the politics of subsidiarity in the european union

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Journal of Common Market Studies Vol. 32. No. 2 June 1994 The Politics of Subsidiarity in the European Union KEES VAN KERSBERGEN AND BERTJAN VERBEEK Vrije Universiteit Amsterdam 1. Introduction With the conclusion of the Treaty on European Union at Maastricht in Decem- ber 1991 a new word has entered the fashionable language of Eurospeak: subsidiarity, sometimes mysteriously referred to as ‘the S-word’. The latter expression suggests that the discussion around subsidiarity is connected with the other notorious word of European integration: ‘the F-word’ of federalism. Indeed, subsidiarity appeared as the guiding principle to delineating the com- petences of Brussels versus other administrative authorities, such as national states and regions. Although the meetings of the European Council at Maas- tricht, Lisbon, and Edinburgh in 1991 and 1992 have initiated a lively public debate on the likely merits of the new principle, the precise background and role of subsidiarity in the politics of the European Community has remained obscure. The debate has centred around the question to what extent subsidiarity provides a clear separation of responsibilities between the European Commis- sion, the Member States and sub-national governments or other local authori- ties. As a result, recent polemics have tended to focus almost exclusively on the legal minutiae of subsidiarity as a constitutional rather than political principle. The predominantly legal analyses of subsidiarity are indispensable and useful in themselves, but seem to have the drawback of neglecting the political and ideological context of subsidiarity’s sudden popularity and its likely @Basil Blackwell Ltd 1994.108CowleyRoad.OxfordOX4 IJF, UKand238 MainStreet.Carnbridge. MA02142.USA

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Page 1: The Politics of Subsidiarity in the European Union

Journal of Common Market Studies Vol. 32. No. 2 June 1994

The Politics of Subsidiarity in the European Union

KEES VAN KERSBERGEN A N D BERTJAN VERBEEK Vrije Universiteit Amsterdam

1. Introduction

With the conclusion of the Treaty on European Union at Maastricht in Decem- ber 1991 a new word has entered the fashionable language of Eurospeak: subsidiarity, sometimes mysteriously referred to as ‘the S-word’. The latter expression suggests that the discussion around subsidiarity is connected with the other notorious word of European integration: ‘the F-word’ of federalism. Indeed, subsidiarity appeared as the guiding principle to delineating the com- petences of Brussels versus other administrative authorities, such as national states and regions. Although the meetings of the European Council at Maas- tricht, Lisbon, and Edinburgh in 1991 and 1992 have initiated a lively public debate on the likely merits of the new principle, the precise background and role of subsidiarity in the politics of the European Community has remained obscure. The debate has centred around the question to what extent subsidiarity provides a clear separation of responsibilities between the European Commis- sion, the Member States and sub-national governments or other local authori- ties. As a result, recent polemics have tended to focus almost exclusively on the legal minutiae of subsidiarity as a constitutional rather than political principle.

The predominantly legal analyses of subsidiarity are indispensable and useful in themselves, but seem to have the drawback of neglecting the political and ideological context of subsidiarity’s sudden popularity and its likely

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function in the process of European integration. This is particularly relevant now that all 12 Member States have ratified the Maastricht Treaty. If we are to further our understanding of the history and prospects of economic and political integration in Europe, it appears worthwhile to study the political and ideolog- icalconditions under which acatchword such as subsidiarity was able to acquire its contemporary legal significance. Similarly, intergovernmental analyses of European integration that mainly focus on power and interests of actors are unlikely to grasp fully the specific contents of the bargain struck at Maastricht.

In contrast with the legal studies of subsidiarity in particular, we start from the proposition that attention has to be paid to the various interests and ideologies of political actors at the European level that in our view have shaped the political compromise that subsidiarity embodies. An analysis of the politics of subsidiarity in terms of an interplay of interests, actors and ideologies may not only clarify the evolution of subsidiarity on the European agenda, the timing of its adoption, and the distinctive formula that was eventually chosen, but will also allow for a consideration of some of the possible consequences of the adoption of subsidiarity.

The political analysis of the debate around subsidiarity that we submit puts forward three major findings. First of all, the theory of subsidiarity was put on the European political agenda in the late 1970s by Christian democratic mem- bers of the European Parliament in an interesting, yet - in the light of recent developments -paradoxical effort to justify the enlargement ofthe competences of the European Commission. It was only in the 1990s that subsidiarity evolved into a principle for curbing the potential expansion of power of the European Commission. Second, the adoption of the principle at Maastricht must be interpreted as a resourceful settlement between various political actors holding diverging, if not outright opposed, interests. A minimal definition of subsidiari- ty was the touch of genius that permitted political actors to present an accord, despite almost insuperable ideological disagreements. In this way the seeming- ly insoluble ‘trilemma’ of eradicating the agenda of federalism, protecting national and European interests, and concluding an acceptable treaty on polit- ical union was solved. Third, exactly because the compromise on political union was erected on the lowest common denominator of several interpretations of subsidiarity, it will not last long under the pressure of the conflicts of interests that the process of further political integration would characteristically involve. Individual actors may soon learn that their interests are not at all warranted by the panacea of subsidiarity, because its political and material promises depend on the evolution of the relations of power in the European Union rather than on legal hair-splitting.

These empirical considerations also allow us to outline some theoretical conclusions with respect to the process of integration. In the concluding section

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we argue that the politics of subsidiarity can indeed be analysed with the help of the neofunctionalist concept of spillover, but only on the condition that ideological factors are taken into account.

