By David Harrison (*)

"The Union has been an economic organization searching in vain for a political identity":
Financial Times: 5 October 2001

1. Introduction

The key to making progress in a future enlarged EU may be to draw a clearer distinction between law making and policy making. EU laws create rights and obligations which can directly affect EU citizens, and so be enforced by them in any local court. Policies are rather different in nature: upstream of legislation, they may lead to laws being passed, but they normally aim to shape the behaviour of public authorities in the EU.

The EU has a well developed legislative apparatus, with a refined system of checks and balances. EU law has evolved some important doctrines, and is likely to evolve further. By contrast, the EU has not yet developed a particularly strong policy making or policy execution apparatus. The EU tends by default to use law making machinery to address policy issues. But this is unnecessarily cumbersome and rigid. Machinery perfectly well adapted to making laws is not well suited to responding to, and getting to grips with, fast moving policy problems.

Although there will always be issues requiring a legislative response, many of the biggest challenges facing the EU today are of a policy rather than a legal nature. Events since 11 September 2001 have underscored this. In preparing for EU enlargement reforms to streamline and make policy making more effective appear essential. This paper makes some suggestions.

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2. EU Law Making

The key features of EU law, whether in primary form in the Treaties or in the shape of binding secondary legislation (regulation, directive or decision), are:

• It is ultimately justiciable by the European Court of Justice;
• It involves (with the exception of some legislative powers solely exercised by the Commission) the familiar classical EU machinery. A Commission proposal is needed and, for the most part, the co-decision procedure for adopting laws involves both the Council and the European Parliament as the two arms of a legislature;
• The system of checks and balances was slightly but not fundamentally altered by the Nice Treaty and appears likely to be retained in its essentials as the EU enlarges.

EU law has also seen some important innovations. Since the founding of the main EU institutions major new legal doctrines have been created through case law in the Court of Justice. These include the doctrine of the primacy of EU law over conflicting national law (which originates from 1964); and the doctrine of the direct effect of EU law, whereby national courts may apply EU law as if it was national law (originating from 1962 for Treaty provisions, and progressively extended to much secondary legislation). The implications of such doctrines are still being worked out, including the idea which has been developed since 1991 that member states should compensate their own nationals for breaches of EU law. Since 1992 the Commission has had the power to impose fines on member states which breach Court rulings.

The application of EU law may also be decentralised to institutions in the member states. This is under active discussion in certain areas of competition law. Limited Commission resources, higher volumes of business, the impact of enlargement and greater familiarity with the key legal concepts are all factors arguing in favour of authorities in the member states applying EU law, subject to Commission and Court oversight to ensure a consistent approach.

Indeed, it has been suggested that the member states' general duty under (what is now) Article 10 of the EC Treaty to ensure fulfilment of obligations arising out of the Treaties is 'the core of the constitutional law of the Community'(l). As the EU enlarges further, it seems likely that we shall see a further evolution in the relationship between national and EU institutions in applying common laws.

Thus, although the EU law making system may now be well bedded down, EU case law resulting from the Court of Justice is very unlikely to stand still. EU law is likely to become more effective, more far-reaching and more local.

It is against this background that policy making in the EU should be considered.

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3. Policy Making

Policy making is relevant to broad strategy setting in the EU, and also to such major subjects as foreign policy, defence and security issues, economic policy coordination and internal security. In all such matters the action that follows adoption of a particular policy direction tends to involve public bodies - either at EU level or else in national administrations in the member states themselves - undertaking some action. At the extraordinary European Council on 21 September 2001, for example, it was decided that the fight against terrorism 'will, more than ever, be a priority objective of the European Union.' The fundamental problem in such cases is frequently not so much one of drawing up laws but rather one of mobilising resources in pursuit of a common objective. Laws may follow in some areas but in others (eg foreign and security policy) this will be less likely.

Effective policy making and effective policy execution require something rather more binding than inter-governmentalism and something rather less formal than legislative procedures. They demand good policies but also a shared sense of purpose. This is a political rather than a legal or administrative consideration. What is needed, in effect, is that a new ethos of collective responsibility should apply in those areas where joint action is undertaken.

The idea of collective responsibility is a pragmatic constitutional device. It operates within national governments to ensure that there is a consistent approach by all members of the government to a diverse range of issues. It can even operate in coalition governments between differing political parties, who agree to be bound as the price of retaining power.

At a European level collective responsibility can be envisaged in carrying out those policies where it is agreed there should be common action. The implications of this are an acceptance of mutual support to further a particular goal, or, at the very least, an acceptance that criticisms of such a policy should be made in private, but not in public.

