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Journal of European Public Policy

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Intergovernmentalism in the European Union. Acomparative federalism perspective

Sergio Fabbrini

To cite this article: Sergio Fabbrini (2017) Intergovernmentalism in the European Union. Acomparative federalism perspective, Journal of European Public Policy, 24:4, 580-597, DOI:10.1080/13501763.2016.1273375

To link to this article: http://dx.doi.org/10.1080/13501763.2016.1273375

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Intergovernmentalism in the European Union. Acomparative federalism perspectiveSergio Fabbrini

School of Government, LUISS Guido Carli University, Rome, Italy

ABSTRACTThe article discusses the two forms of intergovernmentalism institutionalizedin the European Union (EU), one adopted in internal market policies and theother in the new policies close to traditional state powers. On the basis ofa comparative federalism approach, it investigates the different forms ofinfluence that constituent state governments exercise on the decision-makingprocess of two types of federation. Contrary to federal unions, such as theUSA and Switzerland, in the EU the constituent states are represented bytheir governments. Constituent states are instead represented by theirgovernments in federal states such as Germany (and informally in Canada),but in none of them they play the decision-making role as they do in the EU’snew policies regime. The article thus highlights the legitimacy vacuum inwhich the intergovernmental institutions operate in the latter policy regime,although this is not the case in the internal market policies regime.

KEYWORDS Accountability; federal states; federal unions; intergovernmentalism; legitimacy

Introduction

The aims of the article are the following: first, to identify the features of inter-governmentalism which are institutionalized within the European Union (EU)and, second, to assess their implications in terms of accountability and legiti-macy. Both aims are pursued by comparing the EU with established federalsystems. Before starting the analysis, it is necessary to clarify the conceptsthat will be used. Intergovernmentalism is one of the most discussed conceptsin both EU and comparative federalism studies. Here it will be understood as adistinct concept from that of intergovernmental relations (IGR). According toPoirer and Saunders (2015: 1), ‘Intergovernmental Relations (IGR) are a ubiqui-tous… dimension of federal systems. Despite differences between federa-tions, substantial interaction between orders of government is unavoidable.Regardless of the formal and initial structure of a federal system, orders ofgovernment become increasingly interdependent’. IGR as a practice ofcooperation between levels of government is also institutionalized within

© 2017 Informa UK Limited, trading as Taylor & Francis Group

CONTACT Sergio Fabbrini sfabbrini@luiss.it

JOURNAL OF EUROPEAN PUBLIC POLICY, 2017VOL. 24, NO. 4, 580–597http://dx.doi.org/10.1080/13501763.2016.1273375

the EU. As again Poirer and Saunders (2015: 3) state, ‘the EU has a number offederal characteristics, including a complex set of institutions and practices tomanage what has been termed “multi-level governance”’.

This article, however, does not aim to investigate IGR within the EU butrather intergovernmentalism in the sense of the role played by memberstate governments in the EU decision-making framework. This role hasbeen institutionalized in two forms. In the regulatory policies of the internalmarket, member state governments (through the Council of Ministers, sub-sequently termed simply the Council) share legislative power with the Euro-pean Parliament (EP) and the Commission (which holds the monopoly onlegislative initiative). Instead, in the new policies which emerged after theMaastricht Treaty (such as – inter alia – the economic side of the Economicand Monetary Union (EMU); foreign, defence and security policies; or crucialjustice and home affairs issues, such as asylum or border control policies),member state governments play a predominant decision-making role, arole exercised through both the Council and the European Council of theheads of state and government (finally formalized by the Lisbon Treaty asan EU institution). If the first is a form of intergovernmentalism balanced bysupranational institutions, the second is a form of decision-making whereintergovernmental institutions are assumed to be checked by national legis-latures. This second form is here conceptualized as intergovernmental union,because it consists of a stable, although evolving, set of institutions and pro-cedures organized in Brussels (Fabbrini [2015a]). As argued also in the ‘newintergovernmentalism’ literature (Bickerton et al. [2015]; Puetter [2014]), thisdecision-making regime implies a different role for the Commission and theEP (compared to the one played in internal market policies). In the new pol-icies, the Commission has come to play an implementing rather thandecision-making role, whereas the EP has been downsized in its influenceand power. Since in the new policies integration proceeds through voluntarycoordination among national governments rather than through legislation,the role of the Court of Justice of the European Union (CJEU) has also beencontained, while this role continues to be vital in internal market policieswhere integration proceeds through law. Once the conceptual distinctionbetween IGR (as a form of cooperation between orders of governments)and intergovernmentalism (as different institutionalized forms of the role ofmember state governments in Brussels) has been made clear, then it is poss-ible to investigate two research questions: why has this differentiated intergo-vernmental development happened? What have the consequences been interms of accountability and legitimacy for the EU?

