Towards a new concept of multi-level governance?

Towards a new concept of multi-level governance? Remarks by Dr. Thomas Conzelmann, University of Maastricht MLG Atelier, 10 September 2008 (Revised version: 25 September 2008) 1. Contexts of the debate The debate on multi-level governance (MLG) relates to a number of developments within the European Union (and other international organisations). Concerning the EU, the concept had first been discussed in relation to two developments: first, the increasing activity of subnational actors in Brussels (as demonstrated by the opening of subnational embassies in Brussels and the erection of the Committee of the Regions in 1992/1994), and second, their greater role in EU policy-making and implementation, as shown most clearly by the 1988 reform of the structural funds. In addition, an increasing number of direct contacts between the subnational authorities and the Commission were observed. All of these developments seemed to indicate that subnational government was becoming more prominent in the decision-making and implementation processes of EU politics. Against this background, Gary Marks initially characterized MLG as the result of a centrifugal process in which decision-making is spun away from member states in two directions, namely to the subnational as well as the supranational levels (Marks 1993: 401-402). In the wake of this, the much older debates on regional mobilisation and constitutional transformation of the nation state (Keating 2008 gives an overview) were also increasingly discussed in the MLG context. Multi-level governance thus was interpreted as an outcome of the simultaneous processes of European integration and regionalisation, both of which led to a diffusion of powers away from the nation state (Hooghe 1996). In its more recent versions, the MLG discourse has begun to address more generally the diffusion of political authority into a less hierarchical and more network-like structure of EU policy-making; often portrayed as new modes of governance (NMG). 1

The use of soft (i.e. non-binding) forms of regulation, and the emergence of publicprivate governance arrangements are highlighted in this discussion. Empirical reference points are among others the Open Method of Coordination, voluntary accords and the new approach directives, as well as delegation to regulatory networks and agencies (see Héritier 2002; Sabel/Zeitlin 2007; Koutalakis 2008). These instruments are characterised by subsidiarity (i.e. delegation to lower levels or to private actors) and the inclusion of actors not on the basis of formal competence, but on the basis of the resources these actors can bring into play. The emergence of these different forms of multi-level and polycentric governance (Schmitter 2003: 72) is discussed as a product of gradual and incremental institutional formation at EU level and as an attempt to inject a dose of flexibility into an otherwise cumbersome policy process. 2. Type 1 and Type 2 multi-level governance Reflecting on these different contexts within which the MLG concept is discussed, Gary Marks and Liesbet Hooghe (2003; 2004) have proposed to distinguish different types of multi-level governance. The more traditional Type 1 1 form of MLG builds upon general-purpose jurisdictions (governments) at different levels, and is mostly interested in the interaction between these levels and the sharing of competences between them. Type 1 MLG thus is attached to a state-centric concept of politics. Consequently, federalism is described as the intellectual foundation for Type 1 MLG by Marks and Hooghe (2003: 236). One institutional blueprint that takes up this notion of MLG is the Europe of the Regions concept that was debated broadly in the 1990s (Conzelmann 1996) even though, one may add, the ideas proposed by many supporters of the Europe of the Regions concept tended to be more radical than the kind of Russian doll set of nested jurisdictions that Marks and Hooghe have in mind (2003: 236). A less sweeping version of Type 1 MLG in the EU context would foresee 1 Marks and Hooghe term them Type I and Type II. For ease of reading, this note sticks to Arabic numbers. 2

regional and local public actors cooperating with the higher levels in a variety of policy areas and public services broadly conceived. Regional and local government would act as a third territorial layer in EU policy-making. Where this level is lacking, efforts should be made to erect the necessary bodies in order to safeguard the effective application of EU laws and to organize input from civil society. The principle of subsidiarity as expressed in the EU treaties forms the normative backbone of this approach. Type 2 multi-level governance as identified by Hooghe and Marks is characterised by task-specific (instead of general purpose) jurisdictions, intersecting memberships and a flexible design that is responsive to temporary need (2003: 237-239). As explained by the authors (2004: 29), Type II multi-level governance ( ) consists of special-purpose jurisdictions that tailor membership, rules of operation, and functions to a particular policy problem. The basic idea is that all significant costs and benefits are internalized within the jurisdiction (2003: 240), which in turn leads to the idea that such jurisdictions may very well span several (territorially or otherwise defined) levels. Applied to the EU, the concept would foresee that decision-making and implementation networks take over tasks which are only rather loosely defined in EU secondary legislation. The partnership arrangements in the implementation of the structural funds could be seen as one prime example, as well as the often highly complex networks emerging around the different variants of the Open Method of Coordination. Regarding the normative principles which underpin this Type 2 notion of multi-level governance, one could point to policy effectiveness and the minimization of negative externalities (even though the jury is still out here), but also to a postparliamentarian conception of democratic legitimacy: While the use of soft law decreases the demands on democratic legitimacy, benchmarking, transparency and direct civil society input could keep MLG arrangements accountable and in line with the preferences of citizens. In addition, the more hands on approach of many new instruments in EU governance can also increase the participatory quality of EU policymaking (cf. Gbikpi/Grote 2002; Borrás/Conzelmann 2007; for a sceptical view see Papadopoulos 2008). 3

