‘Competence creep’: Federalism isn’t about “more Europe” by whatever means possible

, by Juuso Järviniemi

‘Competence creep': Federalism isn't about “more Europe” by whatever means possible
© European Union 2017 - European Parliament

In EU studies, competence creep refers to a situation where EU-level rules emerge in a field where the EU doesn’t have a specific competence. The Lisbon Treaty sought to address the issue of EU rules appearing through the backdoor in this way, but in the March 2019 edition of the Journal of Common Market Studies, Sacha Garben writes that the phenomenon is still there. A summary of Sacha Garben’s paper, “Competence Creep Revisited”, followed by brief commentary.

Where does competence creep come from?

Garben details six sources of competence creep, and discusses the effects of each from a democratic standpoint. The six sources are 1) EU adopting legislation which also has an indirect effect on another field; 2) court rulings that seem to extend the EU’s scope of influence; 3) international agreements like trade deals that limit member states’ freedom of action; 4) “soft law”; 5) different aspects of economic governance such as aid packages that come with strings attached; and 6) intergovernmental agreements outside the EU framework, which Garben includes in her treatment on the subject.

One high-profile example of competence creep through the European Court of Justice is the Bosman ruling from 1995. Even though the EU didn’t have a competence to legislate on sport, the court said that sport is also an economic activity, and for example referred to the free movement of workers in parts of its ruling. As a result, one outcome of the ruling was that the number of foreign players from the EU per team could no longer be capped.

As for trade deals, Garben writes that as the EU and its member states must honour their commitments, the member state cannot legislate just as it pleases – this may for example limit the states’ room for action on social policy. Moreover, sometimes a trade agreement can directly relate to areas where the EU should normally not have powers to harmonise countries’ policies.

National governments are also behind the problem

Though the issues in the above examples originate from EU institutions, national governments also have their own responsibility for competence creep. For example, many of the “EU” measures to combat the Eurocrisis were in fact adopted by the member states themselves. For example, the European Stability Mechanism, though all Eurozone members are a part of it, was created by governments as a new intergovernmental organisation. For its part, “soft law”, whose power is based on the shame of not following one’s non-binding commitments, often emerges from the so-called ‘Open Method of Coordination’ between member state governments, and may result in far-reaching changes in countries’ domestic systems.

National and European executives, as well as courts, are ‘winners’ of competence creep, while the national and European parliaments lose out. As such, Garben points to the phenomenon as a democratic problem.

As was mentioned in the beginning, treaty changes have not managed to solve the issue. The idea has been that a more precise delimitation of EU competences would be the solution, but Garben points out that pieces of legislation tend to cover many walks of life at the same time, which is why such delimitation is difficult. Indeed, the author writes that ‘federalism characterised by strict competence demarcation between different levels of government is bound to fail’. Instead, this experience may be an argument for “cooperative federalism”, where different levels rather work together to address common issues instead of each level strictly focusing on their own silo.

To address the issue, Garben proposes addressing the various sources of competence creep together. At the same time, given that the European Parliament is being sidelined, strengthening the role of the normal legislative process is a solution.

Commentary: Federalism isn’t simply about “more EU”

The question of competence creep is a good example for those who wish to answer the charge that the principal goal and motivation of European federalism is giving more powers to the EU. This is not the case: competence creep means more European-level coordination, and in a certain way more power to the EU institutions, but a textbook federalist should be concerned about the phenomenon.

Instead of relentless centralisation through whatever means possible, federalism is about effective and efficient governance, and about democracy and transparency. Those alarmed by European rules appearing through the backdoor, behind citizens’ backs, would prefer the front door to be used instead. The federalist argument is very much compatible with this: strengthening the European Parliament is one of the federalists’ most common talking points, and the rationale is precisely to replace backroom deals with open and transparent decision-making. Not everything that is “European” is federalist.

Sources & further reading

Garben, S. (2019) ‘Competence Creep Revisited’, Journal of Common Market Studies Vol. 57(2), 205–222.

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