Résumé

Le futur système politique européen et son impact sur les gouvernements privés au niveau national

Les gouvernements d’intérêts par association privée (GIAPs) sont menacés au niveau national et faiblement encouragés au niveau supra-national par l’Acte Unique et le Traité de Maastricht. On commence seulement à entrevoir l’impact du marché unique et du principe de reconnaissance mutuelle sur les GIAPs les plus enracinés. Le résultat éventuel dépendra de la compétition entre deux principes de la prise de décision dans la Communauté : celui de la régionalisation et celui de la sectorisation, aussi bien que de l’émergence de systèmes plus directs de régulation politique.

Acte Unique Européen – Associations d’intérêts – Gouvernements privés – Intégration européenne – Politiques publiques – Régulation – Traité de Maastricht.

Summary

Existing private interest governments (PIGs) are definitely imperiled at the national level and only weakly empowered at the supra-national level by the Single European Act and Treaty of Maastricht. The impact of the integrated market and mutual recognition upon some of the most entrenched PIGs is just beginning to be felt. The eventual outcome will depend on competition between regionalization and sectoralization of Community decision-making, as well as the emergence of more direct modes of policy implementation.

European integration – Interest associations – Private governments – Public policies – Regulatory policy – Single European Act – Treaty of Maastricht.

On paper, as a formal agreement signed and ratified by twelve sovereign national governments, the Single European Act of 1986 placed in jeopardy all « private interest governments » within its twelve member states [1] . Its commitment to the mutual recognition of norms and standards threatened to unleash a process of competition between national regulatory systems, many of which are grounded in the practices of PIGs. Only if it could be shown (and argued convincingly before the European Court of Justice) that these practices were needed to serve some higher public purpose, e.g., to prevent fiscal evasion, to promote public health or morality, to protect the environment or to guarantee honest competition, and that they did not discriminate against products or services from other member states, would these semi-private, « off-loaded » arrangements for governing economic transactions be safe. Otherwise, the inexorable verdict of the market (not to mention those of the Court that originally established this principle in the Cassis de Dijon case of 1979) will eliminate the most inefficient of these practices and, eventually, compel all individuals and firms in all sectors and professions to converge towards the same rules of competition — presumably the one that is least restrictive and most cost-effective. Should this happen, the countries of Europe would be deprived of some of their most venerable socio-economic institutions, many of which have contributed significantly to sustaining their respective national versions of a generically European style of « organized capitalism ».

Before a change of such magnitude can occur, however, a great deal of political and legal manoeuvering will intervene. Not only are national governments likely to be increasingly inventive in discovering « higher public purposes » which justify retaining the quality controls, entry barriers, production quotas, market sharing, working conditions, price levels, fee-setting arrangements and standards of training imposed by their most prized PIGs, but the authorities of the European Community will no doubt find reasons for arguing that such an abrupt and extensive deregulation of the newly completed Internal Market would only lead to massive deception, fraud, mismanagement and other forms of « opportunistic » behavior and, therefore, they should be empowered to intervene in these vulnerable markets at the level of the Community as a whole. To the extent that these efforts of Eurocrats to expand their compétences coincide with the interests of well-placed capitalists in protecting their enterprises from « unfair » competition and « anarchic » local restrictions, the whole 1992 Project could be diverted from its original intent and exploited to produce a substantial « re-regulation » of market relations at the level of Europe as a whole. Rather than becoming extinct, private interest governments could even be given a new lease on life — either by being used at the national and sub-national level as agents for the implementation of EC directives, or by being transposed to the supra-national level in the form of Europe-wide regulatory agencies.

In order to assess which of these scenarios is most likely to impose itself, it is necessary to reculer pour mieux sauter, i.e. first to make an effort to understand what kind of a polity may emerge from the Single European Act (SEA) and its successor, the Maastricht Accord (MAA). Only then, once one has a clearer idea of the probable level and scope of Community authority, should it become possible to evaluate the future of private interest governance in Europe. For if we have learned anything from previous studies of the subject, it is that the formation, operation and viability of PIGs are closely associated with state authority. To the extent that the European Community (EC) presently lacks and/or never manages to acquire this ultimate capacity for controlling the movement of goods, services, people and capital over a given territory and for directly and legitimately exercising coercion to back it up, then, it will be permanently limited in its role as a sponsor or protector of whatever private governments it enlists to help it with these tasks.

Interpreting the Emergent Euro-Polity

Fortunately, the SEA's deadline of 31 December 1992 has past and it is finally becoming clearer what kind of polity is emerging from the European Community (EC). Most of the anticipated 282 directives were drafted by the Commission and approved by the Council of Ministers. At the level of transposition, or the conversion of EC directives into national law, progress has been much less rapid and more uneven. Nevertheless, no one can say that the Single Market Initiative did not advance quite far — perhaps, farther than the signers of the Act in 1985 intended or believed possible.

The subsequent agreements reached at Maastricht in December 1991 promised a significant extension of EC activity and even authority in two broad domains : monetary union and political cooperation. They also helped to clarify somewhat the rules of the game and institutional compétences of the emergent Euro-polity, and they have even given the outcome a new name : the European Union (EU).

The Single European Act came in with a whimper ; the Maastricht Accord with a bang. When the former was initialed in 1985 and ratified in 1986, even quite knowledgeable observers discounted its importance. There was very little in the Act that did not just repeat obligations previously assumed in the Treaty of Rome (if not acted upon) ; moreover, the member-states had a past history of signing sonorous agreements to « re-launch » the integration process that produced little effect. The national governments which signed the SEA seemed not to have been fully cognoscente of the full implication of its provisions, nor could they have foreseen the unprecedented response they evoked within the business community and, eventually, the public at large.