I will investigate these questions on the basis of a comparative federalismapproach and will proceed as follows. First, I will identify the differencesbetween federations by aggregation (federal unions) and by disaggregation(federal states) in order to distinguish between different forms of constituent

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states’ influence at the federal level. Second, I will analyse EU intergovern-mentalism (as a form of representation in Brussels of constituent state govern-ments) with regard to the main policy regimes, in order to show the differentpatterns of influence of member state governments. Third, I will assess thelegitimacy implications of the two forms of intergovernmentalism which areinstitutionalized in the EU. In the Conclusion, I will bring my argument athome, stressing not only that both forms of intergovernmentalism deviatefrom the experience of federal unions and federal states, but also thatthe form adopted in the new policies, contrary to the form adopted ininternal market policies, has introduced a challenge to the democraticnature of the EU.

A comparative perspective: federal unions

From a comparative federalism perspective (Elazar [1987]; Galligan [2006]; Lij-phart [1999]; Watts [1998]), federalism should be considered as a form of stateorganization, combining shared rule and self-rule, to which correspond differ-ent systems of government. Form of state organization means an organizationaimed at regulating or structuring the vertical relations between each con-stituent state (self-rule) and the federal centre (shared rule), whereas systemof government means the organization of horizontal decision-makingrelations between the institutions of the federal centre. Federalism inter-preted as a form of state organization, aimed at combining shared rule andself-rule, is based on the recognition that constituent states should controltheir own self-rule and, at the same time, participate in different forms inthe common shared rule. Shared rule at the federal level implies differentstructures of representation of the constituent states in the horizontaldecision-making system, according to the nature of the governmentalsystem of the federation.

Although all federations are based on the representation of the constituentstates at the federal level, that representation differs substantially betweenfederal unions and federal states. This difference is due to the historicallogic that led to the formation of the federation in the first place. Indeed, itis analytically necessary to distinguish between federations formed via aggre-gation of previously independent states ( federal unions) and federationsformed through the disaggregation of a previously unitary state ( federalstates). Federal unions and federal states are the two main species of thegenus of the (democratic) federal political system. The USA and Switzerlandare the only cases, within established democratic political systems, thatwere formed through the aggregation of previously independent states orcantons and have functioned (for a long time, in the case of the former) asfederal unions. In both the USA and Switzerland, the aggregating stateswere asymmetrically correlated, where asymmetry concerns population size

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and material capability, but also culturally differentiated, where differentiationconcerns a distinction in values, attitudes or languages. Since in both federa-tions the states or cantons were the source of the process of federalization,they tried to retain as much power as possible from their previous indepen-dent status. Since these federations aggregate states that were previouslyindependent, the constituent states have maintained their administrative,legal and political structures in the new federation, replicating them at thefederal level. Some authors have called this system dual or bipolar federalism(Scharpf [2006]).

The demographic asymmetry and cultural differentiation between theaggregating states or cantons justified the setting up of a centre with delim-ited and controlled powers. Indeed, the USA and Switzerland have been his-torically characterized by weak federal centres and strong constituent statesor cantons, with a limited number of competences assigned to the centreand ‘all the rest’ recognized to the constituent states or cantons. Theoutcome has been the formation of a quite decentralized federal system(Zweifel [2002]). This decentralization has historically been a necessary con-dition for the formation of the two federal unions. The constituent states orcantons decided to promote or to accept aggregation out of a plurality ofrationales, such as the need to prevent future conflicts between them or tosettle previous conflicts or to promote effective economic interdependencebetween them, but it is unquestionable that those federal unions could notbenefit from a shared common identity. Although the argument of federa-tions formed for answering to a threat (Riker [1975]) has been aptly criticized(King [1982]), nevertheless federal unions had to accommodate the existenceof inevitable mistrust between independent states through the formation of adecentralized polity and a delimited centre. One might argue (Hendrickson[2003]) that they had to domesticate the international relations of rival border-ing states.

