To what extent is member states’ policy and administration “European”?
In current European political, administrative and legal science, the European Union is understood not only as a legal community, but also and above all as a “European Administrative Space”, within which the cooperating authorities and bodies of the member states and the European Union act as a “European Integrated Administration”.
National and international research on the European Administrative Space largely deals with the organisation of the EU’s own administration (in particular the Commission and the agencies) and the formulation and implementation of EU policies by these bodies. When it examines the role of member states in the European Administrative Space, it usually focuses on analysing the extent to which European integration affects and aligns member states’ political and administrative systems, thus limiting the scope for states to make decisions, take action and set priorities.
It also analyses which legal and political (acceptance) limits exist for (further) European integration and whether these have already been exceeded in certain areas. A substantial proportion of the national and international research on the European Administrative Space therefore concentrates on the constraints for action and changes in national policy and administration brought about as a result of European integration generally and individual European policies specifically. It therefore conveys an image of a policy and administration in Member states, which is largely shaped by increasingly converging legal and administrative systems – an image that is often criticised, and which is to some extent instrumentalised within member states’ national politics.
The polycrisis in the European Union and the diversity of member states’ legal and administrative cultures
At the same time, the European Union experiences a polycrisis: this includes the ongoing financial and currency crisis, the refugee crisis, the increasing threats to both internal and external security and the tensions arising from unequal standards within matters of social security and tax justice, but also from the implementation of environmental, transport and climate change policies. In addition to all this comes the fundamental challenge to the very idea of EU membership that has been brought about by Brexit.
This polycrisis has clearly highlighted the enormous differences that remain in the legal and administrative cultures of EU member states and, with this, their shared responsibility for these crises and existing imbalances. It has also made it clear that member states continue to make use of considerable political and legal options both within and outside of “Europeanised ” policy areas. These differences can be seen in the setting of political priorities (and in the implementation of EU legal requirements); in the different conceptions of democracy and the rule of law; in the tasks, organisation, configuration and structure of public administration and its relationship to government; and in issues surrounding the training and recruitment of civil servants and lawyers, which are also important in this context.
The legal and administrative “diversity” that is evident here amongst member states is presupposed above all by Article 4 (2) TEU, with its reference to the necessity of respecting their “fundamental structures, political and constitutional, inclusive of regional and local self-government”. It therefore forms the basis of the European Union.
Political and administrative leeway granted to member states in European integration as a focal point of the programme
The considerable legal and administrative cultural differences between member states therefore suggest that the European legal and harmonisation framework is generally much broader and more generous than it is perceived as being within the remit of national administration, both at the practical and Academic levels (also and especially in Germany).
Many of the problems member states face in implementing Union law are likely to be due to a lack of understanding regarding the reach of European requirements. Our research therefore concentrates both on sounding out the political and administrative scope and options for action granted to member states within the framework of European integration, and on the question of how and to what extent national policy and administration can play a part in shaping European policies through the institutions, bodies and offices of the Union.
The duty of sincere cooperation (Article 4 (3) TEU) as a framework for the political-administrative leeway granted to member states of the European Union
While the continued existence of member states’ political and administrative leeway is presumed within the scope of the application of Union law under Art. 4 (2) TEU, it also operates within the framework of member states’ duty to cooperate in good faith, pursuant to Art. 4 (3) TEU.
“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”
What these terms mean
- member states = all member state’s “powers” (legislators, courts, administration) at all levels (in Germany e.g. Federation, Länder, municipalities);
- appropriate measure(s), general or particular = legislation, budgetary allocation, administrative rules, judicial decisions, administrative acts, contractual administrative action, factual measures;
- obligations arising out of the acts of the institutions of the Union = obligations arising from secondary legislation (directives, regulations), decisions of the Court of Justice of the European Union, resolutions of the Commission.
What member states are required to do “to fulfil their obligations” is often referred to in German as the “Umsetzung” (implementation) of Union law requirements, but should here (in the German) be referred to as the “Verwirklichung” (realisation) of Union law requirements, following the respective usages in English (“realisation”) and French (“mise en œuvre”). In this respect – despite some crossover – three distinct realisation phases can be identified, which are described particularly in English-speaking European Studies but also in the practice of the EU institutions with the triptic “Transposition – Implementation – Enforcement” (see e.g. European Parliament – Think Tank, Transposition, implementation and enforcement of Union law, 15.11.2018).
This table clearly shows that any Union act that is to be “realised” by member states must be implemented and enforced. A “transposition phase”, by contrast, is only necessary if an act of Union law is not directly applicable – as with a directive, for example – and its normative programme must therefore be transposed into national law by national legislation.
Finally, from a scientific perspective, it is important to emphasise that the terms “transposition – implementation – enforcement” only serve here to designate the three realisation phases. The use of these terms with this meaning in this context does not therefore imply that identical or similar terms used in the primary law of the European Union – e.g. in Art. 291 (1) TFEU or Art. 51 (1) of the Charter of Fundamental Rights of the European Union – would have the same meaning or refer exclusively to a certain “realisation phase”.