3. Type 2 MLG as a favoured concept It is unclear whether Type 1 or Type 2 should be the starting point for the Committee of the Region s discussion on multi-level governance. From an analytic point of view, a key question is what kind of questions the different approaches would lead us to ask, and what sort of comparisons they allow. Here, the Type 1 concept implies that the EU can and should be compared to other federal systems. Regions would be seen as another constitutional or quasi-constitutional layer in multi-level governance, and the question would arise how competences are best distributed across the different territorial layers. In contrast, the Type 2 approach would see multilevel governance in the EU as related to the wider problems of governance at the domestic and the global levels (cf. Jørgensen/Rosamond 2001). It would allow to compare decision-making and implementation networks across different policy fields (e.g. in regional, environment, culture, tourism, and urban policy) or to compare governance in the EU with task specific governance arrangements at the global or subnational levels. The transfer of experiences and the comparative analysis of governance in different institutional settings would be facilitated by such an approach. Both approaches are not without their problems. When applied to the EU, it seems that the Type 1 approach has difficulty in grasping many elements of EU governance. For example, regional and local structures vary widely across Europe, and there is no agreement concerning the role that the regional or local levels can and should play in the various member states. Another problem relates to the difficulties of neatly delineating tasks across layers witness the long and winding road to agreement over this issue in the Constitutional and Lisbon Treaties. Should we therefore focus on the Type 2 approach when thinking about a new concept of multi-level governance in the EU context? Concerning the descriptive 2 accuracy of the Type 2 variant in the EU context, the answer would be yes, especially if we move beyond the confines of structural policy and look at other policy fields such 2 As noted correctly by a number of writers present at this first MLG atelier, the multi-level governance concept is stronger as a descriptive tool, but up to now lacks explanatory punch. 4

as the environment with a less clear-cut role for regions and municipalities (Conzelmann 2008; Knill/Tosun 2008). But even the paradigmatic approach of the EU s structural policy as noted above, the area where MLG as a concept was first developed and tested is much more compatible with Type 2 multi-level governance. Let me briefly explain this last point: In retrospect, it seems that the original excitement both of academics and of regional policy elites about the empowerment of subnational actors and the possible emergence of a Europe of the Regions was to a large degree due to the state-centric analytical lenses that observers used when looking at the role of the subnational level in the EU. These Type 1 lenses precluded an interpretation of the new implementation structures of the structural funds as part of a larger phenomenon of governance in the Union. In fact, federalism was never something the Commission had in mind when pushing for the inclusion of regional actors in the implementation of the structural funds. Rather, regional, local (and other sub-national) actors were seen by the Commission as crucial partners in producing more meaningful regional development plans than those drawn up by remote member state bureaucracies and in diffusing new ideas about regional development that contrasted from the more traditional focus on infrastructure and investments (cf. Keating 2008: 72). But regional actors remain constrained to that task-specific and basically temporary function and in principle act on a par with the other social partners that were mentioned in the implementation regulations for the structural funds from 1993 onwards. In addition, the geographical and functional delimitations of networks set up for structural funds purposes clearly vary over time and often do not coincide with the administrative borders of regions and municipalities as defined in the (quasi-) constitutional arrangements of member states. Even though regional governments or decentralised executives often do play an important role in the implementation networks of the structural funds, these networks do not pretend to represent a certain region (rather, they represent an intervention area of the structural funds), and are also not intended to contribute to the emergence of more 5

formalised regional structures. 3 In summary, therefore, the Type 2 conception of MLG seems to be better aligned to current EU policy-making which is an important argument to favour this conception over the more traditional Type 1 outlook on MLG. 4. The territorial aspect An open question in Type 2 MLG is the significance of the territorial aspect, and by implication the role that regions and localities are to play in a governance structure thus conceived. Marks and Hooghe inform us that the constituencies of Type II jurisdictions are individuals who share some geographical or functional space and who have a common need for decision-making (2004: 240). This implies that geographical interdependence (in the sense of belonging to the same municipality, region or otherwise defined territory) possesses the same status as functional interdependence, and that the multi-level concept can relate to any situation of distinct actors with joint problems. Yet, the problem with this idea is that governance by definition is concerned with solving shared problems. It is understood, for example, as all those interactive arrangements in which public as well as private actors participate, aimed at solving societal problems or creating social opportunities (Kooiman 2002: 73). In that sense, governance is by definition concerned with functional spaces within which common problems exist. If this is true, however, it becomes unclear what additional analytical distinction is introduced by the multi-level concept. One answer could be that levels do not relate to territory, but to some other sort of actor qualities apart from a shared geographical location, e.g. being a business or civil society actor. 4 Yet, such different actor qualities are already included in the mainstream definition of governance (as opposed to government). Furthermore, if individuals can make up 3 Even in the UK, where the implementation of the reformed structural funds coincided with (and sometimes seems to have triggered) the emergence of a certain degree of regional identification, and after the advent of the Blair Government the creation of regional development agencies, both the importance of the EU s structural funds and the long term institutional implications of that development should not be overstated (Conzelmann 2006; Bache/Conzelmann 2008). 4 Cf. the discussion on whether or not it makes sense to keep multi-level and multi-actor concepts apart, which is touched upon in the note Questions and quotes on the (new) concept of MLG" prepared for the present atelier, p. 2. 6