In terms of the system of government, separation of powers is the insti-tutional strategy for constraining the power of the centre. The USA and Swit-zerland have institutionalized different forms of a separation of powerssystem. Both systems function without requiring any vote of confidencebetween the governmental institutions. A system of separation of powersconsists of an internally separate bicameral legislature (with one chamber,the US Senate and the Swiss Council of States, representing constituentstate electors and the other chamber, the US House of Representatives andthe Swiss National Council, representing voters organized in electoral districtswithin the constituent states or cantons) and an independent executive (theUS president and the Swiss Federal Council) reciprocally independent.Through the institutionalization of an upper chamber representing territorialpolitics, it has been possible to balance the functional politics of the lowerchamber. Indeed, the US Senate, which emerged from the Connecticut

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Compromise struck at the 1787 Philadelphia Constitutional Convention, actedas a higher chamber model for the Swiss confederacy when it became a fed-eration in 1848: they have the same numerical representation of two senatorsfor the constituent states regardless of their demographic size (although inSwitzerland, after the 1999 revision of the federal constitution, six cantonsare now considered half-cantons, with the consequence that their represen-tation in the Council of States has been halved). Originally in the USA senatorswere indirectly elected by the constituent state legislatures, whereas inSwitzerland it was decided to leave the decision regarding the form of elec-tion of their senators to the Council of States to the cantons (Linder andVatter [2001]). The direct election of US senators, which was introducedthrough the XVII Constitutional Amendment of 1913, has certainly reducedthe influence of state legislative institutions on federal policy-making, but ithas not reduced the role of the Senate as the institutionalized representativeof constituent state interests, this time in the form of representation of theirvoters. That Amendment instead opened up opportunities to nationalizethe party system, in particular after the New Deal and the Second WorldWar. This nationalization further developed with the 1990s and 2000s, dueto the ideological polarization between the two main parties (Fabbrini[2008]). The decentralizing thrust of the separation of powers has beenseverely circumscribed by the centralizing pressures from the unprecedent-edly powerful role the USA has come to play in the international systemfollowing the Second World War (Hendrickson [2009]). On the other hand,in Switzerland the small size and the neutralist approach to foreign policyhave helped preserve the decentralized character of the federal union.

However, in the USA, anti-nationalization forces, seeking to preserve orregain competences or powers over policies which are considered of crucialimportance for the constituent states, have continued to mobilize. Accordingto Beer’s well-known metaphor (1993), US federalism necessarily functions asa pendulum, although the post-New Deal process of nationalization of politicshas worked in favour of the federal centre rather than of the constituentstates. The downsizing of the influence of state legislatures has been offsetby increasing lobbying by bipartisan associations representing state gover-nors (National Governors Association), state legislatures (National Conferenceof State Legislatures) and even trans-state mayors (United States Conferenceof Mayors). Indeed, in the US literature (Sbragia [2006]), the concept of inter-governmental relations includes the lobbying activities of the associationsrepresenting the constituent state institutional actors (governors, legislatures,mayors) in seeking to influence congressional policy-making. They are insti-tutional actors and not governments as such, because there are no govern-ments (as single institutions with the power to take final decisions) in theUS constituent states to be represented at the federal level. All states of thefederation are governed by a system of separation of powers, with a governor

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and a bicameral legislature which are reciprocally independent (Nebraska isthe only state with a unicameral legislature) (Fabbrini [2008]). Those associ-ations have thus become informal institutional devices for bridging territorialconcerns and functional policy in the context of the nationalization of con-gressional politics.

A comparative perspective: federal states

Regarding instead federal states (such as Germany, Austria, Belgium, Canadaand Australia, see McKay [2001], with Canada also having the features of a‘coming together’ federation, Fossum and Ménendez [2011]), in terms ofstate organization they have set up a stronger (compared to federal unions)decision-making centre also because, in terms of the system of government,they are all based on a parliamentary fusion of powers (and not on separationof powers as in federal unions). This is due to the institutional logic and his-torical path that led to their formation. Federal states emerged from aprocess of disaggregation of a previously unitary state, a process that histori-cally was either gradual or abrupt. In the post-Second World War era, such dis-aggregation has had differing rationales, such as the need to decentralize theexercise of state power in order to make it either more controllable or closer tothe interests of specific communities. Federation has not been the result ofthe exogenous necessity to domesticate international relations betweenrival bordering states, but rather from the endogenous need to respond tocalls for democratization and decentralization of the state organization.Since central political elites play a crucial role in negotiating the disaggrega-tion of the unitary state with local political elites, they have been able to retainsignificant decision-making resources at the centre of the new federation. Theequilibrium point reached in the negotiation has consisted in the design of afederal political system with manageable asymmetry and differentiationbetween the constituent states (Filippov et al. [2004]). This has made it poss-ible to preserve or to introduce a governmental system of fusion of powersat the horizontal level in the context of a federalizing project consisting ofseparating powers between constituent states and the federal centre at thevertical level. Indeed, all established democratic federal states have parlia-mentary governments where the popular chamber (the epitome of functionalpolitics) has the exclusive power to vote confidence in the government (or tovote it down) and thus to legitimize its decisions. The popular chamber, beingthe expression of national sovereignty, legitimizes the government as long asthe latter is accountable to the majority of that chamber.