2. The Emergence of Subsidiarity on the European Political Agenda

Although subsidiarity became the centre of public attention only towards the Autumn of 1991, it has regularly surfaced in discussions about the future of the EC since the mid-1970s. Until approximately 1989 its use remained confined to the European Parliament. Only increasing worries about a slow, incremental widening of responsibilities assumed by the European Commission after the adoption of the Single European Act, caused the Council of Ministers to consider ways of curbing this process without hampering the new ‘spirit of 1992’. An analysis of the debate around subsidiarity since the mid- 1970s allows for two major conclusions. First, the debate in the European Parliament has been dominated by Christian democratic politicians. Therefore, it is no surprise that the role which subsidiarity has played in the various proposals to delineate the respective responsibilities of the Community and the Member States closely resembles the Christian democratic concept of the status and function of the state in modern society. Second, while subsidiarity was originally put forward to justify an expansion of the Community’s competences, it currently figures as the appropriate ideological justification for limiting the Commission’s room for manoeuvre. We conjecture that this reversal is related to a shift in the centre of gravity from the European Parliament to the arena of the Council of Ministers. At any rate, it demonstrates the elasticity of subsidiarity, since the notion apparently can do the trick of legitimizing both the expansion and restriction of authority.

A Christian Democratic Initiative?

Since the mid- 1970s subsidiarity has surfaced, implicitly or explicitly, in most documents in which the European Parliament sought a way out of the dominat- ing mood of europessimism, such as the 1974 report of the Political Committee chaired by the Belgian MEP Bernard which led to the Resolution on Political Union, the 1975 Tindemans Report; the 1979 Biesheuvel Report, the 1980 Junker Report, the 1987 Herman Report and, finally, the 1990 Colombo Report. The latter report not only included a separate survey of subsidiarity, but also led to the adoption of the Resolution on European Union by the European Parlia- ment in 1990. A striking feature of all these ‘Committees of Wise Men’ is the prominent presence of Christian democratic politicians from Belgium, Germa- ny, Italy, and the Netherlands (Bernard, Herman, Tindemans, Colombo, Biesheu-

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vel). The main exception is Giscard d’Estaing, who chaired the special commit- tee on subsidiarity, which reported to Colombo in 1990.

This prominence of Christian democrats in such committees is perhaps not surprising, if one remembers that Christian democrats have been quite success- ful in developing a coherent vision of European integration since the Second World War and have always been warm advocates and promoters of European integration since the late 1940s. Moreover, national Christian democratic parties were relatively keen on organizing at the level of the European Community, which led to the formation in 1976 of a federation of Christian democratic parties, the European People’s Party (EPP) (Irving, 1979; Pridham and Prid- ham, 1981). Leo Tindemans, the EPP’s first President, clearly reinforced the European reputation of the Christian democratic movement by affirming that ‘the goal of our new party will be to breathe new life into the idea of European union; to fight to ensure that European unity is eventually achieved’ (cited in Irving, 1979, p. 249). Moreover, the political and electoral manifestos of the EPP since 1978 have been explicitly federalist (Irving, 1979, p. 249; Hanley, 1994). The 1989 manifesto On the People’s Side (p. 15), for instance, states that ‘only a united Europe can determine its own future in freedom, security and solidarity. Therefore our most important task is the further development of the EC to a political union, to a socially responsible economic and monetary union and to a security union’.

A Sh$t of Arena and Emphasis

The early reports all presented subsidiarity as ameans of resolving the problems that EC Member States were facing in the mid-1 970s and early 1980s. Several tasks could no longer be efficiently performed by the national state, causing a possible waste of effort and resources. The application of subsidiarity would thus serve to transfer bits of sovereignty from the Member States to the Community. Certain areas would be fully dealt with at the European level, such as energy and industry, while others, like education, social policy, and employ- ment policy, would be guided by a common principle, leaving detailed legisla- tion to the Member States. Subsidiarity thus became a tool of promoting the enlargement of Community competences, in the wake of which, it was expected, an increase of the powers of the European Parliament was soon to follow. Subsidiarity was mainly presented as an efficiency criterion in a predominantly federal setting: certain policy goals could no longer be effected nationally and thus called for Community competences. The issue at stake was comparable with and closely related to the debate in the field of Public Administration and Policy Sciences in the early 1970s, in which welfare economics was used to determine the optimal distribution of responsibilities between the levels of

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nation-state, provinces and municipalities for effective and efficient implemen- tation of different policies (see, e.g., Bish, 1971).

The adoption of the Single European Act (SEA), however, brought out and augmented the until then latent anxiety of several actors that the process of completing the Common Market would inevitably lead to an incremental widening of the powers of the European Commission. In this context, the quasi- federal yardstick of effectiveness that subsidiarity was supposed to provide started to be converted into a constitutional principle for safeguarding national and sub-national authority. This process of transformation was initiated at the sub-national level, when in 1988 the German Lander, and Bavaria in particular, raised the matter of the possibly negative effects of the SEA on the federal constitution of Germany and on the exclusive competences of the Lander (Wilke and Wallace, 1990; Schelter, 199 1). This sub-national concern was then rapidly translated into a growing fear of some Member States, notably the United Kingdom, that the European Community’s 1992 programme would not only automatically lead to the de fucto loss of national sovereignty, but would also add to already existing tensions between regional and national authorities. The suggestion was that the Commission might abuse its authority in common market legislation to broaden its influence to policy areas that were supposedly strictly intergovernmental, such as environmental policy (Economist, 22 July 1989). The context of political integration increasingly became one in which Member States turned to subsidiarity exclusively as a way to contain the perceived widening grip of Brussels on European policy-making.

3. The Adoption of the Principle of Subsidiarity

At the conclusion of the Treaty on European Union at Maastricht, subsidiarity was presented as the guiding principle for the distribution of authority between the Union and the Member States. Its status was boosted after the first Danish referendum in June 1992, when the Danes turned down the Maastricht Treaty. In an attempt to counter the negative effect of this outcome, EC Member States and the Commission relaunched subsidiarity in order to reassure anxieties with respect to the expansionary ardour of Brussels. So, at the European Council at Lisbon in June 1992 it was decided, first, that the United Kingdom, the Council’s President during the second half of 1992, would compose a handbook of subsidiarity for EC law-makers, and second, that existing EC legislation would be screened for compliance with the subsidiarity principle (Economist, 4 July 1992). As to the former, subsidiarity’s fundamental ambiguity immedi- ately surfaced when a first draft of the handbook was rejected by the Council of Ministers at their meeting of 9 November 1992, on the grounds that it would reduce the Commission’s powers too much (Economist, 14 and 28 November

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1992). The Edinburgh Summit on 11-12 December 1992 resulted in the adoption of two memoranda, one an attempt to define the principle with more precision, the other an overview of the Commission’s assessment of existing EC legislation (Conclusions of the Presidency, 1992). Yet, the extent of precision of the document was apparently lost on outside observers, who thought it an example of ‘explaining everything at enormous and incomprehensible length’ (Independent on Sunday, 13 December 1992).

