Multi-Level Governance on the Field of CFSP

Krisztina Juhász

(Teaching Assistant at University of Szeged Faculty of Law and Political Science Department of Political Science)

Multi-level governance on the field of CFSP

I. Theoretical backgrounds

The conception of multi-level governance belongs to the recent generation of the theories of the European integration. This approach would like to reflect to the processes which have been passed within the European Union over the past two decades (for example the creation of the internal market and the economic and monetary union). According to this theory we can witness the formation of a new policy-making process in which although nation states have a central role, they don’t have the monopoly of decision-making any more. Such supranational and subnational partcipants enter the process of decision-making as the European Commission or the European Parliament and regional or local authorities.

In connection with the multi-level governance it is worth dealing with the definition of governance. The Commission on Global Governance which was presided by Willy Brandt accepted a report (Our Global Neighborhood) in which the body gave the undermentioned definition of governance: ’’Governance is the sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and co- operative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest.’’[1]

The White Paper of the European Commission on the European Governace stresses five principles in connection with ’good governance’:

• Openness: institutions of the EU should work in a more open manner. Together with the Member States they should give information about the activity of the European Union in a languauge that is accessible and understandable for European citizens.
• Participation: the quality and effectiveness of EU policies depend on ensuring wide participation throughout a policy chain from conceptions to implementation.
• Accountability: transparency and accountability of those actors who take part in the the legislative and implementation process must be ensured onall level of governance.
• Effectiveness:the main requirements of the European policies are efectiveness and beingtimely. These demands include defining the real objectives and the proper implementation of decisions.
• Coherence:Establishing the coherence of the EU’s policies and activities is more and more urgent because of the widening and the deepening of the European integration. This requirement can only be ensured by the consistent and harmonized activity of the EU’s institutions and the Member States.[2]

Reverting to the theory of the multi-level governace, the essence of this conception is that the European Union is a complex institutional and poltical entity, in which there is a cavalcade of interests, actors and information. This political system,which is separated from its Member States, is characterized by the structure of multi-level governance in which there is a permanent interaction among the supranational-European, the national and the subnational (regional, local) actors. In this multi-level and multi-participant political structure authority is dispersed among the above-mentioned political levels and actors. According to the White Paper of the Committee of the Regions: ’’[…]multi-level governance means coordinated action by the European Union, the Member States and local and regional authorities, based on partnership and aimed at drawing up and implementing EU policies.It leads to responsibility being shared between the different tiers of government concerned and is underpinned by all sources ofdemocratic legitimacy and the representative nature of the different players involved. By means of anintegrated approach, it entails the joint participation of the different tiers of government in theformulation of Community policies and legislation, with the aid of various mechanisms (consultation,territorial impact analyses, etc.).”[3]

II. Multi-level governace and CFSP

Common Foreign and Security Policy was launched as the intergovernmental cooperation of the Member States by the Maastricht Treaty which came into force on 1November 1993. CFSP is a kind of policy where Member States retained their central policy-making role despite the Amsterdam and Lisbon Treaty which mean movement towards the strengthening of the European level.

My lecture revolves around the following two questions:

• how does the mechanism of multi-level governance prevail on the field of CFSP;
• how does the division ofauthority privail between the Member States and the EU from the initiative through thedecision-making to the implementation in connection with the CFSP?

1. Initiation of decisions

According to the provisions of the Lisbon Treaty the following legal acts can be adopted within the CFSP:

• general guidelines: which identify the strategic interests of the EU and the objectives of the CFSP;
• decisions: which refer to the actions and positions to be undertaken by the Union and the implementation of the previous two.

The right of initiation belongs to the High Representative of the EU for Foreign Affairs and Security Policy and the Member States. Before the Lisbon Treaty right of initiation belonged to the Commission of the Europen Union and the Member States. As the Lisbon Treaty identified the High Representative as the vice-president of the Commission, theCommission has lost the right of initiation and it can practise this right through the High Representative (vice president).