The Maastricht Accord has been much more closely scrutinized. Member-state participants took the elaboration of their respective national positions more seriously. It was preceded by a very complex structure of bi-lateral encounters between heads of state and ministers, as well as a steady flow of « white papers » and draft proposals from the Commission and two Inter-Governmental Conferences (IGCs) : one on Economic and Monetary Union, the other on Political Union, that had been meeting over the previous year. Considering all the hoopla among specialized « attentive elite », it was surprising how very little discussion there was in the public at large — before the signature of the Accord. Par contre, its ratification triggered an unprecedented avalanche of controversy — only narrowly passing referenda in several countries and generating serious difficulties in the ruling coalitions of several others. However much the MAA may eventually contribute to defining the future Euro-polity, it has not done little to increase the popularity of the EC/EU in the short run.

When compared with the « founding documents » produced by Constitutional Conventions or Constituent Assemblies at the national level, the MAA comes off very poorly. One looks in vain for a clear statement of purpose, a coherent institutional design or a stirring assertion of rights. Its several hundred pages consist mostly of numerous articles amending the original ECSC, EEC and EURATOM treaties, plus a hodge-podge of protocols. It is written in an incredibly turgid Euro-speak that defies interpretation [2] . Sections of it literally reek with assertions of national sovereignty, especially in its frequent mention of the role of the Council of Ministers and repeated (but not exclusive) insistence on unanimity voting. Its articles are liberally sprinkled with escape clauses : « ... these arrangements may provide for derogations where warranted by problems specific to a Member State » (Art. 8b) ; « This article shall be without prejudice to the exercise of responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security » (Art. 100c) ; « Without prejudice to Community competence and Community agreements as regards EMU, Member States may negotiate in international bodies and conclude international agreements » (Art. 109.5).

This ostentatious « statism », however, should not be allowed to obscure the very significant restructuring of functional and institutional Europe that the MAA could promote — unless, of course, its provisions remain a dead letter in the face of intransigent national resistance. Personally, I am convinced that the point-of-no-return has been passed and member-states will find it politically impossible to defect from the Community as a whole and increasingly difficult even to be « selective » in the implementation of specific rules and regulations. They may, however, seek to exploit specific exemptions and loopholes that the MAA has abundantly opened for them — and that is where national PIGs are likely to find their foothold.

The major « functional » accomplishment of the MAA consisted in its provisions with regard to monetary union. This is a spill-over beyond what was originally envisaged in the Treaty of Rome, although significant intergovernmental cooperation on this issue has been going on since 1972 when the « Snake » was created and especially since 1979 when eight of the then nine member-states formed the European Monetary System (EMS). What is different about the evolving European Monetary Union (EMU) is not only that it establishes a clear set of deadlines for attaining a much more ambitious goal — nothing less than the creation of a common currency with a critical decision (by qualified majority vote !) to come in 1996 — but that it does so through the creation of new Community institutions : the European System of Central Banks (ESCB) and, eventually, the European Central Bank (ECB) with very substantial resources and competences, and it specifies in rather considerable detail the criteria which have to be met in order to bring about nothing less than the convergence of macro-economic performance among the participating countries. If successful, member-states will have « pooled » some of their most sovereign rights by 2001 : to issue their own money ; to run budgetary deficits ; to borrow as much as they please (or can) ; to set their own interest rates and targets for monetary growth ; to alter their rates of foreign exchange — in effect, to pursue any macro-economic policy independent of the other participating member-states. There are « opt-out » and « ease-out » clauses that can be used either to refuse to join or to force a member to derogate, and it remains to be seen whether individual countries will have the capacity to use the former or whether a qualified majority will have the courage to apply the latter. Nevertheless, once they are locked into Stage III of the EMU, it is difficult to imagine how any state could go back to issuing its own currency or, even, to improving its competitive market position through effective and exclusive national macro-economic policies. Nota bene that this could shift the burden of industrial adjustment and export promotion to the meso-level, either sectoral or regional — and this is where most national PIGs have always operated.

The MAA also encourages the Council of Ministers to take initiatives in other issue arenas by qualified majority voting that have either not been dealt with in the past or that have long remained dormant : public health ; education ; consumer protection ; the promotion of « trans-European networks » in telecommunications, transport and energy, and the development of small and medium-size firms [3] . It places a higher threshold, i.e. unanimity, on its getting involved with such items as environmental protection, industrial policy, energy planning and taxation. Almost all of these policy arenas are subject to heavy regulation at the national level, some of it through PIGs. Depending on the voting criteria and the implementation requirements, the EC could make extensive indirect use of these arrangements if and when it expands its compétences in these domains.

Table 1

Issue arenas and levels of authority
in Europe : 1950-2001

Code :
                    1 = All policy decisions at national level
                   2 = Only some policy decisions at EC level
                   3 = Policy decisions at both nat1/EC level
                   4 = Mostly policy decisions at EC level
                   5 = All policy decisions at EC level

Table One seeks to describe the dynamics of the expansion of EC authority across the full range of policy arenas. Using a measurement device invented by Lindberg & Scheingold (and the scores they proposed for the « foundational period » from 1950 to 1970), estimates have been entered of the impact likely to be produced by the SEA as of the end of 1992 and of the probable effect of the MAA by 2001 — if it is implemented on schedule by the member states.

The scores in Table One confirm that there is not an issue area that was the exclusive domain of national policy in 1950 and that has not somehow and to some degree been incorporated within the authoritative purview of the EC/EU. Needless to say, this is most evident in economic matters, but one finds « 4s » (mostly policy decisions at the EC level) and even a « 5 » (all policy decisions at the EC level) in the allegedly more sensitive politico-constitutional and international relations/external security areas by 1992-2001.