The adoption of subsidiarity was cheered by both defendants of more authority at the Community level, like France and Germany, and opponents of such a development, as, for instance, the United Kingdom. Not surprisingly, subsidiarity rapidly became the ‘Euroconcept all can admire by giving it the meaning they want’ (Economist, 4 July 1992). Nevertheless, the course of events suggests that subsidiarity offered a way out of a pressing conflict of interests and a clash of strongly articulated political convictions: how to avoid a development of creeping federalism, feared by the British and the Danes, without frustrating the new optimism around the completion of the common market? One insider alluded to the central role of Dutch Prime Minister and Christian democrat Ruud Lubbers in tabling subsidiarity during the meetings of the European Council since 1988.1 He seems to have been the driving force behind the instalment of subsidiarity as the principle that promised to regulate the distribution of competences between Brussels and the Member States congenially.

It seems, therefore, that subsidiarity has primarily served to reconcile the conflicting interests of principal actors affected by the consequences of the common market: the United Kingdom, Germany, and the European Commis- sion. The United Kingdom feared that the completion of the European market would slowly eat away portions of national sovereignty. The German federal government, as well as the European Commission, had met strong resistance from the German Lander, who feared that the completion of the Internal Market, based on negotiations between Bonn and Brussels, would actually lead to the shrinking of their regional competences. The European Commission, of course, was predominantly interested in playing down the impression that the ‘1992 programme’ would lead to ever growing power-wielding by Brussels.

Given this configuration of conflicting interests, subsidiarity must have some sort of inborn capacity to accommodate, because the notion appears to hold out a clear criterion for the separation of responsibilities, but at the same time allows for a postponement of the precise identification of such responsi- bilities. Its actual adoption was most likely facilitated by the presence of key actors who were - to a greater or lesser extent - familiar with these faculties of the concept as with other aspects of mainstream Christian democratic philoso- ‘The evidence comes from Dutch Christian democratic MEP Arie Oostlander (Oostlander, 1992, p. 372).

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phy, for instance, John Major,2 Jacques Delors,3 Helmut Kohl, Wilfried Mar- tens and Ruud Lubbers. In spite of this closeness, these actors nevertheless held different views of subsidiarity and the success of the Maastricht compromise can to a large extent be explained by the guidance and political skill of Lubbers who managed to achieve consensus on the lowest common denominator of the divergent views.

4. Three Ideologies of Subsidiarity

Three views of the relationship between state and society have furnished three different interpretations of subsidiarity: ( 1 ) Christian democratic ideology, (2) German federalism, and (3) British conservatism. The lowest common denom- inator of all three is a narrow legal view which envisions subsidiarity solely as a constitutional arrangement between central and local public actors. The Christian democratic theory of subsidiarity in particular deserves attention, not only because it officiates as a main source of inspiration of the debate and because it is the most elaborate theory, but also because national Christian democratic parties are presently at work on an ideological recharge of the dry battery of subsidiarity.

Christian Democratic Ideology

Christian democracy has developed an elaborate view of subsidiarity. It is common to trace the notion of subsidiarity to the body of Roman Catholic social doctrine. It is also common to date its birth as 1931, that is, when the Vatican published Quadragesirno Anno, the encyclical letter to commemorate the 40th anniversary of the first social encyclical Rerum Novarum (1 89 1 ). The relevant section of Quadragesirno Anno reads as follows:

Just as it is wrong to withdraw from the individual and commit to agroup what private enterprise and industry can accomplish, so too it is an injustice, agrave evil and a disturbance of right order, for a larger association to arrogate to itself functions that can be performed efficiently by smaller and lower societies. This is a fundamental principle of social philosophy, unshaken and unchange-

’Will Hutton has observed that Major ‘is a prime minister who has appointed a highly intelligent Catholic in the mainstream of the European Christian democratic tradition as the chairman of his party; and one who may have a better grip of what the European notion of the so-called “social market” means than any other prominent British conservative. Who has another Catholic and mainstream Conservative in Sarah Hogg running his policy unit. And who has a close and symbiotic relationship with a non-ideological Catholic - his [former] press secretary, Gus O’Donnell’ (Marxism Today, April 1991). ’Delors himself is quite familiar with the Christian democratic tradition: he was a member of the semi- religious ‘New Life’ movement, and is acquainted with the personalist philosophy of Mounier. Although a socialist, Delors clearly belongs to that intellectual tradition which attempts to bridge the gap between Christian democracy and socialism (Wilke and Wallace, 1990, p. 4; Oostlander, 1992, pp. 372-3; Klop, 1990, pp. 236-7). 0 Basil Blackwell Ltd 1994

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able. Of its very nature the true aim of all social activity should be to help members of the social body, but never to destroy or absorb them. (Cited in McOustra, 1990, pp. 45-6)

It is correct to assume that the term subsidiarity is not used before the publication of Quadragesimo Anno. It is equally inaccurate, however, to suppose that the fundamental ideas incorporated in the notion are approximately 60 years old. In fact, in Rerum Novarum one finds the very idea of subsidiarity in the context of a description (or rather prescription) of the rights and duties of the body politic with respect to the relief of poverty. State intervention is argued to be limited insofar as smaller social units such as the family are not to be absorbed. The state should only come in ‘whenever the general interest or any particular class suffers, or is threatened with harm, which can in no other way be met or prevented ...’ (Rerum Novarum, in Gilson, 1954, pp. 224-5). The limits are strict, albeit dependent on the historical circumstances: ‘the law must not undertake more, nor proceed further, than is required for the remedy of the evil or the removal of the mischief‘ (Rerum Novarum, in Gilson, 1954, p. 225). This is, of course, the doctrine of subsidiarity in its embryonic form.4

Most analyses of subsidiarity tend to stop with the establishment of the fact that the notion is of Catholic origin and that the current use of the term in fashionable Eurospeak has very little to do with its ancestor. Nevertheless, we presume that a juxtaposition of parent and child may clarify some of the murkier aspects of the offspring.

