are likely to reflect backward-looking responses to past
government performance, one might doubt their classification as an
input-oriented mechanism. Moreover, since voters can only express blanket
judgments on a diverse variety of policy dimensions, elections are an extremely
crude mechanism for expressing voter preferences, and governments have many ways
of influencing public opinion (Maravall 1999). However, governments are not
alone in playing such games and, more important, they cannot know, at the time
of decision, to which outcomes voters will selectively respond at the time of
election. Moreover, as Lionel Jospin discovered to his disadvantage, voters are
not obliged to be fair: If the economy goes well, it may cease to be a salient
issue and the government may then be defeated on internal security issues, and
vice versa. As a consequence, uncertainty creates strong incentives for
governments to anticipate and respond to a wider range of voter interests than
will actually achieve political salience at election time. (Scharpf 1997:
chapter 8). Hence, if anticipation is taken into account, it does make sense to
consider electoral accountability an input-oriented mechanism.
A somewhat similar, but less dogmatic, argument was recently presented by
Support for the general rule (of free trade, for instance) is of course not
falsified by pointing to empirical examples of governments fighting specific
applications of the rule (Burley and Mattli 1993). If the underlying
constellation of interests resembles a Prisoner's Dilemma, that is exactly what
one should expect - and also the reason why governments would agree to delegate
enforcement powers to a supranational authority (Garrett 1992, 1995).
In the Convention, there are suggestions that the future "constitutional
treaty" might be amended through procedures that would not require
ratification in all member states.
To a lesser extent, supranational powers are also created by European directives
and regulations adopted in the joint-decision mode. In the enforcement of these
more specific rules of "secondary" European law, discretionary
interpretation by the Commission and the Court is more narrowly circumscribed,
but since such interpretations could only be politically corrected upon a
legislative initiative from the Commission and with the agreement of at least a
qualified majority of Council votes, some capacity for supranational policy
making exists here as well. If the Commission had its way, the "revitalized
Community Method" described in its White Paper on Governance (2001) would
greatly expand the scope for supranational legislation (Scharpf 2001b).
Hence governing by intergovernmental agreement must create serious difficulties
for all attempts to define democratic accountability by reference to expressed
constituency preferences, party signals and electoral mandates (Manin,
Przeworski and Stokes 1999).
Such conflict-minimizing rules were originally discovered in studies of
federal-Länder negotiations in Germany (Scharpf 1988).
In defense and external security, what is at stake, for member states that are
also members of NATO, is not so much national autonomy but their relations with
the hegemonic United States (Howorth 2001).
I leave aside the mechanisms discussed in the literature on "path
dependence" (Pierson 2000; Thelen 1999) which may reduce the
problem-solving effectiveness of policy choices, but which will not raise
significant legitimacy issues since they affect the preferences of actors for
maintaining status-quo policies.
For that reason, it still makes sense to speak of a European "joint
decision trap" (Scharpf 1988): Once it has been entered, exit is
In the draft constitution presented as a "Berliner Entwurf" by SPD
members of parliament, the Council would normally decide by a simple majority of
its members. In exceptional cases, a "double majority" in the Council
would have to include governments representing a majority of the EU population
(Glaser and Roth 2002, Article 21).
In the European context, the no-demos debate has become a mine field. In the
hope of avoiding the most explosive charges, I hasten to qualify the above
sentence by three disclaimers: (1) I do not assume that legitimating collective
identities need to be based on ethnicity or other primordial characteristics;
(2) I do not deny that collective identities have been historically constructed
and may continue to be reconstructed through political action and institution
building; and (3) I also accept that collective identities are not necessarily
unitary, and may in fact coexist at several levels of collective identification.
In the latter case, however, it may be necessary to recognize differences in the
intensity of identification - which will become a critical issue if higher-level
collective interests are invoked to justify the violation of lower-level shared
If it is true that collective identity may exist at several levels of
aggregation (Linz 1997), then it must also follow that the relative strength of
identification will constrain the severity of sacrifices that may be
legitimately imposed by governments at each level.
In the light of recent research seeking to demonstrate the existence of a sense
of "Europeanness" through public-opinion surveys, it seems necessary
to re-emphasize that my present argument is narrowly focused on the
justification of majority rule on issues which have a high political salience.
For similar efforts to develop pragmatically useful criteria, see, Philippart
and Sie Dhian Ho 2001; WRR 2001: chapter 5; Kölliker 2001.
I would not consider the difficulties that the Commission would face in keeping
track of differences in the coverage of European law as a compelling reason.
That presupposes that the substantive rules restricting Enhanced Cooperation -
which presently rule out policies that might conflict with the acquis, affect
the internal market or restrain or distort trade among member states (Arts. 42,
c, e, f TEU) - are also relaxed. This could be ensured by including
"protective clauses" in the Treaty which, in analogy to the clauses
mandating gender equality (Art. 3 (2) TEC) and environmental protection (Art. 6
TEC) would oblige European policy makers, including the Commission and the
Court, to give weight to social-protection purposes (Vandenbroucke 2002; Scharpf
It should be noted that the present Treaty also includes a form of opt-out from
existing EU law in Article 88, 2., Para. 3 TEC. Under this rule, state aids that
would otherwise be illegal under Articles 87 or 89 TEC are allowed to stand if
the Council decides unanimously to grant a derogation. While this provision has
lain dormant for a long time, it was recently used by governments challenging
the Commission's interpretation of Treaty rules on industrial subsidies (SZ
However, the European Parliament and the Commission, both of which are likely to
be committed to uniformity for its own sake, should not have a veto.
Copyright © 2003
Fritz W. Scharpf
No part of this publication may be
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Jegliche Vervielfältigung und Verbreitung, auch auszugsweise, bedarf der
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