This accountability model tends to foster a centralizing organization of thedecision-making process: in parliamentary federations, in fact, the legislatureand the executive should be connected through a relationship of politicalconfidence. The centralizing thrust of the parliamentary system has been

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mitigated through the institutionalization of a chamber representing theinterests of constituent states (Burgess and Gagnon [2010]). In Germanyand Canada, that centralizing thrust has been offset through formal or infor-mal representation at the federal centre of the constituent state governments.Both parliamentary federations have thus recognized intergovernmentalismas a necessary feature of the federal system. However, the intergovernmentalchamber representing constituent state governments in Germany (the Bun-desrat) and even more so the informal Canadian First Ministers Conference(which includes the federal prime minister and the prime ministers of the Pro-vinces, although since 2003 there has also been an informal Council of theFederation coordinating the prime ministers of the Provinces alone) do notplay a role in the government formation of the federal state. In Germany(Umbach [2002]), the formal consent of the higher chamber (Bundesrat) repre-senting the constituent state (Läender) governments is necessary to approvethe federal budget that affects them directly. In Canada (Cross [2010]) theinformal agreement reached in the First Ministers Conference is necessaryto create the political conditions for the law-making process that takesplace in the formal parliamentary institutions. However, in both cases, theinvolvement of the German Bundesrat and even less so of the CanadianConference is not required in the formation of the federal government(a prerogative exclusively controlled by the lower chamber, i.e., the GermanBundestag and the Canadian House of Commons).

In Germany, the centralizing thrust of the parliamentary system has beenfurther mitigated by the assignment to Läender administrations of thepower to implement national decisions within their respective jurisdictions.At the same time, that centralizing thrust has been accompanied by an exten-sive network of intergovernmental relations between the Bund and theLäender consisting of policy committees, specialized agencies, workinggroups, and informal commissions through which overlapping competences,for a growing and undefined number of policies, are managed. As Lhotta andvon Blumental (2015: 206) have noted, in Germany ‘extensive co-operationbetween all orders of government is the result of functional division of com-petences whereby most legislative powers are bestowed on the national gov-ernment. The Läender have nearly all administrative competences, includingthe implementation of federal laws’. Thus, while ‘the second chamber offederal legislature, the Bundesrat, is the central arena for intergovernmentalrelations’ (Ibidem), the first chamber (the Bundestag) is the exclusive arenafor the legitimacy of the government. In Canada, the centralizing thrust of par-liamentary government has been periodically circumscribed by the need toaccommodate the separatist claims of Quebec. Indeed, because of that,Canada has become a quite decentralized federal state (Fossum and Ménen-dez [2011]). Having started as a dualist model, after the Second World Warthat model has become more cooperative, fostering growing IGR between

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the two orders of government (the federal and the provincial). The ratherweak representative role of the Senate (the 105 members, coming from thegeographical regions of the country, are appointed by the GovernorGeneral, on behalf of the British Crown, upon recommendation of thefederal prime minister) cannot balance the role of the popular chamber. Ashas been noted (Adam et al. [2015]: 142), ‘a link is often made between theabsence of effective representation of provincial interests through theSenate – sometimes referred to as “intrastate federalism” – and the impor-tance of intergovernmental relations in Canada – sometimes referred to as“interstate” federalism’. Inter-provincial agreements (within the First MinistersConference) have supplemented the parliamentary decisions of the House ofCommons, sometimes even ‘directed’ the parliamentary process. In bothfederal states, (formal or informal) intergovernmentalism (i.e., the represen-tation of constituent state governments) has contributed to bringing the con-cerns of territorial politics within the functional politics of the lower chamberthat legitimizes the federal government. Notwithstanding the growingdensity of intergovernmental relations, the role of legitimizing governmentaldecisions is exclusively in the hands of the chamber representing the nationalelectorate. This is why both Germany and Canada are considered to embodythe model of cooperative or unipolar federalism (Scharpf [2006]).