levels, there is a clear tendency that any complex organisation can be described as an example of MLG (Keating 2008: 76). In summary, then, the concept of multi-level governance is in clear danger of either becoming tautological ( functional spaces, multi-actor networks ) or of replacing more suitable terms (such as organization ) if the concept of levels remains underspecified. In my view, therefore, if MLG is meant to denote something different than the more general term governance, then one has to insist on the significance of territory for the multi-level concept. 5 Yet, this does not imply a return to Type 1 multi-level governance. While Type 1 MLG refers to nested administrative entities, in Type 2 MLG the notion of levels may refer to a variety of territorially defined arrangements of cooperation, and not just those territorial layers that are foreseen in the (quasi-) constitutional and administrative structures of member states. Multi-level governance could then be defined as an arrangement for making binding decisions that engages a multiplicity of politically independent but otherwise interdependent actors private and public at different levels of territorial aggregation in more or less continuous negotiation/deliberation/ implementation, but does not assign exclusive policy competence to any of these levels or assert a stable hierarchy of political authority (Schmitter 2003: 72, my emphasis). The concept of region (or more generally of territorial level of aggregation ) would then refer to any territorial arena within which interaction among a variety of actors can take place, and in which the experience of territorial interdependence and geographical proximity provide important motivating factors for working together and for engaging with the outside world (such as networks that have formed at other territorial levels). One could push this point even further in accordance with the discussion on Type 2 MLG as developed above: The concept of region (and by implication, of locality ) is not necessarily tied to any sort of constitutional or administrative structure, but is rather a socially constructed concept: A region emerges where actors are coming together on the basis of geographic proximity and a shared problem or opportunity (such as accessing structural funds). Geographic proximity is important because it conjures up feelings of interdependence, belonging, trust, and 5 Also compare the manifold examples that Marks and Hooghe give of real world Type 2 MLG. In the majority of cases, these are related to organizations with some territorial basis. 7

solidarity and thus can facilitate the interaction within networks. In more abstract terms, a concept of MLG thus conceived would be interested in the relation between geographical space and the institutionalization of decision-making and implementation capacity; with the former (geographical space) acting as a catalyst for the latter (the process of institutionalization; cf. Fürst 1993). A crucial question in this conception is what kind of benefits territorial proximity has for the organization of interaction within a regional arena. The new regionalism debate (Amin/Thrift 1994; Cooke/Morgan 1998; Crouch et al. 2001) offers a number of interesting answers here. Moreover, one would want to know under what conditions functional networks bound to territory can influence decision-making in multi-level systems or can take over specific tasks of relevance to the higher levels (such as implementation). One important hypothesis is that administrative or constitutional regions are at a certain advantage in organizing such processes of territorial cooperation, but that they have no monopoly on doing so. Empirical cases to research such issues in the EU context 6 could be the intervention areas of the EU structural funds, or implementation networks in EU environmental policy. 5. The discussion on multi-level governance in the 2001 White Paper The concept proposed above also seems plausible in the light of the approach taken in the White Paper on European Governance (European Commission 2001), which is still one of the prime reference points in the discussion of governance in the EU. As is the case in the structural funds model, the White Paper sees public regional and local actors in principle on a par with other social partners. It is argued, for example, that a stronger interaction with regional and local governments and civil society is needed, and that the Commission intends to establish a more systematic dialogue with representatives of regional and local governments through national and European 6 This concept would also still enable comparisons to be drawn between multi-level governance in the EU and global governance. For example, it can be observed in the area of climate protection policies that regions and cities are acting as implementing actors of local Agenda 21 concepts, thus resembling some of the processes that we see in EU environmental policy. 8