There are, however, three noticeable disappointments at the core of the Common Market : transportation, energy and communications. All would seem intrinsically promising from a neo-functional perspective ; indeed, they collectively facilitate the interdependence between other substantive policy areas. And yet, according to the scores in Table One they had barely been touched by 1970, and were expected to raise to the status of « only some decisions at the EC Level » by 1992. Energy, an intersectoral and, one would think, interspatial commodity par excellence, was judged to remain essentially in national hands through 2001 — along with such other laggards as health, social welfare, political participation and police & public order !

The great leaps forward in the future are anticipated in the mobility of persons and workers (a product of the SEA), money & credit, foreign exchange & loans, macro-economic policy-making (all obviously as a result of EMU), and the coordination of economic-military assistance to foreign countries, diplomatic initiatives, membership in international organizations and matters of external security (presumably based on an optimistic assessment of impact of the MAA clauses on political cooperation and defense policy).

But for someone seeking to peer over the horizon at the future Euro-polity, the most interesting aspects of the MAA cannot be glimpsed from the probable range of activities the Community or Union will be performing in 2001. Rather, they are hidden in its excruciatingly abstruse provisions about institutions and decision rules. In its first paragraph (Art. A), the MAA announced that it was establishing a new entity : the European Union (EU), never subsequently defined but somehow more ambitious and overarching since it contains the European Community (EC) and will be « supplemented by the policies and forms of cooperation established by this Treaty ». Repeating the opening phrase of the Treaty of Rome, it committed its members to « an ever closer union among the peoples of Europe » [4] , and then added the dependent clause : « where decisions are taken as closely as possible to the citizens ». This is a indirect reference to the latest buzz-word in Euro-speak : subsidiarity [5] . In other words, whatever its functions, the EU is to be a dispersed polity where most decisions will presumably be taken (and not just implemented) by other than central governmental authorities. It hints that such a system might have several levels and even that sub-national, i.e. local, provincial or regional, units might be favored over national states. In common parlance, such a system is often called « federalist », but apparently the United Kingdom vetoed any mention of this term in the MAA.

These common provisions for the EU went on, however, to hint at several other features which sound more « state-like ». For example, they announced the creation of a new « citizenship of the Union », the intention « to assert its identity on the international scene », to strengthen « economic and social cohesion » and « to maintain in full the acquis communautaire and to build upon it » (Art. B) [6] . They promised the creation of « a single institutional framework to ensure the consistency and continuity of ... actions » and specifically called attention to the EU's eventual « actions as a whole in the context of its external relations, security, economic and development policies » (Art. C). If one took these pretensions seriously and ignored the caveats [7] , one might be tempted to conclude — erroneously — that a supra-national state was being founded.

What actually seems more likely to emerge from the multiple (and by no means coherent) provisions of the MAA is something quite novel — and, perhaps, unexpected. How ironic it would be if the Eurocrats — normally so attentive to identifying unintended consequences and so skillful at turning them into an expansion of their compétences — should discover that their preferred design for the Euro-polity would be the accidental victim of their own efforts ! For the Maastricht Accord opens the way for the institutionalization of diversity — for a multitude of relatively independent European arrangements with distinct statutes, functions, resources and memberships, not coordinated by a single central organization and operating under different decision rules. No doubt, the Commission will work hard to defend the acquis communautaire, a single-track and synchronized process and its own concentric role, but this may not be an easy task given the changing external context within which the Euro-polity is emerging.

The MAA abounds in potentially partial and eccentric arrangements. For example, it calls for a « third stage » European Central Bank with very considerable independence, not only from national governments, but also from the EC/EU itself. The field of monetary policy has long pioneered in variable geometry when the EMS went ahead without the participation of several member states, including a major player, the United Kingdom, until 1990. At the present moment, several countries do not participate in it, although they are all formally committed to do so — eventually. According to the MAA it will be possible to move ahead to the ECB in Stage III by a qualified majority vote and with as few as seven members. Countries whose economic performance does not meet the exacting standards of convergence will be declared « in derogation » and prohibited from participating in the decision. The United Kingdom asked for a special dispensation and can decide to « opt out » during Stage II.

Social policy is another arena in which the MAA found it necessary to improvise. Again, the problem stemmed from British intransigence. The Conservative government opposed instating worker rights and welfare provisions through European measures which had been removed from its national practices by the « Thatcher Revolution ». A last minute solution was cobbled together to allow the other eleven member states to « opt in » for policies which will be decided by qualified majority in a reduced quorum, i.e. without British participation, if they so choose. In a separate protocol, the signataries pledge to use « EC institutions, procedures and mechanisms », but it is not inconceivable that they might eventually decide to establish a separate European Social Regime, say, for the administration of common pension or unemployment funds. In any case, an unusual precedent has been created that could be applied in other issue arenas.

In the field of foreign policy, for example, the Accord calls for « systematic cooperation », but places it outside formal EC institutions and the Treaty of Rome. It even sets up a new permanent « Political Committee consisting of Political Directors », a sort of embryonic Foreign Office, in Bruxelles to which « the Commission shall be fully associated » (Art. J.8) — but not in control. In a parallel fashion, the member states resorted to working through the Western European Union, an organization existing since 1954 with its headquarters in Paris for defense issues [8] . The WEU will be opened to new members (but none will be compelled to join) and eventually become the « defence component » of the EU, but its relation to existing EC institutions seems very loosely defined — and deliberately so.