In short, all federations (both federal unions and federal states) have had toinstitutionalize the influence of the constituent states on the federal decision-making process. That influence, however, has taken different forms, depend-ing on the nature of the system of government adopted at the horizontallevel. In federal unions such as the USA and Switzerland, the governmentalsystem of separation of powers guarantees to the institution (the US Senateand the Swiss Council of States) representing the constituent state electorsdecision-making influence on all policy issues. Federal states such asGermany and Canada, on the contrary, having adopted a governmentalsystem based on the fusion between the majority of the lower chamberand its executive, have kept the intergovernmental chamber representing(formally or informally) constituent state governments outside of theprocess of the government’s formation, although a crucial role has beenrecognized to it in matters of concern to them. The formal or informal rep-resentation of constituent state governments at the federal level has consti-tuted a device for mitigating the centralizing thrust of parliamentarygovernment (in Germany), but also for remedying the representative weak-ness of the Senate (in Canada). However, although the German Bundesrat for-mally represents Läenders’ executives and although the Canadian FirstMinisters Conference has become a powerful, albeit informal, institution,neither the German Bundesrat nor the Canadian Conference play a role inthe governmental formation of those federations. On the contrary, althoughthe US Senate represents the state voters as does the Swiss Council of

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States, both institutions formally participate in the governmental process oftheir federation and contribute on an equal footing with the lower chamberto the definition of federal policies.

Intergovernmentalism in the EU

If the EU is closer to the experience of a federal union than a federal statebecause of its formation through the aggregation of previously independentstates (Fabbrini [2010]), then one might expect that the institutionalization ofits decision-making system would have followed a logic of the separation ofpowers. Indeed, since the Rome Treaties of 1957, the EU has come to institu-tionalize a decision-making system based on the interplay between a power-ful intergovernmental institution (the Council) and a powerful supranationalinstitution (the Commission), with a supervisory role played by an influentialCJEU (because integration has developed through the approval of legislativeacts, i.e., integration through law). This system has been further strengthenedby the gradual integration in the decision-making process of the EP which hasbeen directly elected since 1979. A sort of triangular interaction between theCommission, the Council and the EP was institutionalized in the context ofcommon and then single market policies. That interaction was later concep-tualized as the Community Method (Dehousse [2011]: 4). One might arguethat, through the latter, the EU of the internal market has developed as asupranational union, based on the principle of sharing decision-makingpower at the horizontal level between separate institutions (separatebecause the Council, the EP and the Commission are not connected by arelation of political confidence) representing supranational and memberstate governments’ interests.

The Community Method, however, was not adopted to deal with thenew policies which became part of the EU agenda after the end of theCold War, such as foreign, defence and security policies or the economicpolicy aspects of Economic and Monetary Union (EMU) or justice andhome affairs issues (such as asylum and border control). In the MaastrichtIntergovernmental Conference, which prepared the Treaty of 1992, theagreement was to introduce an alternative constitutional model of inte-gration for managing policies traditionally linked to core domestic statepowers (Fabbrini [2013]; Genschel and Jachtenfuchs [2014]; Puetter[2014]). Since these policies are of particular political importance fornational governments (i.e., they affect the electoral fortune of incumbentgovernments), their Europeanization has been put under their directcontrol. The collegiality of national governments (as represented by theCouncil and the European Council) has thus become the new centre ofEU politics (Puetter [2013]). This constitutional decision has made it poss-ible to advance integration in policy fields which are considered politically

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important for member states. However, the process of integration in thosepolicy fields has not led to the strengthening of the supranational insti-tutions (the EP in particular). This has also implied a curtailment of therole of the CJEU (whose power has continued to be crucial instead in thesupranational EU of internal market policies). If the supranational modelis based on the constitutional principle of sharing decision-makingpower, according to various forms of majority voting, among institutionsrepresenting European and national government interests, the intergo-vernmental model is instead based on the constitutional principle ofpooling decision-making power within the intergovernmental institutionsalone, where decisions have to be taken through the consensual coordi-nation of national governments’ preferences.

