e British Balance of Competences Review, launched in 2012, sparked a lively political and academic debate about the core competences of the European Union. BALANCING COMPETENCES Today, the Balance of Competences Review is no longer just a debate about the EU’s power, but has stimulated much broader issues about the position of the Member States in the European Union. How far does the range of their power MEMBER STATES IN BRUSSELS reach? is is the central theme of this book. AND BRUSSELS IN THE MEMBER STATES What should the relationship between the Member States and the European Union look like from a liberal perspective? Is the EU a union of liberal states or a liberal union of states? Or both? Readers are invited to sharpen up their own ideas about Charlotte Lockefeer-Maas the position of Member States in relation to European institutions. Editor BALANCING COMPETENCES ISBN/EAN: 978-90-73896-72-7 Balancing competences Member States in Brussels and Brussels in the Member States Charlotte Lockefeer-Maas Editor Published by the European Liberal Forum asbl with the support of Prof.mr. B.M. TeldersStichting (TeldersFoundation, Dutch liberal think tank), VšĮ ‘Atvira visuomenė ir jos draugai’ (Open Society and its Friends, Lithuanian liberal think tank), and Liberalismi Akadeemia (Academy of Liberalism, Estonian liberal think tank). Co-funded by the European Parliament. Neither the European Parliament nor the European Liberal Forum asbl are res- ponsible for the content of this publication, or for any use that may be made of it. The views expressed herein are those of the author(s) alone. These views do not necessarily reflect those of the European Parliament and/or the European Liberal Forum asbl. Copyright © 2015 European Liberal Forum asbl, Brussels, Belgium This publication may only be reproduced, stored or transmitted, in any form or by any means, with the prior permission in writing of the publisher. Enquiries concerning reproduction outside these terms should be sent to the European Li- beral Forum. Cover illustration: Juggler by Katrin Leo Pako from the Noun Project. Further information and distribution: Prof.mr. B.M. TeldersStichting Mauritskade 21 2514 HD Den Haag The Netherlands 0031 (0)70 363 19 48 www.teldersstichting.nl [email protected] Printed in the Netherlands by Oranje/Van Loon B.V. Den Haag ISBN/EAN: 978-90-73896-72-7 Keywords: European Union, liberalism, balance, competences, subsidiarity Contents Preface III Felicita Medved 1. Introduction 1 Charlotte Lockefeer-Maas The foundation of the European Union 2. Competences review in the European Union. Is there a liberal 5 solution? Krisztina Arató 3. Everything flows and nothing abides. Or: how to prevent the 13 subsidiarity debate from obscuring our view about what really matters Jieskje Hollander 4. Subsidiarity. An ambivalent principle 23 Robert Nef Governance and policy 5. The virtues and vices of multi-level governance from a liberal 39 perspective Caspar van den Berg 6. Do we need EU regulation to open up trade in Europe? Mutual 55 recognition versus harmonisation Pieter Cleppe Reforms 7. Evidence from the British Balance of Competences Review 71 Michael Emerson 8. How to shape a more effective European Union 85 Derk Jan Eppink 9. Concluding remarks 93 Charlotte Lockefeer-Maas About the authors 97 About the organisations 99 I Preface Felicita Medved With a mandate to promote liberalism, liberal ideas and policies and make a contribution to the democratic development of the European public sphere, the European Liberal Forum (ELF) creates space for liberals to exchange knowledge, to debate and reflect and, in so doing, to increase our capacity to take action at European, national, regional and local levels. Of late, much energy amongst members of our foundation has been focused on the future of Europe. The publication you are about to read discusses the sensitive field of ‘Balancing Competences’. The eloquent subtitle with its focus on ‘Member States in Brussels and Brussels in the Member States’ refers to the ongoing theoretical, political and functional challenges facing Member States in the European Union (EU) and the future distribution of powers between these states and the EU. The arguments presented in this book illustrate these problems by examining subsidiarity, a principle which can be understood and carried out in various different ways. Complementing the principles of conferral and of proportionality, subsidiarity is fundamental to the functioning of the EU. But Member States have different expectations of the principle of subsidiarity, driven by the amount of power they each possess and by the various national interests they are trying to promote. Sparked by the recent so-called subsidiarity reviews conducted by the United Kingdom and Dutch governments, which spelled out the policy areas in which they feel the EU should be less involved or not involved at all, the authors of this book offer a debate on