First of all, one has to appreciate that in Catholic social doctrine subsidiarity is intrinsically linked with other fundamental principles, such as personalism, solidarity, pluralism and distributive justice, that -taken together -have found their most profound expression in the continental Christian democratic version of the welfare state, the social market. This set of ideological precepts forms the gist of what distinguishes continental Christian democracy from conservatism, particularly of the British kind. This underscores our claim that subsidiarity in its Anglo-Saxon (and contemporary European) use in fact denotes something very different from what Christian democratic Europeans usually have in mind. It is important to appreciate that subsidiarity for the latter is a social theory of the proper relation between state and society that contrasts with socialist theory, in the context of a moral theory of the proper role of the person that contrast with liberal individualism. ‘The socio-political ideas outlined in Quadragesirno Anno, in turn, find their origins in nineteenth-century social Catholicism in Germany, particularly in the writings and practice of Bishop Emmanuel Von Ketteler ( I 8 1 1-77). Ketteler’s influence on Vatican social doctrine was considerable.Rerurn Novarum was inspired by Ketteler’s thought and Leo XI11 mentioned this more than once (see Bowen, 1971, p. 79). The Pope, in fact. called Ketteler his great predecessor. And for Germans who were familiar with Ketteler’s ‘The Labour Question and Christianity’ nothing much original or new could be found in Rerurn Novarum (Hogan, 1946, p. 237). whereas the similarity between the two documents -even in the use of words - was conspicuous (Hogan, 1946. p. 238). 0 Basil Blackwell Ltd 1994

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The tradition of European Christian democracy concedes a fundamental distinction between state and society. State (politics) and society are separate entities that are parts of a larger and comprehensive organic totality. The state serves the public good and protects the legal order. This implies that the state should create the conditions under which the lower social bodies and families can attain their ends. Intervention by the state is justified only when the public good is threatened. As soon as the circumstances are improved as aresult of state intervention, the state has to retreat and withhold further intervention. In this sense state interference is always temporary and ought not to drift into perma- nent politicization. In principle, then, the state in Christian democratic political doctrine has a wide competence with respect to the domain of possible intervention, but a restricted authority with respect to the duration of political mediation.

Although, in particular, in Catholic social and political doctrine the state is viewed as the highest corporate body, it does not in any sense imply a centralist view on politics. For every organ in society has its own and indispensable function. The principle of subsidiarity in this context guarantees the supplemen- tary and ‘helping’ intervention of the state, but at the same time sets limits to such interference with the affairs of other bodies. Where exactly the limits of state intervention are to be sought is made contingent upon the historical conditions under which a state function^.^ Subsidiarity can thus be character- ized as a theory that can be launched to justify both public intervention and the withdrawal of state activity. In this specific sense, it is a dynamic and histori- cally sensitive, yet open-ended, social and political theory.

The Christian democratic doctrine of (horizontal) subsidiarity has always had this double connotation. It is both meant to describe the means of protecting the sovereign sphere of smaller social groups, and to prevent the state from becoming ‘overloaded’ with demands from the lower and smaller social groups.

A prominent Dutch member of the European Parliament for the European People’s Party, A. Oostlander, has recently given an account of the contempo- rary relevance of this concept. He argues that subsidiarity is apt to deal with such matters as the precise delineation of the core tasks of the (supranational) state, the allocation of responsibilities, the protection of a plural society, self- governance, and like matters. In fact, he severely criticizes the opportunism of users of popular Eurospeak, because they misconstrue the proper meaning of subsidiarity :

’ The political theory inspired by the religious inclination of the reformed churches - at least in the Netherlands - has a comparable principle, which is called the ‘sovereignty in one’s own circle’. Although in some respects the Protestant and Catholic conceptions of state regulation come down to very much the same thing, the Protestant doctrine of ‘sovereignty’ limits state interference somewhat more (Van Kersbergen, I99 I , p. 291 ).

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the first mistake being made concerns the neglect of the moral contents of the concept. Many think that subsidiarity is only about the allocation of compe- tences according to the criterion of efficiency . . . . Accepting the touchstone of efficiency only conceals the moral issue. For efficiency itself should have a purpose . . . . Political practice insufficiently acknowledges that subsidiarity is intimately linked with social personalism. (Oostlander, 1992, p. 373, our translation)

The ‘Weltanschauung’ that is acclaimed here is one that stresses the relative autonomy of social organizations in the context of a plural society, glued together by a morality that is supposed to provide harmony or solidarity between the various groups and organizations of a society and which is assisted by a ‘caring’ state.

The notion of solidarity as harmony is an intrinsic component of the Christian democratic tradition and is alternately paraphrased as ‘integration’, compro- mise, accommodation and pluralism. It symbolizes the idea of personalism. Personalism, a term recently enjoying a remarkable revitalization among Flemish Christian democrats and at the European level (Diericks, 1994), entails a particular theory of social justice, that - rather than balancing rights and duties - fundamentally underscores a moral obligation to help the ‘weak’, ‘poor’, ‘lower strata’, or whoever may be in need of help. Furthermore, social justice does not refer to the relations between individuals (as a liberal concept would), but instead to the relations between social groups and organizations.

Personalism accords the ‘Weltanschauung’ of Christian democracy its spe- cificity and has the following consequences for practical policy: (1) all social action should be oriented to enable personalities to develop along certain ideal lines, to acquire certain basic characteristics and social and technical skills; (2) these ideal personalities should be grouped in a plural social structure, in which room is left for the free, though socially responsible, development of groups of all shapes and sizes, from the family as the cornerstone of society to the international community of nations; (3) the social structure should be glued together by and function through sanctions (political, economic, or social) and mechanisms (competition, direction, consultation) combined so as to maintain its personalist and pluralist character (Fogarty, 1974, p. 29).