After the 1992 Maastricht Treaty the EU has come to institutionalize a dualconstitutional regime, supranational in the internal market, but intergovern-mental in the new policies. The 2009 Lisbon Treaty further institutionalizedthis constitutional dualism. On one hand, it further strengthened the EP asthe co-legislature of the Council, making co-decision the ordinary legislativeprocedure for deciding internal market issues; on the other, it formalizedthe executive role of the national governments coordinating in the EuropeanCouncil in the new policies, strengthening that role through the latter’selection of its permanent president. The decision to give a permanentpresident to the European Council is the expression of the strategy to bringa previously informal institution into the formal decision-making core of theEU. Of course, these two policy regimes have inevitably come to interact,creating mixed forms of decision-making on specific or ad hoc policy issues.However, due to the explosion of a sequence of crises in policy areassubject to the intergovernmental union’s regime (the euro crisis, therefugee crisis, the terrorism crisis), the decision-making role of the intergo-vernmental institutions has been further strengthened. Indeed, Curtin(2014) has argued that the European Council has imposed its own politicalviews also on the legislative process which has been traditionally regulatedby the Community Method. In short, the more the crises have deepened,the more they have required ‘leadership and decision-making at thehighest political level, which has contributed to strengthening of the positionof the European Council’ (Leino and Salminen [2012]: 864).

The euro crisis was a significant test to highlight the functioning of theintergovernmental union. During the euro crisis, with regard to the econ-omic policy of the EMU, the decision-making barycentre moved towardsthe relationship between the European Council (and the Euro Summit)and the ECOFIN Council (and the Euro Group), with the EP and its co-decisio-nal power shadowed by the intergovernmental logic (Bressanelli and Fasano[2016]). As has been said (Crum [2013]), the euro was saved at the cost ofdemocracy. It is true that important legislative measures (the European

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Semester, the Six Pack and the Two Pack) were adopted through the ordin-ary legislative procedure that recognizes a legislative or consultative role tothe EP, but it is also true that those legislative acts did not give the EP thenecessary resources and prerogatives to provide checks and balances onthe operation of the intergovernmental institutions. Moreover, the intergo-vernmental treaties (such as the European Stability Mechanism (ESM) andthe Fiscal Compact or the Single Resolution Fund (SRF)) signed during theeuro crisis do not recognize the EP as a policy-making actor. The EuropeanSemester, the Six Pack, and the Two Pack have increased both the supervi-sory role of the Commission in monitoring ex-antemember states’ behaviourregarding their respect of legal parameters and the sanctioning role of theCommission in activating ex-post the excessive deficit procedure (EDP).The logic of surveillance behind these measures has made the Commission,not the EP, the actor for supervising the budgetary policies of the memberstates. The banking union is the last, but probably not the least, crucial policyregime where the EP’s power of checking and overseeing the EuropeanCouncil has been undercut. Thus, even when the EP participates throughthe co-legislative procedure in the approval of specific regulations and direc-tives, the content of the latter does not give it an equivalent power in theoperation of those legislative measures. Lacking an independent budgetother than the financial transfers by member states, since it is preventedfrom raising the Union’s taxes, the EP does not possess the basic resourcesin order to claim it plays a balancing role in the intergovernmentalinstitutions.

The EP and the Commission have reacted to the unbalanced decision-making growth of national governments by strengthening their politicalrelation. The choice made by the main European political parties to indi-cate their spitzenkandidat for the role of Commission president in the EPelections of 2014 constituted a clear attempt to reduce the power of theEuropean Council in the Commission’s formation. Jean-Claude Juncker infact became the Commission president as spitzenkandidat of the party(the European People’s Party or PPE) which won a plurality of seats inthose elections. His election has politicized the Commission, but it hasnot been sufficient to transform it into the government of the EU (Fabbrini[2015b]). In internal market policies, the Council has maintained its co-equal role with the EP in the ordinary legislative process, whereas in thenew policies the intergovernmental European Council has further strength-ened its executive powers of agenda-setting and decision-making. Thespitzenkandidat strategy has not filled the legitimacy vacuum of the inter-governmental union, although it has certainly contributed to strengthen-ing the horizontal accountability between the Council and the EP ininternal market policies.

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The legitimacy vacuum of the intergovernmental union