One could go on with other potentialities for partiality and eccentricity in the MAA : (1) a new advisory Committee of Regions is created with representatives from (unspecified) sub-national units (Art. 198a) which, when combined with the promise of a substantial increase in funds for economic and social cohesion (Annex I, Protocol 15), could develop into a circuit of influence bypassing the national level of aggregation ; (2) the European Parliament is granted important new powers : to form Committees of Enquiry (Art. 137b), to request that the Commission take specific initiatives (Art. 137a), to receive petitions from individual European citizens and « legal persons » (Art. 137c), to appoint an independent Ombudsman (Art. 137d) and, most significantly, to enter into an exceedingly complex co-decision procedure (Art. 189b) for a wide range of issues whereby, should the Euro-deputies persist by an absolute majority in rejecting a Council decision, even a unanimous one, they can effectively veto its passage ; (3) the signatories « invite » the European Parliament and the member state national parliaments to form and meet as often as necessary in a new representative assembly, the Conference of the Parliaments or les Assises [9]  ; (4) an EU-wide organization for police cooperation (Europol) is established, as well as an un-named « Co-ordinating Committee » consisting of senior national government officials which is empowered to make recommendations for action in such highly sensitive areas as asylum rights, visa requirements, immigration policy, drug trafficking, commercial fraud, judicial cooperation in civil and criminal matters, and terrorism.

The closest direct approximation in the MAA to private interest governance emerges from the eleven member, « opt-in » agreement on social policy. Having set as their objectives nothing less than : « the promotion of employment, improved living and working conditions, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion », the co-signatories first agreed to implement only measures that « take account of the diverse forms of national practices, in particular in the field of contractual relations (but also that respect) « the need to maintain the competitiveness of the Community economy » (Annex I, Protocol 14, Art. 1). Some of the measures that satisfy these potentially contradictory imperatives are subject to qualified majority voting ; the more important ones will require unanimity (Arts. 2.2 & 2.3).

Then comes the first of two oblique references to PIG-like arrangements : « A Member State may entrust management and labour, at their joint request, with the implementation of directives ... (and, if these social partners agree in time), « the Member State concerned (will be) required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that Directive » (Art. 2.4). In short, national governments are committed by treaty to backstop with their authority whatever specific implementation measures are negotiated between the associations representing capital and labor [10] . They are not, however, required to off-load their responsibilities in this fashion.

The second provision has an even more « neo-corporatist » aurora about it and could represent a major innovation in EC decision-making procedures. The Commission commits itself to promoting a dialogue between management and labor and to ensuring their balanced support in drafting social policy initiatives (Art. 3.1). To this end, it agrees to consult these social partners before submitting any proposal to the Council (Art. 3.2) and to offer to them the opportunity to pre-empt eventual Community action by coming to a collective private agreement among themselves (Art. 3.3) [11] . If, within nine months, management and labor do reach such an agreement, it can either be implemented through existing national practices in the Member States or, « at the joint request of the signatory parties », it can be converted by a decision of the Council into a binding Community directive. The draft version of the MAA which I have consulted has a strange footnote at this point (the only one in the whole Treaty) in which « the eleven High Contracting Parties » seem to have realized the political implications of following the private route toward ratification. This reservation collectively denies any obligation on the part of national governments to apply such agreements directly, to transpose their obligations into eventual national legislation, or to amend laws in force to facilitate their implementation !

The above items were not listed because they are all likely to make some major contribution to the « institutionality » of the EC/EU. Some are clearly slated for political oblivion ; others may remain only as minor nuisances. The above-noted provisions opening the door ever so slightly for private governance and interest concertation depend very much on the willingness of European business interests to enter into negotiations at the class or sectoral level — and there is little indication so far of this. Moreover, on the first occasion when their peak association, UNICE, dared to sign an analogous agreement, it was immediately denounced by several member associations and its provisions declared null-and-void at the national level.

Together, however, these features of the MAA do amount to a substantial increase in the complexity of both the systems of representation surrounding the Euro-polity and the levels of decision-making within it. A greater variety of non-state actors are going to be drawn into some regular (if not always very potent) relation with the EC/EU and it is going to take the coordination of more collectivities to produce EC/EU policies. Sub-groups of member states will be able to threaten more plausibly than before to go ahead on their own — within or even outside the Community framework. Individual countries in unanimity situations and even minimal blocking coalitions in qualified majority ones may become more reluctant to insist on their « sovereign rights ».

Together, these potentialities for partiality and eccentricity could circumscribe the role of member states well beyond the formal treaty prescriptions that still assign a preponderance to the European Council or the Council of Ministers simply because national government leaders and representatives will have to make concessions — sidepayments, if you will — to various entities that can obstruct the passage even of the measures they unanimously want or imperiously need. In some cases, the only power of these semi-independent bodies is to clog the channels with rival proposals or to delay in issuing their approval, but European Parliament's newly acquired capacity to veto (and not just hold up) directives could well be crucial in this regard, especially if the less powerful bodies can learn how to cooperate with it.

The MAA may have changed the trajectory of European political integration and opened up a range of possible (but not ineluctable) outcomes that were not previously apparent to or desired by either national or supra-national actors. Instead of the coherent system of checks and balances long awaited by Euro-federalists, it could encourage the development of a hybrid arrangement for presences and absences in which member states, specific industrial sectors, sub-national polities and supra-national organizations will be able initially to pick and choose the obligations they prefer and only later discover which are compatible with each other.

Speculating about the Future of Private Governance

Private interest governance is, therefore, definitely imperiled at the national level and only weakly empowered at the supra-national level by the SEA and MAA. Some egregious cases of the former — for example, the British Milk Marketing Board — have seen the handwriting on the wall and taken steps to change their statutes and practices [12]  ; whereas, less visible and more pervasive ones such as the German systems of Berufsgenossenschaften, Innungen and Handwerkkammern seem likely to survive more-or-less intact [13] . The impact of mutual recognition upon the professions where some of the most entrenched national PIGs are to be found is just beginning to emerge. By abandoning the previous attempt to integrate each profession by harmonization, the Community has in effect foregone the opportunity to create Euro-level PIGs for the certification of lawyers, accountants, engineers, surveyors, physicians, etc. The Directive on a General System for the Recognition of Higher Education Diplomas passed in 1988 and effective in 1991 does not challenge the role of national licensing bodies, but only requires them to admit members from other EC countries — under certain conditions and with some major exceptions. In effect, the Community sets minimal general standards and leaves the actual granting of specific professional titles and rights to practice to national authorities, whether they are PIGs or state agencies [14] .