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4. The European Council

Committing and engaging resources for major policy initiatives at a European level cannot realistically be done without the support of heads of government. The European Council is the place where broad strategy is supposed to be set out ('The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof': Article 4 of the Treaty on European Union). It is also the place where heads of government have the opportunity to focus on major policy issues and give political - rather than legal -directions. (The European Council is not, formally speaking, an EU institution. Its conclusions do not normally have the force of law, and nor are they subject to review by the Court of Justice).

Any attempt to improve policy making in the EU has to start with the European Council. The importance of many of today's policy issues, and the fact that they cross so many national and administrative boundaries, mean that junior Councils and the apparatus of official machinery cannot sensibly substitute for such a political authority.

European Councils have in recent years rather lost their way. In the EU of the Fifteen they are frequently large, cumbersome, two-day conferences, high profile in nature and attracting an enormous media presence. Up to 10,000 people may gather (of whom a tiny proportion are real participants). In the summit meetings the time taken for discussion of any one subject makes it physically impossible to do justice to more than about four items on the first of the two days: while the second day tends to be dominated by detailed discussion of the technical conclusions produced overnight by officials. The conclusions themselves are often long and encyclopaedic. The political authority of EU leaders and any clarity of strategy tends to be lost in an excess of technical detail, which cannot be understood by non-experts, or the European public at large.

The European Council could however become much more forward-looking and strategic in nature. The extraordinary European Council which was held at short notice on 21 September 2001 after the terrorist atrocities in the United States, and which produced succinct conclusions and a plan of action, shows what can be achieved.

Rather than reacting to policy problems thrown up by technical Councils on a six monthly Presidency-to-Presidency cycle, EU leaders should themselves as a rule more actively set the EU policy direction, set their own agenda (including which technical items they were prepared to discuss), plan the forward programme of EU business (and review progress), issue only concise and clear press statements when there is something to say and, as necessary, give guidance or instructions to national authorities to pursue agreed European policies.

In this way the European Council would act rather as a national Cabinet, exercising collective responsibility by determining forward-looking policy at a European level and co-ordinating the optimum EU and national response to shifting circumstances. The European Council would work backwards from the policy objectives it wanted to address, deploying the most appropriate administrative response to the case. Having set objectives for the EU, a further vital task for the European Council would then be to mobilise public opinion in favour of those objectives.

The practical organization of business in the European Council could be improved in a number of ways. The following are some ideas:

• The Presidency of the day should not handle the European Council solely as the culmination of its own (short) six-monthly programme but rather as a standing political authority with long term objectives of its own;
• As well as the (probably unavoidable) formal summits, modern communications should be exploited to create permanent links between EU leaders and their offices, to allow the despatch of all business not requiring physical meetings. Fixed periods in the week or month might then be allotted to dealing with 'European Council business';
• Only major strategic and policy questions should be considered at European Council level. A filter mechanism (involving either ministers or officials) may need to ensure this;
• When there are meetings these should be held with the maximum informality and the minimum participation by non members (other members, officials etc);
• Conclusions, if any, should briefly reflect what has been discussed, and not attempt to comment on all current issues. (The conclusions and plan of action of the extraordinary European Council on 21 September 2001 are a model in this respect). Conclusions could be combined with explanatory press statements, as necessary.

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5. Delegated Responsibility

If the European Council worked more effectively as the EU's political authority it would be possible to reorganize and streamline the existing Council structure. A distinction could again be made here between law making and policy making.

The law making function of the Council is already part of the legislative system described above. In the adoption of legislation there is a good case for putting matters on a more formal footing and making Council sessions open to the public. Such sessions need not be very frequent: indeed, the Council as a legislative body need only meet as and when there is legislation to consider. The number of meetings and the different types of subject Council could almost certainly be reduced as EU enlargement continues.

The policy making function of the Council could be handled differently. For this function ministerial policy groups would become in effect sub-committees of the European Council, handling for example economic policy, foreign policy, or internal affairs. Ministeral policy meetings would be reorganized around the subject matter, including using communications technology to avoid mass travel and retain privacy of discussion. Ministerial policy making groups should have many fewer participants than legislative Councils, to encourage informality and effectiveness.

Operating under an overall principle of collective responsibility, Ministerial policy groups would have responsibility delegated to them by the European Council to pursue certain objectives. The means of doing so would be up to them. Public authorities in the member states, in various types of configuration, could be instructed to carry out delegated tasks. Where EU authorities exist, tasks would be carried out in association with them.

