Jean Monnet Center at NYU School of Law


2. Institutional Engineering Will Not Do

To these (admittedly pragmatic) considerations on the dynamics of reform processes, one is tempted to add a word of caution on more fundamental issues, for much of the present discussion seems inspired by somewhat naïve views on the social impact of institutional arrangements.

The starting point of most analyses is a simple finding: there is widespread dissatisfaction with the way the EU system presently operates, which is perceived to be unduly complex and intransparent-hence, a desire to make it more intelligible even to a lay audience. To be sure, the analysis is largely correct. All three poles of the `institutional triangle' are in crisis. The European Parliament seems unable to decide how best to exploit its newly acquired powers, the Commission is far from having overcome the crisis of March 1999, and it is now widely recognised that there is no such thing as a Council: there are regular meetings of members of national governments, often acting without much co-ordination. Add to this, the eagerness of the European Council to intervene in day-to-day matters and the emergence of new actors such as the European Central Bank or the CFSP, and it will be easy to see why making sense of the actual functioning of the whole system has become an arduous task. It is, therefore, tempting to introduce more clarity, preferably by transposing institutions and techniques that have been fully tried and tested at national level to European level: an elected President, a fully-fledged government, an upper house, separation of powers, a constitution, etc..

This is precisely the weak spot in the reasoning. Many value judgements on the present EU system seem to rest on a fairly idealised vision of national governance. The complexity of the European system is implicitly opposed to the alleged simplicity of domestic political systems: reading such judgements, one might be led to believe that, at national level, there is a simple chain of command whereby all decisions can be linked to the supreme will of the people, and public authority is exerted in an orderly fashion, according to crystal-clear principles enshrined in a constitutional text, which is known to every citizen. The reality tends to be slightly more complex: even within unitary nation-states, patterns of governance can vary greatly from one policy area to the other. Foreign policy does not respond to the same kind of logic as domestic policies, nor does civil society exert the same degree of influence on defence issues as, say, on environmental policies, and the independence of central banks is a common feature to many countries. Likewise, there tends to be a fairly wide gap between the `dignified' part of public life-that which is codified in the constitution-and the way the system actually operates: unaccountable bureaucratic structures, obscure committees, and para-constitutional bodies (such as political parties, for instance) can, indeed, wield considerable power. In other words, even at state level the clarity to which many well-inspired critics of the EU aspire looks like a lost paradise, assuming, of course, that it ever existed. The complexity of modern societies has given rise to elaborate governance structures, and it is far from clear that constitutional schemes of any kind will allow a return to the mythical simplicity of a Locke or a Montesquieu.

Secondly, the legitimising power of institutions is very often over-estimated. Except for a few countries, perhaps, such as the United States, where there appears to be a widespread belief in the superior merits of national institutions, popular adhesion to a given form of institutional architecture cannot be taken for granted. The symbolic value of institutional change is, therefore, likely to be limited. Would British Euroscepticism really fade out, if the EU were to opt for the Westminster model of government? This seems rather unlikely: it is most likely that people would try to see what benefits they might derive from the change. Do they gain a greater say in the decision-making process? Is power (wherever it is located) under control?

The fact that institutions do not command immediate legitimacy may actually be good news for the European Union, which brings together countries with a wide diversity of political cultures, and cannot, therefore, simply replicate any national model. Yet, it leaves the Union with a mighty problem. If enhanced legitimacy is not likely to flow either from a simplified form of governance (which is out of reach) or from instant popular adhesion to a new institutional setting, how can the legitimacy of the present system be improved? Clearly, as Joseph Weiler has repeatedly argued,2 the EU cannot expect to receive the kind of emotional allegiance which derives from the sense of belonging to a community united by ethnic or linguistic ties, as the latter are notoriously absent at European level: it must demonstrate its usefulness day after day.

2 The Constitution of Europe (Weiler 1999).



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