2. Decision-making system of the CFSP

Because of the intergovernmental character of the CFSP, its decision-making system is different from other policies of the EU. Stakeholders of decision-making are the European Council and the Council,the latter of which is in the composition of the Foreign Affairs Council. The competence of the European Council is to adopt the general guidelines for the CFSP while the Council frames the CFSP and takes the decisions necessary for defining and implementing it on the basis of the general guidelines.In consequence of the intergovernmental character of the CFSP, decisions are adopted unanimouslywithin the Council but there are some exceptions when the Council acts by qualified majority:

• when adopting a decision defining a Union action or position on the basis of the guidelines of the European Council;
• when adopting a decision defining a Union action or position, on a proposal which the High Representative has presented following a specific request from the European Council;
• when adopting any decision implementing a decision defining a Union action or position;
• when appointing a special representative following the recommendation of the High Representative.

Qualified majority can’t be applied to decisions having military or defence implications.

The Lisbon Treaty maintains the’constructive abstention’ within the Council in the case of unanimous voting. The essence of this legal means is: any member of the Councilmay qualify its abstention by making a formal declaration. In this case it isn’t obligated to apply the decision, but it has to accept that the decision commits the EU. If the member states qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision can’t be adopted. Consequently in this case constructive abstention transforms to veto.

Another quibble for the Member States to get out of the use of the qualified majority is ensured in the Article 31 of the Treaty on the European Union. If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, the vote can’t be taken. This provision which was originally introduced by the Amsterdam Treaty is in essence the legal drafting of the ’Luxembourg Compromise’.

It is apparent that in accordance with the intergovernmental character of the CFSP the exclusive participants of the decision-making process are the Council and the European Council. In the Council unanimous voting is the main rule and altough there are some exceptions, the treaties maintain the contructive abstention and the Luxembourg Compromise as a quibble for the Member States to get out of the application of decisions. The ’special passage clause’ of the Lisbon Treaty means a white hope for those who want to shift the CFSP from the intergovernmantal towards a closer type of cooperation. According to the clause with the unanimous decision of the European Council (without an intergovernmental conference) it is possible to change the unanimously to qualified majority within the Council.

3. Implementation of CFSP

According to the provisions of the Lisbon Treaty: ’’The common foreign and security policy is put into effect by the High Representative and by the Member States, using national and Union resources’’. Thus the treaty makes the implementation of the CFSP the common task of the High Representative and the Member States. The position of the High Representative (HR) was created by the Amsterdam Treaty in 1999. The Constitutional Treaty would have liked to rename it the Foreign Minister of the EU in order to emphasize the federal character of the EU, and inspire a closer foreign policy cooperation. After the fall of the Constitutional Treaty, the Lisbon Treaty maintained the former expression: High Representative. The HRhas a dual state: it is the president of the Foreign Affairs Council and the vice-president of the European Commision.The treaty wanted to abolish or diminish the rivalry between the Council and the Commission in connection with the external activities of the Union with this dual position.Thereby the HR is the vice-president of the Commission, the position of the European Commissioner forExternal Affairswas abolishedin the Commision.

The tasks of the High Representative:

• to make proposals and initiatives;
• to ensure implementation of the decisions adopted by the European Council and the Council;
• to represent the EU for matters relating to the common foreign and security policy. The HR conducts political dialogue with third parties on the Union’s behalf and expresses the Union’s position in international organizations and at international conferences.

It is apparent that the HR is present in all phases of the policy-making process of the CFSP: making proposals and initiation fall within her cognisance, as the president of the Foreign Affairs Council takes part in the decision-making process and finally she ensures the implementation of the CFSP together with the Member States. In November 2009 Cathrine Ashtonwas appointed to the position of the High Representative of the EU for Foreign Affairs and Security Policy. She has gotten a lot of critics among others because she didn’t have any practice in diplomacy before.

A new institution, the European External Action Service (EEAS) which was created by the Lisbon Treaty helps the High Representative in her complex activity. The composition of the treaty is considerably laconic in connection with the EEAS and it lays the charge on the Council to work out the details. The HR presented her first proposal on 10 March 2010, but it was amended several times because of the objections of the European Parliament. Finally the European Parliament approved the proposal on 9 July 2010 and then the Council adopted its decision on establishing the organization and functioning of the European External Action Service.[4] According to the decision EEAS is a functionally autonomous body of the European Union which is placed under the authority of the High Representative.