Although it may be that in practice ministers would normally tend to oversee the implementation of strategies set by the European Council, in principle there is no reason why the European Council could not also delegate responsibility to carry out specific tasks to other groups and entities. This could include for example economic coordination among those ministers belonging to the euro-group; ad hoc task forces of public bodies of various member states to carry out particular objectives; possibly the establishment of specialist agencies to undertake technical work (in, say, the defence field); and possibly even delegated responsibility to one member state or one individual to act on behalf of the EU as a whole (in, say, conducting a delicate negotiation).

The delegation of responsibility to certain member states to carry out tasks on behalf of the EU as a whole may be the answer to fears by some member states of a directoire of large member states dominating the EU. In matters that do not require the resources of a large state there is no reason why a smaller member state should not be asked to act for all.

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6. The Role of the Commission

The Commission has a unique role that straddles both law making and policy making. It has sole authority to propose laws, and the President of the Commission is also a member of the European Council. If at any point a matter of policy requires legislation to achieve its objectives it is the Commission which draws up the draft legislation, consults experts, and launches the process involving the Council and Parliament which leads to binding laws being adopted. At the same time the President of the Commission is in a position to influence the policy agenda in the European Council, and if he is astute will be able to work within a policy consensus to ensure legislation is adopted. Drawing on the expertise of the Commission services the President of the Commission may be able to take a longer term view of some policy issues than other members of the European Council. In addition, there are certain fields (eg external trade) where the Commission is solely competent to represent the EU.

Should the Commission have sole responsibility for initiating policy as well as legislation? Article 211 of the EC Treaty gives the Commission wide ranging powers 'to ensure the proper functioning and development of the common market'. Should such powers go wider?

There are good reasons why the Commission should not have the monopoly of initiating all policy as well as legislation. Perhaps the main one is that in matters of policy which are outside normal EU competence it is the administrative machinery of the member states which is necessarily involved in execution. The political authority of EU leaders is required to commit resources in the member states, which are collectively very much greater than resources available to the Commission. EU leaders, in adopting policies, are accountable to their own electorates. To engage public opinion in the member states and to ensure that national administrations act in a coherent manner under a principle of collective responsibility requires a shared input into the policy making process.

In practice policies will originate from many different sources. The European body politic is extremely fertile. Rather than nominating any one entity as the monopoly provider the EU should encourage a competition of ideas. These can come from within the public sector (at both national and European level) and from outside it (from political parties, academic institutions and think tanks). The European Council will only be able to act when policies are sufficiently thought through, and the Commission may be in a better position than most to suggest these.

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7. The Role of National Parliaments

Making a distinction between law making and policy making may help resolve the longstanding problem of how to fit national parliaments into the institutional architecture. If legislation remains the domain of the European Parliament, the debate about policy could become the domain of national parliaments. The mobilization of resources of the member states will have implications for national budgets, and these remain subject to the oversight of national parliaments. Equally, economic policy coordination involves fiscal rules which are also their concern.

Various methods of integrating national parliaments into the EU order are under review (eg a new senate, a new second chamber, dedicated committees from national parliaments). Whichever method is chosen the objective should be to create a system whereby new pan-European policy issues which affect all the member states can properly be analysed and debated. Issues as diverse as public services, crime, education and economic policy which are in fact common to each member state could for the first time be considered in a pan-European context. Out of such a debate the best policy responses should emerge, which could then be recommended to the Commission and the European Council.

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8. Conclusion

This paper does not advocate dismantling the Community method. On the contrary, it suggests building on it as a foundation to allow the EU to engage properly in new political areas beyond the conventional EU spheres. The shift in accent from economic to political issues coincides with enlargement, requiring a rethink of working habits. Events since 11 September 2001 have also provided a spur. In national political systems policy making and law making are distinct functions, and the time may have come to recognise this distinction at an EU level. Policies may lead to legislation, but in some major new areas (such as macroeconomic policy, and foreign and defence policy) legislation is unlikely to be the most useful instrument to be deployed. That does not mean the EU should be inert.

There is no inherent conflict between national and European systems of democracy. Both serve the same European society and body politic. They serve the same people, in other words. A better organised policy function could help bring both European and national systems of democracy together, to the benefit of each.

October 2001

* David Harrison is the author of The Organisation of Europe (Routledge 1996, London and New York) and Deputy Director of the Council on European Responsibilities (COEUR), on whose behalf he produced the report 'The European Council: Relaunching Europe's Political Authority' in 2000. He has written this article in a personal capacity.

(1) Dr John Temple Lang: 'The Core of the Constitutional Law of the Community:
Article 5, EC Treaty' (1995) (www.europa.eu.int/comm/competition/speeches)

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