The most impressive experiment at the supra-national level — indeed, the only bona fide example of a Euro-PIG in the Community's previous history — seems headed for oblivion : in part, a beneficiary of more favorable market conditions ; in part, a victim of the liberalizing, deregulating thrust of the SEA. Faced with protracted overproduction in the steel industry, the Community first tried voluntary restrictions on output (1974-80). When this failed, a « manifest crisis » was declared by the Council of Ministers and the European Confederation of Iron and Steel Industries (EUROFER) was encouraged to become a « cartel of cartels » and to play a major role in the re-structuring of the industry via fixed prices and mandatory quotas. Action at this level was facilitated both by the exceptional powers conferred upon the High Authority (later Commission) by the treaty establishing the ECSC and by the fact that firms in this sector were already organized in national PIGs. Even so, it proved difficult to prevent governments from continuing to grant subsidies and firms from engaging in a good deal of « opportunistic behavior ». The whole experience is not regarded as one of the EC's more successful ventures in market management, and no one seems anxious to prolong or repeat it [15] .

When it came to an effort to govern the sector of artificial fiber production, a different modality was adopted, both because the EC lacked special supra-national compétences and because the industry had not been previously organized into PIGs at the national level [16] .

The one area of private governance which has definitely been given a big boost by the SEA is normalization or the setting of technical standards. The Act encouraged a « new approach » to this problem. Instead of attempting to establish through lengthy negotiation among national experts and formal international agreement all the excruciating details involved in defining a given product, Community authorities would only promulgate regulations or directives with a limited set of « essential requirements » and shift the balance toward private activity. Much of this takes place in European-level committees composed of national PIGs. The Comité Européen de Normalisation (CEN) and the Comité Européen de Normalisation Électrotechnique (CENELEC) are the most visible and venerable of these and their activity has boomed in recent years. Alongside them, a number of new European standard-setting associations have been formed to deal with specific sectors and they have individual firms or public enterprises as direct members. For example, the European Telecommunications Standards Institute (ESTIC) is a joint venture of national PTTs, private users and equipment manufacturers that has been working to make telecommunications networks compatible across Europe. The resultant standards may not all be legally compulsory — i.e. converted into binding national norms — but they can be practically indispensable since only be complying with them can producers be assured of secure access to the Internal Market. And only the Commission decides whether a given committee or association is to be granted the quasi-authority of issuing Euro-norms [17] .

Giandomenico Majone may have been unique in arguing that, despite protestations to the contrary, « a greatly accelerated growth of regulation is to be expected with the completion of the Internal Market » [18] . Even before the SEA and in the absence of any specific provisions in the Treaty of Rome, the EC had already produced some 200 regulations in the area of environmental protection alone. A similar, if more contentious, effort has long been underway in generating Community norms that define the quality of food and beverages and protect the consumers of these products — as can be testified by the periodic disputes between member states over such things as « pure beer », « mad cows », « uncontrolled hormones », « irradiated food », botulism, Salmonella, and so forth [19] . As we have seen above, the MAA explicitly mandates the Commission and Council to take initiatives in monetary union, social policy, consumer protection, public health, education, environmental standards and the promotion of trans-European networks of communications, transport and energy. Most of these are issue arenas that involve a heavy commitment to public regulation within each member state, although not necessarily a heavy reliance upon private governance. As the EC moves into them, it may be tempted to off-load its compétences to such bodies in order to reduce transaction costs, improve legitimacy or ensure better compliance. What is becoming clearer with each successive directive coming out of the Commission and passing the Council, however, is the bien-fondé‚ of Majone's Paradox that attaining a less regulated Internal Market will require a great of regulation !

Giandomenico Majone's insight does not rest merely on a projection of national policy-making styles to the supra-national level. He observes that the Eurocrats, with their limited financial and personnel resources, is likely to find that regulation offers a relatively cheap and painless way to expand the scope and level of their authority. The direct, administrative, costs are born mainly by member governments and the indirect ones are shifted to firms and, ultimately, to consumers. He might be pleased to note that la géométrie variable and the « eccentricity » subsequently introduced by the MAA makes such a strategy even easier to take — and spreads its effect across a more dispersed set of institutions.

« But this is only part of the explanation. Another important element is the interest of multi-national, export-oriented industries in avoiding inconsistent and progressively more stringent regulations in various EC and non-EC countries. Community regulation can eliminate or at least reduce this risk [20]  ». Capitalists from large enterprises, in other words, may have their own incentives for allying with Eurocrats. With the shortening of product cycles and increasing costs of research and development, technical norms and compatibility specifications have become an important component of competitiveness, with significant advantages going to those firms and countries that control them. Only if Europe has a unified capacity to impose its own regulations can it expect to use them to discriminate against Japanese and American competitors — and not be victimized by their efforts to do the same. Also, European producers can potentially save on transaction costs by obtaining « one-stop » certification for their products and avoid being « whipsawed » by national and sub-national authorities trying to impose its own norms. Through comitologie, they have long enjoyed privileged access to the Commission and have every reason to believe that its regulatory effort will be more « technical » and « apolitical » than what they can expect elsewhere, especially since the norms adopted will depend almost exclusively on information provided by them [21] . Small and medium size firms operating strictly in internal markets will, no doubt, view the overriding of national and local protective regulations — and the decline in the authority of the PIGs that monitor and implement them — with alarm, but they are not likely to have the political clout to prevent such an outcome.