associations (ibid.: p. 4, my emphasis). Concerning the dissemination of information about EU policies (discussed under the headword openness ), the White Paper states that the Commission and other EU bodies will promote efforts to deliver information at national and local level, where possible making use of networks, grassroots organisations and national, regional and local authorities (p. 11). While all this in principle relegates regional and local authorities to the role of yet another societal group with the capacity to influence EU policy-making, there are some indications in the White Paper on how regions and localities are still special actors. For example, the Commission explicitly tags regions and cities as an elected and representative channel interacting with the public on EU policy (p. 12). The White Paper also acknowledges the role that subnational government plays in the implementation of a number of key policies, calls for a systematic dialogue with European and national associations of regional and local government and proposes target-based, tripartite contracts ( ) between Member States, regions and localities designated by them for that purpose, and the Commission, where the designated sub-national authority in the Member States undertakes to implement identified actions in order to realise particular objectives defined in primary legislation (p. 13). Judging from these proposals in the White Paper, the Commission wants to mainly use regional and local actors as intermediary institutions on a par with other actors who bolster up implementation and who organise and bundle civil society input. Constitutional status, administrative capacity and the presence of representative institutions (like parliaments) are an asset in that they foster the capacity of regions and localities to organize societal input and to implement policies and to do both in a democratically legitimate and transparent manner. Still, this capacity is not seen by the Commission as being restricted to the regional or local level. It is rather a capacity that is currently more developed there, but which in the medium run could very well be paralleled on other levels of societal organization. 7 7 Cf. the portions of the White Paper dealing with the role of civil society and of networks. As with regions and localities, civil society need to observe standards of accountability and openness (p. 15), and is considered an important partner in implementation. Again, the White Paper envisages 9

6. Summary and recommendations Given that the task of the Ateliers on Multi-level Governance is to develop concrete proposals for action on the basis of the MLG concept, it seems appropriate to first arrive at a clear understanding of what MLG is and implies. This note has opted for the adoption of a Type 2 conception of MLG as proposed by Marks and Hooghe, but modified their ideas by insisting on the crucial role of territory for a viable MLG concept. It was argued that while there is definitely room for geographically defined spaces in the debate on EU governance, the White Paper and the structural funds model imply that constitutional status or the democratic quality of regional and local government will not work as door-openers in all (or even the majority of) cases, and on top of that are nothing that is peculiar to regions and cities. In practice, however, regional and local government can and should exploit their at least for the time being still unrivalled status. Administrative capacity, unmatched democratic legitimacy (where there is a directly elected parliament) and their capacity to credibly represent a given region or locality entitle them to become natural focal points of any sort of political activity at the subnational or transnational level. It will at least be difficult to argue for the exclusion of these actors from decision-making and implementation networks at the subnational level. In practical terms, this would mean that the CoR and more generally regions and cities within the EU should not just insist on special status because of constitutional guarantees, but should rather exploit the opportunities to become crystallization points for subnational networks that the Union badly needs in devising and implementing policies. This agenda would focus on the exchange of experiences between stronger and weaker players within the Committee of Regions and would partnership arrangements with civil society, where the Commission commits to additional consultations in exchange for a pledge by civil society organizations to tighten up their internal structures, furnish guarantees of openness and representativity, and prove their capacity to relay information or lead debates in the Member States (p. 17). Concerning networks, which link businesses, communities, research centres, and regional and local authorities, it is once more argued that they could act as multipliers spreading awareness of the EU and showing policies in action, and that by making them more open and structuring better their relation with the Institutions, networks could make a more effective contribution to EU policies (p. 18). 10

emphasise the Committee s role as a learning platform which has been emerging in recent years. 8 Such a shift of emphasis would of course not rule out the continuation of the opinion-giving function of the CoR, and should also be acceptable to stronger regions who anyway tend to defend their specific interests outside of the CoR, e.g. through subnational embassies and a number of interest associations such as the Conference of European Regions with Legislative Power (REGLEG). In addition, the CoR should continue to address the externalities of multi-level policymaking that are not taken sufficient note of in the current EU governance structure. The consideration of such externalities is in fact one of the prime normative principles that can be derived from a MLG perspective (cf. Marks / Hooghe 2004: 239-241). One starting point in this respect is the protocol on the application of the principles of subsidiarity and proportionality attached to the Lisbon Treaty. It specifies that regional and local actors (among others) are to be consulted before legislative acts are proposed by the Commission (Art. 2 of the Protocol). In addition, there is acknowledgement that draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved (Art. 5). The consistent application of these stipulations could well form a building block for enhanced and truly multi-level governance at the EU level and might alleviate many of the burdens that regional and local entities (however defined) currently experience in EU policy-making. Address for correspondence Dr. Thomas Conzelmann, Universiteit Maastricht Postbus 616, 6200 MD Maastricht, The Netherlands Tel. +31 (0)43 38-82066; Fax -84917 E-Mail : t.conzelmann@politics.unimaas.nl WWW: http://www.fdcw.unimaas.nl/staff/conzelmann 8 For example through the CoR Subsidiarity Monitoring Network, the Open Days and the Interinstitutional Forums. 11

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