The family in this theory is the authentic and pre-eminent social unit in which individuals evolve into complete persons. Without the social bonds of family life, individuals remain incomplete persons. Like the state, the family exists by natural necessity. The germ of society at large is present in this elementary social unit. The role division between man and woman is a natural one. Christian democrats see themselves as the special upholders of the family’s needs and rights and of the natural order of society in general.

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These are some of the central characteristics of the integrative ideology of the Christian democratic movement on the European continent in which subsidiarity and personalism as socio-political notions have such a conspicuous status. In sum, the Christian democratic account of subsidiarity embodies a dynamic theory of state and society and their respective function and responsibility.

German Federalism and British Conservatism

As noted above, the role of the German Lander in putting subsidiarity on the European agenda has been critical. We can now better appreciate the extent to which the view of subsidiarity put forward by these regional authorities differs from the Christian democratic vision. The Lander put forward the relevance of the German federal constitution for the future definition of Brussels’s compe- tences. They basically demanded that a European arrangement confine the responsibilities of the Commission, thus at the same time respecting existing federal arrangements which granted a large degree of autonomy to sub-national units. On the surface, such a distribution of responsibilities echoes the Christian democratic theory of subsidiarity. On closer inspection, however, it is clear that the latter’s moral and dynamic qualities are absent. As a matter of fact, the programme presented by the Lander is essentially static, calling for a clear and Iasting separation of powers rather than a flexible concept reflecting a philos- ophy of state-society relations. Ultimately, it would amount to drawing up a European constitution. Nevertheless, in the current debate on subsidiarity this ‘federalist’ interpretation is often presented as the only relevant definition of the principle (Heintzen, 1991, pp. 3 17-23).6

As an ‘anti-centralist ’ principle subsidiarity certainly appears to be attractive to British conservatives. However, there seem to be two problems. First, incorporating a principle such as subsidiarity into EC treaties ‘would be received with alarm by lawyers brought up in the common law tradition. For if written in as a pure statement of principle, it would serve no purpose. And if written in as something more, i t could do great harm’ (House of Lords Select Committee on the European Communities, 1989, p. 71; as cited in Wilke and Wallace, 1990, p. 21). Second, if the German Lander advocate the principle clearly to define and defend federal boundaries, what would this imply for British regional and (sub-)national politics? So, subsidiarity tends to conflict with British conservatism. Nevertheless, subsidiarity may comprise a link to the social philosophy of that current of the British Conservative Party, the roots of which can be traced to the view of a social economy that would redress the excesses of capitalism. As is fairly well known, this idea developed in the 1930s, finding its exemplar expression in Harold Macmillan’s The Middle Way. Tories

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affiliated with this current may have found some kinship with their Continental Christian democratic penchant in their views of how the Common Market should come about with at least some form of social compensation. Present Prime Minister John Major, for one, was raised in this Tory environment. One of the principal differences in outlook compared to Christian democracy concerns the range of social policies the Internal Market requires in order to function properly, a question ‘subsidiarity’ clearly does not answer. The basic difference between conservatism and the Lander-vision is, as said, the absence of the territorial element.

Creeping Federalism?

Perhaps what cemented these views on the meaning and relevance of subsidi- arity together was the fear of ‘creeping European federalism’. The German Lander have used it to put pressure on Chancellor Kohl and President of the European Commission, Jacques Delors, in order to protect their own autonomy in the advent of increasing understandings between Bonn and Brussels. The British government led by John Major felt attracted by it, because it seemed a perfect instrument to prevent the European Community from snatching away national sovereignty. At the same time, Jacques Delors grasped subsidiarity as ameans of temporarily soothing these fears, well aware that the adoption of such a dynamic and moral concept would not by definition preclude future enlarge- ments of the Community’s responsibilities. This also explains the low profile and servile attitude the Commission adopted in 1992 in an eager attempt to avoid any impression of ‘creeping federalism’. Finally, the Dutch Prime Minister, as President of the European Council at Maastricht, had an interest in making the summit both a personal (his European ambition is an open secret) and a Dutch success by concluding a Treaty on European Union.

It seems, therefore, that the emphasis on one particular aspect of subsidiarity, the division of responsibilities between various authorities, furthered a compro- mise at Maastricht that left every actor with the impression that their vital interests had been protected. Yet, at the same time, this compromise, based on the lowest common denominator of the above outlined views, carries the danger of falling apart as soon as the daily business of subsidiarity in reality starts affecting the interests of the parties involved. When that happens, the ideolog- ical underpinnings of the various actors will surface again and possibly create a new barrier to the effective operation of subsidiarity in the European Union. Subsidiarity has never solved any conflict of interest, but has so far merely transferred and postponed latent political confrontation.

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5. Possible Consequences of Subsidiarity

The intriguing question in the light of these considerations is what possible consequences the compromise on subsidiarity is likely to have for the process of European integration. We expect four possible repercussions. These concern subsidiarity ( 1 ) as an instrument of Member States to protect their interests; (2) as an instrument of sub-national actors to challenge the national centre; (3) as an instrument of Brussels to increase activities in previously excluded areas of policy; (4) as a cause of politicization of the European Court of Justice. In addition, we briefly consider the extent to which subsidiarity can be expected to affect the extension of EU social policy, as an illustration of our hypotheses.