En guise de conclusion

It is tempting to interpret the EC's institutional future in terms of a contest between two competing organizational principles, each reflecting different modes of interest representation in society. For all modern politics is rooted in representation of some form. Where the units of authority have grown larger in area and population, and more heterogenous in social and economic composition, rulers and ruled have relied increasingly on regularized mechanisms of indirect participation to communicate with each other. Grosso modo, these linkages are aggregated along either territorial or functional principles. Various intermediaries — parties, associations, movements, networks, clienteles, groups of notables, levels of government — identify with the constituencies formed by these principles and re-present their interests vis-a-vis authorities. It is this mix of territorial and functional constituencies, along with their corresponding relations of authority and accountability that defines the type of polity.

And the emerging Euro-polity is no different. It began with a dual bias : (1) toward channeling the representation of territorial interests exclusively through the national governments of member states ; and (2) toward privileging the development of functional representation through trans-national, European-level interest associations. The neo-functionalist strategy adopted by Jean Monnet et Cie conceded the former as an inescapable (if eventually mutable) feature of the international system and sought to build gradually and surreptitiously upon the latter. After some initial successes, this failed for a variety of reasons and the ensuing period of « intergovernmentalism » from the mid-1960s to the mid-1980s saw even the functional interests being transmitted largely through national territorial channels [22] . Since then, the mix of functional and territorial constituencies/authorities at various levels has shifted significantly within the EC/EU, giving rise to the present uncertainty about the eventual outcome.

For private governance to thrive, even to survive, in the post-1992 Integrated Market, the functional principle must predominate in the form of a deep-rooted sectoralization of public policy. The basic administrative structure of the Commission with its 23 Directorates General, most of which consist of sectors and all of which operate in considerable autonomy from each other, certainly encourages this outcome [23] . Nevertheless, the previous efforts at sectoral crisis management such as EUROFER have not been particularly successful and there is little sign of enthusiasm for repeating the experience. Leaving aside the personalities of the Commissioners involved and the clout of their respective national governments (whose interests they are not supposed to reflect), the outcome of this intra-bureaucratic struggle between « vertical » policies that are segmented by sector and « horizontal » ones that do not target or benefit any specific industry or product may well hinge on two intervening conditions. The first is the extent to which the direct implementation capacity of the Commission remains limited and, hence, its reliance on national agencies increases. Will these public regulatory bodies and/or private self-regulatory associations prove to be reliable interlocutors for the Eurocrats in the future, or will the Eurocrats turn increasingly towards direct transactions with prominent Euro-firms and alliances of firms ? The second hinges on the context of external security. Any effort to improve competitiveness through concerted, Europe-wide industrial policies would certainly meet with strong resistance from the United States and Japan. To the extent that their protestations — in GATT or elsewhere — could endanger the global trade regime and even affect the political standing of the EC and its member states during a delicate moment when the « New World Order » is being put together, the risk might seem too great.

The contrary tendency would be toward a regionalization of Community policy. So far, the indicators for this are weak. The Social and Structural Funds were doubled under the SEA, and increased again an indeterminate amount under the MAA, but they are still relatively insignificant. Moreover, the direct representational links between the Commission and sub-national political units are still informal, although the inclusion of a provision in the MAA for a « Comité des Régions » hints at their expansion in the near future. Enlargement is bound to increase sensitivity to spatial inequalities within the EC/EU, if only because the prospective Eastern members will greatly enhance the range of variation in economic performance and, almost certainly, compete with the existing recipients of regional funds. The reaction of the Greeks, Portuguese, Spaniards and Irish to these competing claims, as well as the diminished willingness of rich Northerners to finance such solidaristic transfers, will in turn have an impact on the major variable determining whether sectoralization or territorialization will predominate beyond 1992 : politicization. As the controversiality of EC/EU decisions inevitably increases, it could mobilize class, sectoral or professional categories across national and sub-national demanding special exemptions or, inversely, it could find its expression in those territorial constituencies that are systemically disadvantaged by the less impeded flow of goods, services, capital and labor. Needless to say, the most explosive situations could develop out of a combination of the two, i.e where industries suffering dramatically from increased regional or global competition are concentrated in a very few municipalities, provinces or regions.

Obviously, it is too soon to judge which of these major trends will predominate in the difficult aftermath of MAA ratification. It should be noted, however, that even if sectoralization reasserts itself during the 1990s, this might not provide firm guarantees for the health and safety of private interest governance. PIGs are just one of several ways in which sectors can be governed — and, by no means, the easiest to establish and sustain [24] . Whether considered in terms of the potential savings in transaction costs or the potential return on policy influence, this mechanism for self-enforcing governance depends critically upon the prior existence of closed social networks as well as the promotive efforts of public authorities. Even if Community officials were to decide (and member governments to agree) that European-level PIGs were an attractive solution for the problems of specific sectors, they would still have to cope with considerable variation in how these interests were organized at the national level. With few exceptions — for example, the dairy industry or the accountancy profession — the existing associational structures would have to undergo very substantial changes before they could participate symmetrically in a Community-wide arrangement. Faced with the sheer complexity of engineering such a change, and the deficiencies of relying on national PIGs with asymmetric capacities for governing the behavior of their members, the EC/EU seems more likely to rely upon direct implementation via an American-style Independent Regulatory Agency rather than off-load its responsibility to self-governing agents as so many European national governments have done in the past.