Tasks of the Service:

• to support the HR in fulfilling her mandate, to conduct the CFSP and to ensure the consistency of the EU’s external action;
• to support the President of the Commission, the Commission and the President of the European Council in their activity related to the EU’s external action.

The decision prescribes the obligation of cooperation for the EEAS:’’The EEAS works in cooperation with the General Secretariate of the Council and the services of the Commission, as well as with the diplomatic services of the Member States, in order to ensure consistency between the different areas of the Union external action and between these and other policies’’. The headquarters of the organization is in Brussels.The number of the staff members is approximately 5-6000 and they derive from the General Secretariate of the Council, the Commission and the diplomatic services of the Member States (two-thirds of the staff members derive from the General Secretariate of the Council and the Commission, and one-third derives from the Member States). The staff of the EEAS comprises a meaningful presence of nationals from all the member states.

The EEAS consists of a central administration and the Union delegations. The central administration is managed by a Secretary-General who operates under the authority of the HR. The central administartion includes directorates general and departments. [5] The Union delegations take from the role of the Commission’s delagations in third countries and international organizations. The decision to open or close a delegation is adopted by the HR, after consulting the Council and the Commission. Each Union delegation is led by a Head of Delegation who is responsible to the HR. The Heads of Delegation have the power to represent the EU in the country where the delegation is located, in particular for the conclusion of contracts and being a party to legal proceedings (Article 5).

Paragraph 9 of Article 5 emphasizes the obligation of cooperation in connection with the Union delegations too:’’The Union delagations work in close cooperation with the diplomatic services of the Member states. They, on a reciprocal basis, provide all relevant information.’’

The EEAS started its work on 1December 2010, but not without any conflicts. There was a debate over the authority of the HR and the EEAS. The representatives of the perfectionist standpoint wanted the HR to have authority from the commercial policy through development policy to security and defence policy, so practically the HR should have been competent in all external actions of the EU. However the Commission strove to save as muchcompetence as was possible. Finally the minimalist standpoint predominated so the activity of the HR focuses on the field of CFSP, and the EEAS didn’t become a so-called ’’second Commission’’ which would have grabbed all aspects of external relations.[6]

4. Summary

After the survey of the European Union’s CFSP from institutional and decision- making perspective, we can state that according to the intergovernmental character of this policy area, there is an unsymmetricaldivison of power and responibility between the EU and the Member States for the good of the Member States. The Lisbon Treaty, justlike the Amstredam Treaty, takes steps to increase the power of the EU (e.g. through the international legal personality of the EU; the strenghtening of HR’s status; creating the EEAS), but substantive advance hasn’t happened. The explanation is that Member States would like to retain the authority in foreign policy making, because it is one of the most if not the most important segments of their sovereignty.

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(2011. 09.14.)

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Hooghe, Lisbet-Marks, Gary: Multi-level Governance and European Integration Rowman-Littlefield Oxford 2001

Horváth, Zoltán-Ódor, Bálint: Az Európai Unió szerződéses reformja. Az Unió Lisszabon után hvgorac 2008.

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Trón, Zsuzsanna: A többszintű kormányzás koncepciójána megjelenése a strukturális alapok 1988-as reformjától az EU alkotmányáig

(2011.09.10.)

2010/427/EUCouncil Decisionon the establishing the organization and functioning of the European External Action Service

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(2011.09.12.)

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1

[1] (2011.09.12.)

[2]Commission of the European Communities: White Paper on European Governace Brussel, 2001. 10.p. (2011.09.12.)

[3]Committee of the Regions: White Paper on Multilevel Governace 6.p. (2011. 09.17.)

[4] Council Decision 2010/427/EU

[5] Directorates general: 1. DG comprising geographic desks covering all countries and regions of the world, as well as multilateral and thematic desks, 2. DG for administrative, staffing, budgetary, security and communication and information System matters, 3. the crisis mamagement and planning directorate, 4. the civilian planning and conduct capability, The European Unuon Military Staff and the European Union Situation Centre.

Departments: 1. legal department, 2. department for inter-institutional relations, 3. department for information and public diplomacy, 4. department for internal audit and inspections, 5. department for personal data protection.

[6] Kiss J., László: Európai Külügyi Szolgálat, avagy lehet-e a global payerből global player? 11.p.MKI-tanulmányok 2011/1