Subsidiarity and European Integration

As we have observed earlier, the principal point of consideration is the essential vagueness of the principle when employed to delineate legislative authority and administrative capacity. Given this ambiguity there seems to be a need to describe competences in full detail. Subsidiarity is supposed to serve as the criterion that every proposal of the Commission should meet. The burden of proof thus lies with the Commi~sion.~ If this is to be the proper role of subsidiarity, the principle may very well develop solely into an instrument of Member States to protect national interests. A national government might reject any Commission’s proposal that threatens its own interests simply on the grounds that it does not stand the test of subsidiarity (Laffan, 1992, pp. 21 6-17). In the Autumn of 1992 the Committee of Permanent Representatives attempted to turn subsidiarity into a criterion that would be part of European legislative procedures. The proposal read that a majority of seven Member States would be enough to prevent a Commission’s proposal from being formally tabled at a meeting of the Council of Ministers. However, the Council of Ministers rejected the proposal on the grounds that it would in practice rigorously limit the Commission’s competences (Office of the European Commission, 1992, p. 457). The underlying dilemma adding to the already considerable confusion is, of course, that, in order to prevent subsidiarity from becoming exclusively a potentially powerful defensive mechanism of individual Member States and therefore of national interests, one has to abandon the myth that the principle embodies a substantive criterion. In other words, proposals such as those prepared by the Committee of Permanent Representatives, are likely to con- strain the Commission and other actors to engage directly into a more transpar-

’ This has been the argument the French government has put forward in persuading the French to vote in favour of lhe Maastricht Treaty at the 1992 referendum: subsidiarity constitutes a ‘base juridique qui pennettra d’apprkcier le bien-fond6 des initiatives prises au niveau communautaire et, Cventuellement, de lescontester’, La France aucoeurde I’Europe. Leirrede Murignon, July 1992. p. 43. This argument seemed convincing for at least one French weekly, L’Espress. 17 September 1992, p. 60. 0 Basil Blackwell Lrd 1994

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ent determination of which competences should hold at what administrative level. Such developments would thus generate precisely that situation which the compromise of Maastricht set out to avoid in the first place.

Subsidiarity, moreover, can have the unintended consequence of developing into an instrument of sub-national actors to challenge the national centre. Although, by and large, the timing of the adoption of subsidiarity is explained by short-term considerations of compromising between Member States, the debate about its merits had been fuelled by the pressure from the regional level, especially the German Lander. The spur to a common market has already intensified efforts by regional authorities to monitor and influence the decision making process in Brussels (see Gardner, 1991, pp. 75, 99, 114-16).8 The German Lander have been especially keen to control any effects of European integration that might curb their autonomy vis-h-vis the national state. Their eagerness to adopt subsidiarity is a result of the conviction that subsidiarity serves to protect regional autonomy, because Brussels and Bonn will both have to show that they can perform a certain task better than the region.

Although this view of the usefulness of subsidiarity may be shared by other Member States (Belgium with its regional problems comes to mind), the extension of the debate to national-regional and European-regional relations is also likely to cause unrest in more centrally organized Member States, such as France and the United Kingdom (Allen, 1992, p. 244). Subsidiarity may then have the effect of furthering the process of regionalization and is likely to be employed politically in this sense. The strongly growing Lombard League in Northern Italy. for instance, might try to profit from subsidiarity in an attempt to promote the ideal of an entirely autonomous Northern region within an Italian federation that has some independent ties with the European Union (Bocca, 1990, pp. 334).9 Paradoxically, the instrument that is to protect national authority from supranational meddling may be a cause of its very erosion.

Subsidiarity may also have definite effects on policy activism in Brussels. Any tangible effect of the adoption of subsidiarity will depend largely on the development of the relations between the Commission and the Member States. Its effectiveness as a tool to restrain activity in Brussels may well be limited if the Commission continues to be as energetic as the Delors presidencies have been so far. It is often overlooked that the Commission can take initiatives in certain policy areas under the condition that it can show that these serve the completion of the Internal Market. Indeed, the Commission has already entered policy areas that supposedly belong to the national domain, such as education

' Before the Maastricht Treaty the regions had already succeeded in founding a Committee of the Regions. 'This is a real possibility, because the Italian constitution of 1948 explicitly allows for certain bordering regions to acquire a greater level of autonomy within the Italian republic (see, e.g., Leonardi el a/ . , 1987).

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and health,IO and social policy (see below), precisely on the grounds that these concerns follow automatically from the creation of an internal market.” Sandholtz and Zysman (1989, pp. I12-15), for instance, have shown how an activist Commission succeeded in reorientating national governments to Euro- pean solutions by reducing political issues to a series of seemingly technical steps. In fact, when the Danish first rejected the Maastricht Treaty, the Commis- sion deliberately adopted a low profile seeking not to annoy national govern- ments any more than strictly necessary in order to safeguard ratification of the Treaty (Economist, 18 July 1992, p. 29). This suggests that the adoption of subsidiarity is unlikely fully to curb the gradual extension of Commission competences, because of its legitimate role in guiding the completion of the Internal Market.

A final consequence of subsidiarity with respect to the process of integration concerns the potential politicization of the European Court of Justice. The three problems that we have discussed so far appear to result from the essentially hollow character of the principle of subsidiarity. Unless one succeeds in agreeing to a detailed description of the distribution of competences between Brussels, Member States and sub-national authorities, the adoption of subsid- iarity can only add to the confusion of responsibilities. In the context of such bewilderment, it has been suggested that the European Court of Justice might serve as an arbitrator, thus almost granting it the role of a constitutional c0urt.1~ Such a solution, however, might prove to be as counter-productive as the adoption of subsidiarity itself. The Court is generally considered to lean towards integrative decisions.I3 If this tradition is extended to conflicts of competence between Brussels and Member States, i t may cause the further alienation of those states which clung to subsidiarity as an instrument of controlling Brussels, particularly the United Kingdom.

lo The Commission’s proposal of early 1992 tocreate a European Drugs Observatory mounted fears in the Netherlands that its national policies on drugs, preserved after a tough battle during the intergovernmental Schengen negotiations, might become subject to EC meddling. Parliament asked the Dutch government to preserve national competence in this area (HandelinRen Tweede Kamer fDutrh Parliamentary Records], 1991-1992,22657. I , IOJune 1992). With respect toeducation Dutch Parliament (andchristiandemocratic representatives in particular) observed that the completion of the Internal Market might necessitate European policies. Pointing to the article in the Constitution on freedom of education and stressing the principle of subsidiarity, however, Parliament urged the government to assure national sovereignty in this area (Handelingen Tweede Kamer [Dutch Parliamentury Records], 1990-1991, 2 1952, I I December 1990). ‘ I Even in the area of foreign policy, it could be argued that the European Commission considered the crisis in Yugoslavia as a ‘window of opportunity’ which would allow it to expand its influence in European Political Co-operation by promoting a common European policy to the conflict. l 2 This idea seems to have come up at the Lisbon Summit ofJune 1992 (Economist, 4-10 July 1992, p. 15). ” This i s also stressed by a former Court Judge himself (Mancini, 1991, p. 190; see also Economist. 4-10 July 1992, p. 15).