L’auteur

Professeur à l’Université de Standorf. Auparavant, à l’Université de Chicago et à l’Institut universitaire européen. Auteur de :

— Private Interest Government, London, Sage, 1985 ;

— Transitions from Authoritarian Rule : Tentative Conclusions about Uncertain Democracies, 4 vol., Baltimore/London, The John Hopkins University Press, 1986 ;

— « Sectors in Modern Capitalism : Modes of Governance and Variations in Performance », in R. Brunetta and C. dell’Aringa (eds), Labour Relations and Economic Performance, London, Macmillan, 1990, p. 3-39 ;

— « Organized Interests and the Europe of 1992 », in N. J. Ornstein and M. Perlman (eds), Political Power and Social Change. The United States Faces the United Europe, Washington D.C., The AEI Press, 1991, p. 46-67 ;

— « Representation and the Future Euro-polity », Staatswissenschaften und Staatspraxis, III, 3, 1992, p. 379-405 ;

— Governing Capitalist Economies : Performance and Control of Economic Sectors, New York, Oxford University Press, 1984.

* Sections of this paper have been taken from a more comprehensive study : « Interests, Powers and Functions : Emergent Properties and Unintended Consequences in the European Polity », to be published in Peter Lange & Gary Mark (eds.), The Emerging Euro-Polity, New York, Cambridge University Press (forthcoming).

** Stanford University,
Department of Political Science, Building 160, Room 161A, Stanford, CA 94305-2044,
Etats-Unis.

1. For the purposes of this article, « private interest government » (PIG) is defined as a relatively autonomous, non-profit organization based on any social, economic or professional category that generates norms binding on its members and controls their subsequent behavior in the pursuit of self-interest within constraints imposed by public policy objectives. Normally, these organizations acquire their authority and are restricted in their autonomy by an act of devolution from a pre-existing state, i.e. they are granted an explicitly public status or « charter ». Often, but not always, this status is monopolistic and compulsory since it is not possible for an individual or firm to operate in the relevant category without being de jure or de facto a member of that specific and unique organization. A la limite, it is possible to imagine purely private organizations that could emerge under special historical circumstances and acquire sufficient legitimacy to control member behavior that they would require neither a devolution of authority from the state nor a formal protection of their monopolistic-compulsory status, but that would be the exception not the rule. See Wolfgang Streeck and Philippe C. Schmitter (eds.), Private Interest Government : Beyond Market and State, London, Sage, 1985, especially p. 1-29, for a more detailed exposition of this approach.

2. Reading it, one sympathizes with De Gaulle's disdainful reference to supranationality for leading to the creation of a new European language : « Volapuk intégré ».

3. It also « warns » the member states that by 1996 at the latest, three other policy fields will be added to the current listing : civil protection, energy and tourism (Annex II, Protocol 2).

4. The reference to « peoples » rather than « states » is unusual — and significant since it opens up novel possibilities for an eventual shift to constituencies other than those defined at the national level by existing states. Needless to say, none of the founding treaties or their amendments make an effort to define what « Europe » is.

5. Which is (more-or-less) defined elsewhere (Art. 3b) as follows : « In areas which do not fall in its exclusive jurisdiction, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member State and can, therefore, by reason of the scale or effects of proposed action be better achieved by the Community ». Who should determine what « sufficiently » means and what criteria would be applied to estimate the economies of scale or the extent of externalities is presumably left to an unspecified political process.
For a particularly stimulating discussion of the ambiguities of subsidiarity, see Klaus Gretschmann, « The Subsidiarity Principle : Who is to do what in an Integrated Europe ? », in Subsidiarity : The Challenge of Change, Proceedings of the Jacques Delors Colloquium, European Institute of Public Administration, Maastricht, 1991, p. 45-61.

6. The acquis communautaire is one of the most sacred of EC, now EU, concepts. It refers to the sum-total of obligations that have accumulated since the founding of the ECSC and are imbedded in innumerable treaties and protocols. So far, any state which applies to the EC/EU is expected to accept as a matter of principle the responsibility for fulfilling all these obligations, although in the actual negotiations for entry it is possible to delay the application of some of them. It is expressed designed to prevent any prospective member from « shopping around » for its own mix of obligations.

7. For example, Article F states that « the Union shall respect the national identities of its Member States, whose governments are founded on the principles of democracy » and « fundamental rights ... as they result from the constitutional traditions common to the Member States ».

8. The MAA transfers the headquarters of the WEU to Bruxelles.

9. Helping to fill the « democracy deficit » by bringing together the national and supra-national parliaments may only create greater political problems, as was illustrated by the first seating of the Assises in Rome in December 1990 : « The more the European Parliament tried to demonstrate how many prerogative the national parliaments had already lost, the more some of these parliaments became aware of their present situation and tried to restore them, not by giving more powers to the European Parliament, but by gaining a stronger hold on their national governments ». Karlheinz Neunreither, « The Fundamental Choice for the European Community : Federation, Confederation or Subsidiary System ? », paper presented at the XVth World Congress of IPSA, Buenos Aires, July 21-25, 1991, p. 10.

10. The following paragraph (Art. 2.5) also frees up policy space for private governance by allowing any Member State to maintain or to introduce « more stringent preventive measures compatible with the Treaty », i.e. that do not manifestly discriminate against other EC producers.

11. This practice of obligatory, prior consulation of interest associations by drafters of policy initiatives seems to have been invented and « constitutionalized » in Switzerland where it is called « Vernehmlassung ».

12. Cf. « UK milk board submits plan to become co-op », Financial Times, April 15, 1992. The article makes it clear that the shift to « a single voluntary co-operative with pooled prices » which took two years to put together will have to be discussed « with the dairy trade, MAFF (the Ministry) and the EC ». The Milk Marketing Board for England and Wales, along with analogous arrangements in the Netherlands, Austria and Switzerland, has emerged as a sort of « archetype » of private governance. Created in the 1930s in response to market failure, this semi-public intermediary association has exercised off-loaded responsibility for governing the price and quantity of milk for over 50 years — until its recent discomfiture. Wyn Grant, « Private Organizations as Agents of Public Policy : the Case of Milk Marketing in Britain », in W. Streeck and P. Schmitter (eds.), p. 182-196. Also the chapters by Franz Traxler, Peter Farago and Frans van Waarden in the same collection.