In the intergovernmental union a form of confusion, not a separation ofpowers, has emerged. The intergovernmental institutions of the EuropeanCouncil and the Council have in fact come to perform both decision-making and representative functions. This has prevented the formation ofaccountability between the different institutions representing different consti-tuencies in Brussels. The confusion of powers has been, however, justified onthe assumption that national governments (coordinating within the Brussels-based intergovernmental institutions) are controlled by national parliamentsat the national level. National governments pool their national legitimacyinto the intergovernmental institutions coordinating them in Brussels (VanMiddelaar [2013]), as they do with their own decision-making power. Thus,whereas in internal market policies an EU based on horizontal reciprocalcontrol between institutions representing both national governments (theCouncil) and European citizens (the EP) has emerged, in the new policies ofthe intergovernmental union this balancing act has instead a verticalnature. If accountability is the characteristic of a political system in whichdecision-makers are required to be responsible for their choices, that respon-sibility can take different forms in relation to the nature of the governmentalsystem. Democratic politics implies that decision-makers have always to beelectorally accountable to the citizens, although in-between electionsaccountability should have also an inter-institutional nature. In inter-insti-tutional terms, accountability requires representation structures that imposecitizens’ evaluation on the decision-makers’ choices (Piattoni [2015]). Thus,the models of accountability are different in the two EU policy regimesbecause of the different concepts of representation that they have institutio-nalized. In internal market policies the model of accountability consists ofmutual and horizontal control between the Council and the EP and the Com-mission, whereas in the new policies the decision-makers of the EuropeanCouncil and Council are expected to account vertically to the national parlia-ment of each member of those institutions. These different models presup-pose different views on citizens’ representation within EU policy-making:supranational representation in internal market policies (through the EP),national representation in the new policies (through member state parlia-ments). These different concepts of representation justify different modelsof legitimacy: in internal market policies, the legitimacy of the decisionsderives from the horizontal interaction between institutions representingboth national governments and European citizens; in the new policies, thelegitimacy of the decisions derives from the vertical relations between theintergovernmental institutions in Brussels and the plurality of national parlia-ments representing national citizens in the member state capitals. The eurocrisis has been therefore a litmus test of the model of legitimacy of the

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intergovernmental union. The decisions taken by the European Council andthe ECOFIN Council had to be legitimized by the national parliaments andnot by the EP, because they had direct (financial or political) implicationsfor the member states.

Vertical accountability, which is improbable in logical terms, has beenhighly contradictory in empirical terms. Logically, vertical accountabilitytries to connect unbridgeable entities. The decisions taken by the intergovern-mental institutions have an impact on the citizens of the EU (or EMU), anaggregation of individuals that does not coincide with the sum of eachsingle national electorate. The European Council or the ECOFIN Council aresingle institutions which cannot be made accountable to a plurality of distinctnational parliaments. If they take decisions on behalf of the EU or EMUmember state governments, then they should be made accountable to theinstitution representing EU or EMU member state citizens (namely the EP).Empirically, vertical accountability has triggered the formation of divisionsand hierarchies between national parliaments, thus impeding their account-ability function as a plurality. In fact, with regard to the main financial aid pro-grammes, while national parliaments of the debtor member states had no sayin the agreements, the national parliaments of the creditor member states, inparticular the German Bundestag, successfully imposed their checking role onthe decisions of the intergovernmental institutions (formally, with regard onlyto the financial contribution of direct concern to Germany; de facto, on theentire aid package, since the German share was the largest). The Bundestagcould certainly base its claim also on judgements of the federal constitutionalcourt (Bundesverfassungsgericht), which stated that decisions taken by the EUwhich have financial implications for Germany should have the formalapproval of the popular chamber (Bundestag or its financial committee) ofthe federal legislature. This constitutional requirement has increased, butdid not create, the pre-existing asymmetry between creditor and debtormember state parliaments of the EMU. In order to neutralize this effect, pro-posals were advanced for the formation of an inter-parliamentary legislaturein Brussels (a chamber consisting of representatives of the national parlia-ments, in particular of EMU member states), substituting or integrating theEP, as a check on the European Council and Council (Chalmers [2013]), asthe Conférence des organes parlementaires spécialisés dans les affaires del’Union des Parlements dell’Union Européenne (COSAC) is already trying to do(Neyer [2015]). However, this latter chamber would not only complicate theaccountability’s process in Brussels, without however filling the legitimacyvacuum of the intergovernmental union.

Nor can the legitimacy vacuum of the intergovernmental union be filled bythe dense vertical network of IGR between member states and Brussels tomanage a growing number of shared competences. Lacking significantadministrative capacity in Brussels, the scope of that dense network of