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Subsidiarity, Social Policy, and Christian Democracy

The problem of social policy is particularly interesting as a test case for subsidiarity, first, because the preamble of the ‘Community Charter of the Fundamental Social Rights of Workers’ of late 1989 includes an explicit reference to the principle of subsidiarity; second, because the completion of the Single Market almost inevitably causes social problems that transcend the boundaries of national welfare states, and third, because subsidiarity in the Christian democratic interpretation is likely to reappear, because - in contrast to the more constitutional use of the term - the principle is intimately associated with the idea of socially embedding a market economy. In other words, Christian democrats already possess a well-defined theory of how to add a social dimension to Europe through the application of subsidiarity as a socio-political notion.

In his preface, Delors defines the Social Charter as the keystone of the social dimension in the construction of Europe: ‘[ilt incorporates a foundation of social rights which are guaranteed and implemented, in some cases at the level of the Member States or at Community level depending on the field of competence’. Subsidiarity appears in one of the considerations in the preamble: ‘[wlhereas, by virtue of the principle of subsidiarity, responsibility for the initiatives to be taken with regard to the implementation of these social rights lies with the Member States or their constituent parts and, within the limits of its powers, with the European Community’, immediately followed by the ‘reassuring’ statement, that ‘the solemn proclamation of fundamental social rights at European Community level may not, when implemented, provide grounds for any retrogression compared with the situation currently existing in each Member State’.

It is clear that the inclusion of subsidiarity in the Social Charter implies all the above identified problematic consequences of subsidiarity as a general constitutional principle: an instrument of Member States to protect the national character and development of the welfare state, an instrument of national actors to retain social policy as an exclusive domain, increasing social policy initia- tives in Brussels, and possibly even the politicization of the European Court of Justice in conflicts over authority in this domain.

The actual relevance of subsidiarity in the field of social policy and with it the fate of Europe’s social dimension will to a large extent depend on the conditions under which constraints that impede and forces that propel the development of a European social policy are likely to crystallize and steady. In their thorough and persuasive analysis of the prospects for a social Europe, Leibfried and Pierson list four barriers to social reform: (1) the fragmentation of European political institutions, exemplified by the conflicts over the exten- sion of majority voting to social policy at the Maastrich Summit and the 0 Basil Blackwell Ltd 1994

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exceptional position Britain was granted; (2) the absence or weakness of political forces, notably social democracy and organized labour, and coalitions that can shoulder the expansion of social policy; (3) the economic, social and cultural heterogeneity of Europe, that complicates the construction of an integrated and harmonized social policy; (4) the fundamental diversity of national welfare states that appears to exclude the development of a European social policy. According to their analysis, ‘the welfare state remains the realm of policy competence that still rests firmly in the hands of national governments, neither gravitating upward to the EC nor devolving to local or regional governments. Given the popularity of most social programs, national adminis- trators will not be eager to accept a major transfer of social policy authority’ (Leibfried and Pierson, 1992, p. 348).

What, then, are the pressures that may encourage social policy development at EU level? First, there is the possibility of ‘social dumping’, that is ‘the prospect that firms operating where “social wages” are low may be able to undercut prices of competitors, forcing higher-cost firms to either go out of business, relocate to low social wage areas, or pressure their governments to reduce social wage costs’ (Leibfried and Pierson, 1992, p. 349). In any case, ‘social dumping’ is likely to increase the political demands on national welfare arrangements and -if such demands are difficult to meet at the national level - on social policy activity of the EU. Second, economic integration constrains the capacity of nation states to pursue or continue national social policies, because national social policies emerge as non-tariff barriers to trade, inviting a response from the Commission (Leibfried and Pierson, 1992, pp. 348-53). Finally, ongoing economic integration may spur the need to extend the meaning of European citizenship and accompanying rights.

In sum, the balance of pressures seems to be such, that - arguing from a moderate neofunctionalist point of view - spillovers from the completion of the Internal Market make it virtually impossible for the EU not to raise efforts in the domain of social policy. However, pressures or ‘needs’ to pursue social policy do not, of course, guarantee their own fulfilment. It might be true that the institutions of the EU are likely to take initiatives. It may be the case that the success of such initiatives depends on political support at the national and supranational level. Probably national governments would accept European social policy if national solutions prove to be deficient. One could even argue that social policy is not necessarily disadvantageous to business. Nevertheless, institutional constraints and the configuration of political forces will still make up powerful barriers to the development of a European welfare state.

This brings us right back to the problem of subsidiarity and the conditions under which this principle will function as a restriction against or advocate of increasing social policy activity of the EU. Surely, scepticism is warranted ‘if

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by a European social policy one means only a full-fledged welfare state, based on the social democratic/corporatist models of Northern Europe’ (Leibfried and Pierson, 1992, p. 3 5 9 , because the necessary conditions for such a welfare state (strong centralized political institutions, powerful social democratic labour movement) are conspicuously absent in the EU (Streeck and Schmitter, 1991). Leibfried and Pierson rightly challenge the relevance of social democratic power resources for the development of a Nordic type of welfare state. However, in their eagerness to criticize the preoccupation of many a researcher with the Scandinavian model, they still underrate the impact of Christian democratic politics on the development of continental welfare states. If political support for the social dimension of Europe is to be found anywhere, it is in the Christian democratic tradition of social policy, the more so as this movement is solidly present in Europe.

Christian democracy on the European continent is characterized by a specific theory of how to embed socially the market economy that is quite distinct from conservative, liberal and social democratic beliefs. The German Christian democrats, of course, have provided us with the ‘social market’, whereas in more general terms one might designate this theory of the social embeddedness of the market as social capitalism (Van Kersbergen, 1991, 1994).

