A. APPROACH AND ORIENTATION - PHENOMENOLOGICAL AND NORMATIVE
The approach we take in this Study is not to try and come up with the optimal list or formula for dividing competences between the Community and Union and its Member States. From the Draft Treaty onwards such lists and formulae exist galore. We shall attach the most important in an annex to this study.
Instead, our principal approach is «phenomenological» — i.e. we try and understand how the issue of competences «plays out» in a polity such as the Community. What is the nexus between it and other governance structures and processes, and finally, to explore what can be done to try and anchor certain competences if that is what the political process wishes.
One major underlying dilemma of competences is the coexistence of two world views which in a certain sense are irreconcilable.
For one world view division of competences is functional, a matter of allocating the «best», «most efficient» «most rational» level of governance to the appropriate subject matter. Subsidiarity can be read as giving expression precisely to this view: It starts from a presumption that decisions should be as close as possible to those affected by them; but if better, more efficient, outcomes can be assured at higher levels of governance, that would not only be a condition for taking those decisions at that level but also a justification. The classical example is trans-boundary pollution: Since no one state can tackle the problem alone, it may, and should, be tackled at the transnational level.
The other world view is essentialist rather than functional. Boundaries between jurisdiction are considered as an expression of «inviolable» values. We can characterize this approach — distinct from the above version of subsidiarity — as one of Fundamental Boundaries. Fundamental Boundaries are like fundamental Rights. Everybody is in favour except when they get in the way of one’s pet project. The appeal of fundamental boundaries rests in two parallel roots. First as an expression of a vision of humanity which vests the deepest values in individual communities existing within larger polities which, thus, may not be transgressed. Smaller social units can suffer parallel oppression to individuals by stronger societal forces and, thus, must be protected. The second appeal lies in the simple fact that fundamental boundaries help prevent the aggregation of power in one level of government. It is thought that there is a per se value in preventing that type of aggregation.
All the non unitary systems with which this team is familiar — the European Union, the USA, Germany and Canada — suffer from split personality, trying to accommodate at one and the same time, with different dosages, the functional and the essentialist. Conflict and contradiction are inevitable.
Article 3b TEU is a perfect example of this. It tries both to define a fundamental boundary in its first paragraph and to give expression to the functional world view in its second and third paragraphs. But this reconciliation is a chimera: It is not simply that the first paragraph of Article 3b is extraordinarily porous. Comparative experience teaches us something that non lawyers find difficult to understand: The very nature of language, of law, and of legal interpretation suggests that practically no language in a constitutional document can guarantee a truly fundamental boundary between, say, the central power and that of the constituent units. The extent to which a system will veer towards one pole or another depends much more on the political and legal ethos which animates those who exercise legislative competences and those who control it. A common experience of many federal states is a story of framers animated more by the ethos of fundamental boundaries who are then met by organs of federal government, legislatures, executives and courts animated by functionalist instincts — after all, once you are governing you want to do it most efficiently. The results are well known. Where is the federal state in relation to which one can say that fundamental boundaries, which all profess to have, have withstood a determined effort at infiltration by central authority?
The key to competence management, then, is not to find the magical drafting formula or list which will be constitutionally guaranteed, but to understand the relationship between Competences, decision making and legitimacy and to see the extent to which these can be shaped. This is why we have opted for a phenomenological as well as a normative approach in this Study. We will be presenting below a «constitutional-institutional» history of the issues of competences in the EC. This is not the background to the analysis— this is the centre of the analysis. To understand how things shaped up is the key to understanding the options available to address or redress the problems the Union now faces in this area. Likewise, do not be tempted to skip the little stories such as that of the Italian Migrant Worker in Germany and his battle to get a scholarship for his young son under the canopy of European law. The story does not illustrate the principle: The story is the principle. The temptation to transgress and push and redefine jurisdictional lines and to infiltrate fundamental boundaries is always connected with a story and a good cause. To understand this narrative is to learn about the limits which legal drafting and Treaty provisions can and cannot achieve.
At the same time, though we reject the list approach and favour the functional and pragmatic method used in the Treaty, we offer two important additions to our phenomenological approach:
We examine the idea of lists and try and present what in our view is the most sophisticated approach to this.
We present a Normative Case Study — the Draft Directive On Tobacco Advertising. We use it to take our readers outside the abstract consideration of competences and to see how the issue shapes in relation to a concrete proposal. We argue strenuously that the Draft Directive — and others like it — should be regarded as Ultra Vires and we build all the legal arguments available for this view. We do this because in our view it is only against a proposal with the policy objective of which one agrees — that one can be serious about setting limits to Community competences. The Case Study is Advocacy — advocacy for a restrained approach within the flexibility offered by the Treaty. If our analysis is to be rejected than the Treaty would have to be modified in a more essentialist manner which in would, in our view, undermine its functionality.
Finally, it should be noted that the issue of Competences as a live political issue has erupted only in recent years — in the last decade or so — and that hitherto it was rather dormant. What accounts for this eruption? It is only by a detailed and sober analysis of the constitutional history of the Union that we will understand the present day legal and political anxieties.
European Parliament: March 1997