Prerequisites for effective awareness of political-administrative leeway amongst member states
The proper implementation of Union law by member states requires that the national authorities responsible for implementing that law correctly understand the content of the directives to be implemented at all stages. If these provisions are underestimated, member states risk facing significant negative consequences. At the same time, however, opportunities for national policymaking are also wasted if existing realisation obligations are overestimated as a result of an overcautious thinking. This may lead to a perception of discrepancy between Union legal requirements and national political preferences that in reality do not exist.
National politics has the opportunity to make use of what political science literature refers to as the “customization” of Union law requirements, namely the opportunity to “tailor” the programme of Union law requirements to be implemented according to national political preferences.
The basic prerequisite for the exercise of political-administrative leeway is therefore the correct understanding of Union law requirements on the part of the domestic authorities in charge of the implementation (across all the three phases mentioned above). The result of this process of recognition must not be the emergence of “national Union laws”. Rather, it is the nature of Union law that it should be understood uniformly throughout the Union by all bodies responsible for its implementation, both in member states and in European institutions.
If member states of the European Union want to make effective use of the political and administrative leeway they enjoy in European integration, this presupposes above all the development of sufficient “European expertise” across all domestic bodies entrusted with the implementation of Union law. Only this will enable them to identify opportunities for “customization” and at the same time comply with the framework for political-administrative leeway as monitored by the Union’s institutions.
Particularities of national political-administrative leeway in the European Integrated Administration
The three stages in the implementation of Union law described above are based on a clear horizontal separation between the administrative level of the Union and that of the member states (the distinction between direct and indirect enforcement of Union law). They also suggest a clear vertical separation of the “administrative areas” of the individual member states in relation to each other: each Member State implements Union requirements within its own territory. However, primary law (Art. 4 (3) TEU) imposes cooperation and information obligations in the relationship between the Commission and member states’ administrations, which may possibly be more closely defined or consolidated under secondary law(vertical administrative cooperation).
Moreover, as the EU becomes increasingly concentrated into a single administrative area, Union law overcomes the separation between the authorities of the different member states by obliging them to cooperate directly with each other(horizontal administrative cooperation). This closer, more constant and more networked administrative cooperation between member state authorities and/or the EU’s own administration, as structured through secondary legislation, marks a shift from a mere act of cooperation to an integrated administration. The difference is incremental in nature, and “integrated administration” can be described as a particularly close form of administrative cooperation. This is because the administrative network creates a clear “co-administration”, for example in the form of staged administrative procedures (administrative procedures involving several member states and/or the EU’s own administration), the establishment of common information systems and, increasingly, the setting up of networks of member states’ specialised authorities, the Commission and/or certain EU agencies. This network formation, such as it is, already leads by itself to a certain detachment of the interconnected national specialist authorities from their respective national administrative hierarchies. This is amplified when Union law requires member states to give their authorities freedom from directives, thus awarding them technical independence.
The question of member states’ room for political and administrative manoeuvre thus presents itself in a particular way in the context of European integrated administration. From the perspective of the national authorities, the extent to which they themselves can help shape the work of integrated administration, set its priorities and thus steer it in the direction of their own administrative policy preferences should be examined. This requires a very specific European competence, but also considerable professional skills (and thus corresponding abilities) and a corresponding will to shape the future. From a national policy point of view, the question arises in particular as to how this can contribute specific policy ideas even if “its” national authorities are legally independent or only de facto independent within the integrated administration.
From the perspective of the European Union, the question arises as to whether it can encourage a uniform implementation of the Union’s requirements through the integrated national authorities, and to whether this would be done through the administrative network alone, through the (also networked) Commission and/or certain EU agencies? Or “from outside”, by relying on member states for the conduct of “their” specialist authorities working within the administrative network, by means of the Commission’s “classical supervisory instruments”, in particular the infringement proceedings according to Art. 258 et seq. TFEU?
Research fields of the programme
The European Administrative Space programme focuses on the institutional and material prerequisites for political and administrative leeway in the member states of the European Union, both
- from the member states’ perspective (enforcement of national policy preferences while preserving those national legal and administrative cultures that are worth preserving)
- from that of the European Union (ensuring effective and uniform implementation of Union law within the European Administrative Space).
From this, the programme has derived the following more concrete research fields, which will be prioritised within the framework of the European Administrative Space programme.
- Research field 1: European Administrative Space, European administrative networks and comparison of European (legal) administrations: the fundamentals
- Research field 2: Best and worst practices of responsibility sharing in the European multi-level system: division of responsibility, shifting of responsibility and irresponsibility
- Research field 3: National political and administrative diversity in Union unity: recognising leeway and limits
- Research field 4: Assertiveness of member state administrations in formal and informal European negotiation arenas and in the European Administrative Network: prerequisites, opportunities, strategies
- Research field 5: The common rule of law and democratic standards of "good administration" as the basis of the European Administrative Space
Prof. Dr. Ulrich Stelkens
Prof. Dr. Cristina Fraenkel-Haeberle