A central element of the theory of social capitalism concerns the moral obligation and legitimation of state intervention which, in turn, accords the notion of subsidiarity its socio-political meaning. The distinctiveness of the Christian democratic idea of subsidiarity is found in the accentuation of the obligation of the state to act as ‘corrector’ of the detrimental social effects of unconstrained market relations. Social policy is not to alter the market mecha- nism, but only to provide a safety net for workers who - for whatever reason - fail to secure their means of income on the market. One can expect Christian democracy to promote what one might call a passive or reactive social policy (Van Kersbergen and Becker, 1988), in the sense that such policy strongly relies on transfers and subsidies rather than employment policy and services. Such a practice typically moderates the outcomes of the imperfect market by transfer- ring considerable sums of money to families in need, but hesitates in changing the logic of the market itself.

Now, if the balance of power in the European Union excludes the develop- ment of a social democratic welfare state, it is not at all obvious that it would also hinder the chances of the type of social policy that Christian democrats have traditionally fostered in nations such as Italy, Belgium, Germany and the Netherlands. If Christian democrats at the European level are willing and capable of ideologically upgrading the current constitutional meaning of sub- sidiarity, they will attempt gradually to introduce social policy measures with reference to the conviction that the social tensions that inevitably follow

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from the completion of the Internal Market exceed the problem-solving capacity of Member States. This fact, by virtue of the subsidiarity principle, is then taken to justify the transfer of social policy to the authority of the EU. In this context, the words of the former Prime Minister of Belgium and chairman of the European People’s Party, Wilfried Martens (199l), are telling. He argued that Christian democrats have helped build and will continue to strive for a western European model ofsociety, whose characteristics are parliamentary democracy, an economic system based on free enterprise in a free market, an extensive system of social security, the partial seclusion of labour from the too unstable working of the market, the elimination of financial barriers to education and the assignment of public responsibilities to semi-public and intermediary struc- tures. No doubt, Christian democrats will defend this vision of a social and ‘subsidiary’ Europe at various levels of the EU.

6. Conclusion: Subsidiarity and Integration Theory

The adoption of the Single European Act in 1986 not only intensified the European integration process and cured it from Eurosclerosis, but also gave a new impetus to dormant theories of political integration. The Europessimism of the 1970s and early 1980s seemed to confirm Haas’s view that regional integration theory had become obsolete (Haas, 1975).’4 The success of the European drive towards a single market, however, has set in motion a reassess- ment of the neofunctionalist approach to political integration, and the concept of spillover in particular. Basically, neofunctionalists explain the process of integration in terms of steps taken by political and business elites based on their calculation of the likely costs and benefits of such a step. Each new step in a given policy area is expected to affect other policy areas by changing their external conditions. This process of spillover will thus force political and business elites to redefine their cost-benefit analysis, which could lead to further steps towards integration or to attempts to stop or reverse that process.15

Recent applications of neofunctionalist theory to the adoption of the Single European Market suggest that the spillover process can lead to further integra- tion only after the establishment of a set of intergovernmental bargains which may themselves be provoked by developments that lie outside the traditional integration process. The concluding of the Single European Act should thus be understood not so much as a spillover product from European integration, but

l4 This view seemed to find evidence not just in the difficulties that marked the European integration process, but also in the problems that other regional organizations, such as the East African Community, the Latin American Free Trade Association, and the Andes Pact, encountered in that period. I5The spillover concept has many problems: some consider i t to depict actual processes of affecting new policy areas; others prefer to identify spillover with the increased capacity of supranational actors (e.g. De Vree, 1972). We use the term in the first meaning.

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rather as aproduct of factors exogenous to integration, especially changes in the international environment (increased competition between the United States, Japan, and western Europe) and domestic policies (a change to deregulation policies in the United Kingdom and, in 1983, France).

The concluding of the Treaty on European Union, however, may itself produce effects that can be understood as spillover because the Single European Act changed the parameters of the cost-benefit analysis that political elites make when they consider taking steps that may lead to further integration (Keohane and Hoffmann, 1991, pp. 18-25; Moravcsik, 1991, pp. 41-84; Mutimer, 1989; Sandholtz and Zysman, 1989).

When applied to the principle of subsidiarity, spillover seems relevant in two respects. First, the exact timing of its introduction can be understood in terms of spillover. The introduction of the Single European Act in 1986 (or accepting to introduce some 300 pieces of regulation that would realize a single market by 31 December 1992) set in motion the jockeying for positions on issues that had to be dealt with before that date: (1 ) the harmonization of fiscal and monetary policies, (2) redistributive and social issues, (3) defence policies, 4) finding a balance between the Community and national decision-making (Sandholtz and Zysman, 1989, pp. 120-2). Obviously, the first three points were intimately related to the fourth, whereas subsidiarity has been introduced ostensibly to deal with aspects of all four. In other words, once the 1992 programme seemed attractive to all actors, and actors decided to comply, new bargains had to be struck, all related to the relation between Brussels and the Member States. This ambiguous matter has made subsidiarity all the more attractive.

Second, the ratification of the Maastricht Treaty is probably setting in motion another wave of spillover processes, in which the principle of subsidi- arity must play some role. Yet, the specific content given to subsidiarity cannot be fully understood with simple reference to spillover and calculations by political actors. We have argued that their interests should be put into the proper context of their ideological points of reference. On a theoretical level, we would like to emphasize that, in the study of international relations and of European integration, ideological factors may complement and correct analyses that focus only on the interests and power of actors (Verbeek, 1992,1993). We have shown how the ideological notion of subsidiarity served to escape the dilemma of how to curb the feared expansion of the Commission’s powers without hampering the 1992 process. This was only possible because of a compromise between several actors who were familiar with the term, but entered that compromise with diverging connotations of the use and importance of the concept. It is therefore very likely that the effects of subsidiarity will make these divergencies resurface and may thus have consequences that the adherents to the compromise had not anticipated at all.

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