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specialized committees and working groups has been to connect Brusselsinstitutions (and the Commission in particular) with member state adminis-trations (Piattoni [2009]). With the exception of competition policy (wherethe Commission can rely on its power and resources), ‘the system is almostfully “integrated” and EU institutions rely heavily on the member states toimplement EU laws and programs’ (Levrat [2015]: 181). If that densenetwork of IGR has made the implementation of complex EU policies manage-able, in the new policies that network has ended up generating anotherparadox, namely the weakening of the principle of subsidiarity introducedwith the Maastricht Treaty and now part of the Lisbon Treaty. In fact, that prin-ciple celebrates the commitment of the EU and the member states alike topromoting a decision-making logic where EU institutions perform onlythose tasks that cannot be performed more effectively at a national or locallevel (TEU, Article 5.3). If EU institutions overstep their boundaries, thennational legislative institutions can start a process to contain them (Fabbrini[2016]). However, because in the intergovernmental union decisions have apolitical rather than a legislative nature, then it is easy to understand whythe subsidiarity principle has never been activated by national parliamentsin the field of economic and related policies, also because they would havedifficulties in opposing decisions taken by their governments within the Euro-pean Council or the Council.

In short, the intergovernmental union differs from the federalism of theUSA and Switzerland. In both those federal unions, notwithstanding practicesof cooperation between the centre and the constituent states (for the US case,see Schutze [2010]), a federal boundary has continued to regulate relationsbetween the two levels of the federation. The federal centre and the constitu-ent states are reciprocally independent in their spheres of competence (self-rule) and they operate cooperatively or competitively in dealing with commonissues (shared rule). At both levels legitimacy is guaranteed by the interplay ofreciprocally separate executive and legislative institutions checking and bal-ancing each other. However, the intergovernmental union also differs fromthe federalism of Germany and Canada. In both those federal states, the prac-tice of cooperation has developed between committees of the federal centreand the constituent states within the boundaries of legitimacy that are pre-sided over by the popular legislature. In those federal states, the Bundesratand the First Ministers Conference are the arena for negotiation betweenthe various levels of government, but it is only the Bundestag and theHouse of Commons that define the legitimacy parameters of the federaldecision-making process. The intergovernmental union should not be con-fused with the practice of ‘executive federalism’ detected by Gagnon (2010)in Canada or by Lhotta and von Blumenthal (2015) in Germany. The informalinfluence of the prime ministers of the federation and Provinces in Canada orthe formal influence of Läenders’ executives in the German Bundesrat are kept

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in check by the predominant legislative function of the House of Commons orthe Bundestag. The approval of the popular chamber is necessary, in both fed-erations, to give legitimacy to federal decisions. In the EU’s new policies, onthe contrary, the decision-making role of the national governments isunchecked by the EP, whereas that role is balanced by the EP in internalmarket policies.

Conclusion

Intergovernmentalism in the EU has acquired two different institutionalforms. In the regulatory policies of the internal market, it has acquired theform of a legislative chamber (the Council), representing member state min-isters, having co-decisional power with the EP, representing the Europeancitizens. In the new policies, it has instead acquired the form of adecision-making regime where the institutions representing member stategovernments (the Council and, above all, the European Council) have a pre-dominant role in the decision-making process. If the former type of intergo-vernmentalism respects the criteria of horizontal accountability, the samecannot be said for the latter type of intergovernmentalism. Thus, while ininternal market policies decisions are legitimated by the interlocking of insti-tutions representing national governments (the Council) and Europeanvoters (the EP), decisions taken in the new policy regime have fallen in alegitimacy vacuum because of the limited role played by the EP in balancingthe decision-making role of the European Council and Council. The idea ofvertical accountability between the Brussels-based unitary intergovernmen-tal institutions and the dispersed national parliamentary institutions is thesource of that vacuum.

This article has also shown that both forms of intergovernmentalism haveno equivalent in other federal systems. It is true that the formal or informalrepresentation of constituent state governments has been adopted byfederal states such as Germany and Canada. However, the German Bundesratand less so the Canadian First Ministers Conference do not have power equalto that of the popular chamber (the German Bundestag and the CanadianHouse of Commons) in the legislative and governmental process of the fed-eration. In federal unions (such as the USA and Switzerland) member stategovernments are not represented at the federal level, although thechamber representing constituent state voters (the US Senate and the SwissCouncil of States) plays a role equal to that of the popular chamber (the USHouse of Representatives and the Swiss National Council) in the legislativeprocess of the federation, because of the separation of powers system orga-nizing it. Thus, from a comparative federalism perspective, the two forms ofEU intergovernmentalism differ from the model of constituent state represen-tation adopted by the two federal systems, although this difference generates

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a legitimacy problem in the intergovernmental union, but not in the internalmarket regime.

Disclosure statement

No potential conflict of interest was reported by the author.

Note on cotributor

Sergio Fabbrini is Professor of Political Science and International Relation and Directorof the School of Government at the LUISS Guido Carli in Rome, Italy.

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