13. Jurgen Grote, « Small Firms in the European Community : modes of production, governance and territorial interest representation in Italy and Germany », in J. Greenwood, J. R. Grote and K. Romit (eds.), Organised Interests and the European Community, London, Sage, 1992, p. 119-172.

14. Louis H. Orzack, « The General Systems Directive : Education and the Liberal Profession », in L. Hurwitz & C. Lequesnes (eds.), The State of the European Community : Politics, Institutions, and Debates in the Transition Years, 1989-1990, London, Longman, 1990.

15. Cf. Thomas Grunert, « Decision-Making Process in the Steel Crisis Policy of the EEC : Neocorporatist or Integrationist Tendencies ? », in Y. Meny & V. Wright (eds.), The Politics of Steel : Western Europe and the Steel Industry in the Crisis Years, 1974-1984, Berlin & New York, De Gruyter, 1987, p. 222-308.
After having encouraged EUROFER's private governance of steel production and quietly tolerated the efforts of the « Z Club » to control the market in stainless steel during the 1980s, the Commission has more recently shifted to an attack on cartellization in this sector. It launched an inquiry into the Z Club in July 1990 and, in April 1991, its officials raided the offices of four major manufacturers of construction steel and two industry trade associations to gather evidence on bid-rigging activities. « Inquiry signals change in Commission's steel policy », Financial Times, April 15, 1991.

16. Patrick Kennis, « Industrial Re-structuring : the Case of the Chemical Fiber Industry in Europe », EUI Working Paper, No. 86/91 (1991). Also his dissertation : The Social Construction of Industries : Collective Action among Chemical Textile Firms in West Germany, Italy and Great Britain, 1968-1985, European University Institute, Florence, May 1989.

17. What little I know about this murky world of Euro-normalization I owe to Jacques Pelkmans, « A Political Economy of EC Technical Regulation », paper presented at the ECSA Workshop on « The EC After Maastricht », Chicago, March 26-27, 1992.

18. Giandomenico Majone, « Regulating Europe : Problems and Prospects », Jahrbuch zur Staats- und Verwaltungswissenschaft, vol. 3, 1989, p. 159.

19. David Vogel, « Protective Regulation and Protectionism in the European Community : The Creation of a Common Market for Food and Beverages », paper presented at the Biennial Conference of the ECSA, George Mason University, May 1991.

20. Majone, « Regulating Europe... », p. 167.

21. I have learned a great deal from a case study of the evolving interest of large firms in regulation at the European level by Keith A. Darden : « Organized Capitalists in Disorganized Capitalism », seminar paper, Stanford University, Department of Political Science, October 31, 1991. Darden focuses on the Conseil Européen de la Fédération de l'Industrie Chimique (CEFIC) which is arguably the EC's most impressive sectoral trade association. He shows how CEFIC has responded to the challenge of environmentalist demands by increasing its organizational capacity, especially by drawing resources directly from its large multi-national firms rather than its national member associations, and created ad hoc task forces to deal with specific issues as they come before the Commission. CEFIC was quick to seize the opportunity offered by the supremacy of Community law and, hence, of EC environmental regulations that could preclude (or preempt) more stringent national ones. It has proposed becoming a standard-setting body for the Community and offered to play a key role in implementing the policy of eliminating Chlorofluorocarbon production in Europe. Darden concludes that, on balance, CEFIC acts more like a pluralist lobby or pressure group than a classic corporatist « peak association » that can control the behavior of its (involuntary) members. Nevertheless, in a few areas such as GATT negotiations and standard-setting, it has been able to exploit its role as a monopolistic, officially recognized and indispensable intermediary. Its ability to make its decisions allgemeinverbindlich, i.e. binding on all producers regardless of whether they are its members, is still limited by the absence of state capacity within the EC. Only through changes at that level is it conceivable that CEFIC could follow the pattern of its most famous member, the German Verband Chemische Industrie (VCI), an association long regarded as one of Europe's most impressive national-sectoral PIGs. Henry J. Jacek, « The Functions of Industrial Chemical Business Interest Associations as Agents of Public Policy », in A. Martinelli (ed.), International Markets and Global Firms. A Comparative Study of Organized Business in the Chemical Industry, London, Sage, 1991.
The related pharmaceutical industry association (EFPIA) also seems exceptionally well-organized and connected at the European level : Justin Greenwood & Karsten Romit, « Established and Emergent Sectors : Organized Interests at the European Level in the Pharmaceutical Industry and the New Biotechnologies », in J. Greenwood, J. R. Grote & K. Romit (eds.), Organized Interests and the European Community, London, Sage, 1992, p. 69-98.

22. For a brief account of the failure of Euro-corporatism, see Philippe C. Schmitter and Wolfgang Streeck, « Organized Interests and the Europe of 1992 », in N. J. Ornstein and M. Perlman (eds.), Political Power and Social Change, Washington, DC, the AEI Press, 1991, p. 46-67.

23. For an account of the Commission's administrative structure which emphasizes sectoralization, see B. Guy Peters, « Bureaucratic Politics and the Institutions of the European Community », in A. Spragia (ed.), p. 75-122.

24. For a discussion of the alternatives, see Philippe C. Schmitter, « Sectors in Modern Capitalism : Modes of Governance and Variations in Performance », in R. Brunetta & C. Dell'Aringa (eds.), Labour Relations and Economic Performance, London, Macmillan, 1990, p. 3-39. The general conditions for the viability of PIGs are analyzed in W. Streeck & Ph. Schmitter, Private Interest Government.