the conceptual and substantive dimensions of subsidiarity and proportionality and provide some possible reforms in relation to the problems of implementation. The i ssue o f subsidiarity strikes a chord w ith m any p eople a cross Europe a nd national subsidiarity reviews are a response to the growing euroscepticism at home. But even those who, on all sides of the political spectrum, are sceptical or opposed to radical changes to the EU - either for ‘more’ or ‘less Brussels’ - accept that there is a need to change in future. Indeed, it appears that no one is happy with the status quo. We, the liberals, remain committed to the EU and its core values, and believe that we should continue to share the same principles. Any engagement with, or structural changes to, the institutions of the EU and the Member States alike should not endanger the fundamentals of subsidiarity, proportionality and solidarity, if we are to deliver a more democratic Europe which is close to its citizens. In my understanding, balancing competences would mean the implementation of these key principles understood primarily on functional and consequently only in a territorial manner. Enjoy your read! Felicita Medved President of the European Liberal Forum, asbl III Introduction Charlotte Lockefeer-Maas In 2012, the United Kingdom launched a Balance of Competences Review asking its ministries to make an inventory of the distribution of power between the UK and the EU in all the policy areas over which Brussels exerted influence. The British Balance of Competences Review sparked what would become a lively political and academic debate about the core competences of the European Union. In 2013, the Dutch government published a report which compared European policy to the principles of subsidiarity and proportionality; what followed was a list of examples of legislation that should either remain within the scope of the powers of Member States, or be recalled. In the United Kingdom, this debate continues with the British government wanting to renegotiate its position within the EU and for the British people to vote in a referendum – to be expected in 2017 – about their membership of the EU. It is clear that the Balance of Competences Review is no longer just a debate about the EU’s power, but has stimulated much broader issues about the position of the Member States in the European Union. How far does the range of their power reach? This is the central theme of this book, a book which the European Liberal Forum hopes will make a real thought-provoking contribution to the current debate about the distribution of powers between Member States and the Union. If we want to examine the position of the Member States vis-à-vis Brussels in depth, we first need to address the more fundamental questions about the existence of the EU and the way it is structured. This is done in the first section called: The Foundation of the European Union. In the three chapters written by Krisztina Arató, Jieskje Hollander and Robert Nef, questions are addressed about the nature of the union, the reasons for European integration and the principle of subsidiarity which is the theoretical root of the distribution of powers within the EU. Why are we - as European States - actually together? What exactly is the principle of subsidiarity? These are the questions we cannot avoid if we want to know what policies can be made in Brussels or belong to the Member States. In the second section: Governance and policy we then look at the method of governance and policy within the EU. The relationship between Brussels and the Member States is, by no means, a simple relationship between two bodies of the democratic public administration. The traditional image of a centralised State distributing powers clearly to other levels of government seems, in any case not to apply to the relationship between Member States and the European institutions. The theory ofmulti-level governance, which states that powers are diffusely distributed based on territorial and functional factors, seems more applicable. 1 Caspar van den Berg asks what impact administrative flexibility will have on the liberal norms underpinning public administration, such as democracy, legitimacy and transparency. In the next article, Pieter Cleppe weighs up the pros and cons of the two different types of regulation that Brussels can use: mutual recognition of the different national kinds of legislation versus harmonisation of legislation so the same rules apply to all Member States. The particular type of regulation that is selected by Brussels has, of course, an effect on the policy freedom of the Member States. Finally, in the third section, Reforms, we focus on ideas about reformation. First, Michael Emerson analyses and criticises the British Balance of Competences Review, explaining what the project covers, what its outcome was and the conclusions that can be drawn from it for other Member States.