Large parts of the literature perceive competencies – understood as legislative authority –82 as being closely linked to coordination (and thus consistency) (JOHNSON, 2005:144;
DEBAERE, 2013:49) and as having ‘a decisive aspect determining the character of the emerging European polity’ (BENZ and ZIMMER, 2010:6), whereby scholars note that ‘in arenas where the European Union, because of historically determined structural features linked to the competition between intergovernmentalism and supranationality, demonstrates a diffuse division of labour, unclear competencies and a lack of distinct and homogeneous objectives, the European Union is claimed to be less influential than in arenas where it exhibits clear goals, concerted ambitions and distinct role assignments’ (ELGSTRÖM and JÖNSSON, 2004:219). In other words, the allocation of competencies plays a vital role in the achievement of coordination (and thus consistency), with unclarity and overlaps inevitably increasing the risk of coordination failures, a risk that is most elevated in highly complex multi-level governance systems (MLG) such as the EU which, embedded in a non-hierarchical, interconnected and overlapping framework of interdependence, ‘comprises a number of actors with diverging competences, agendas and interests, different also in their organisational set-up and modus operandi’ (ALBINYANA, 2016:1). This, so scholars, is an issue as there is ‘no clear-cut hierarchy’ (PORTELA, 2009:17), a lack that may lead to ‘gaps because no-one accepts responsibility’ (METCALFE, 1996).
81 In fact, the expert interviews carried out at the beginning of this research project helped to identify potential causal factors.
82 In the legal sense, competencies are understood as ‘the power of a person, business, court, or government to deal with something or
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In fact, according to the literature, EU governance is framed by a MLG system (LEAL-ARCAS, FILIS and ABU GOSH, 2014:19), characterised by a diffusion of authority across multiple levels of governance and involving for example as regards energy, ‘the national, supranational and international levels as well as transnational energy relations’ (KNODT and PIEFER, 2016:75). First developed in 1993 by Liesbet Hooghe and Gary Marks, MLG is the by far youngest theory among all the European integration theories and although directly related to the European integration processes of the 1990s (Single Energy Act (SEA), Treaty of Maastricht), as of today, it is applied to the EU decision-making process as a whole (including policy formulation & implementation). Rooted in federalism, MLG, theoretical basis of which is still evolving (MAY ET. Al, 2006; NILSSON ET. Al, 2012:396), draws on various theoretical approaches, including the institutionalist, neo-functionalist and intergovernmentalist approaches,83 whereby it attaches
great value to the role of both supranational and national actors.84 In this regard, it is defined by
Schmitter (2004:49) 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, and that does not assign exclusive policy compétence or assert a stable hierarchy of political authority to any of these levels’. According to Marks (1993:401-402), this arrangement is the result of a ’centrifugal process in which decision-making is spun away from member states in two directions’, namely up to the European, and down to the subnational and transnational levels. Likewise, decision-making has also moved sideways, i.e. to non-state actors like industry groups or civil society85 which have developed direct vertical links
with the EU institutions over time, not relying on the EU member states as gatekeepers anymore (as postulated in intergovernmentalism) (MARKS, 1993:402; HOOGHE, MARKS and WOLFE MARKS, 2001:4). This, however, does not mean that the EU institutions or the member states do not continue to play an important role (HOOGHE, MARKS and WOLFE MARKS, 2001:3). On the contrary, each territorial level is considered equally important as it holds important resources, such as information, for example. However, they no longer have a monopoly on decision-making powers, but are subject to collective decision making (MARKS and HOOGHE, 2001:2), a circumstance that naturally involves a certain loss of control, as reflected in the decision rule of qualified majority voting in the Council86 (HOOGHE, MARKS and WOLFE MARKS, 2001:4). In fact,
in the view of MLG, all actors are closely entwined with one another, which, however, does not mean that they are not allowed to keep their independence and autonomy (STEPHENSON, 2013:817).
As this suggests, the delimitation of competencies within the EU is an extremely complex process as competencies do not exclusively lie with one actor but are shared by various actors at different levels, reflecting the EU’s multitude of institutions (PORTELA and RAUBE, 2009:10). In this line, the division of competencies has been ‘one of the most important issues in the discussion on the institutional reform and in the processes of Treaty amendment’ (BENZ and ZIMMER,
83 In fact, conceptually positioned between neo-functionalism and intergovernmentalism, MLG allows for a flexible understanding of
European integration and fosters the inclusion of a wide range of different actors.
84 MLG is three-dimensional, referring to both the horizontal and vertical, as well as the diagonal dimension and is, compared with
neo-functionalism and intergovernmentalism, rather actor-centred (STEPHENSON, 2013:820).
85 In this view, ’multilevel governance emerges when experts from several tiers of government share the task of making regulations and
forming policy, usually in conjunction with relevant interest groups’ (HAGUE and HARROP, 2007:282). The most obvious way for these
groups to participate in EU policymaking is via the opening of lobbying offices in Brussels. Another means is the use of domestic channels.
86 which is contested by intergovernmentalists who argue that the policy initiatives and treaty revisions are still subject to unanimity
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2010:5). Here, notably the Treaty of Lisbon has played a key role but whilst it was supposed to provide important support in this area, it was not able to address or eradicate the issue, and eventually even contributed to the problem (BRAUN, 2011:8). Thus, the risk of overlapping continues to persist on both the horizontal and vertical levels providing, in turn, for a fertile soil for turf wars on competence delimitation (BRAUN, 2011:8; DEBAERE, 2013:49).
Horizontal level
One risk of horizontal overlappings arises from the fact that the Lisbon Treaty has failed to clearly define or separate the EU’s external powers from one another, an issue that notably concerns the roles of the European Council, the Commission, the Council and the High Representative and/or the External Action Service (BRAUN, 2011:8). A second risk arises from the Lisbon Treaty entrusting various EU institutions, notably the Commission and the Council, with ensuring consistency. Here Portela and Raube (2009:8) note that ‘the combination of entrusting both Council and Commission with the task of ensuring coherence and the lack of ECJ jurisdiction was unable to eliminate the “grey areas” where the competences of Council and Commission overlapped. However, they go on, saying that despite overlapping competencies in the area of consistency, the Council is the sole organisation responsible for the Common Foreign and Security Policy (CFSP), with the Commission having accepted the ‘loss of a certain portion of autonomy in matters where the Community and CSP competences overlapped’ (PORTELA and RAUBE, 2009:10).
Vertical level
Other than not having been able to properly address the issue of overlapping on the horizontal level, the Treaty of Lisbon also created a source of conflict with regard to the vertical level by setting-up a wide catalogue of different categories of competencies, ranging from exclusive to shared and sui generis87 (DEN HERTOG and STROSS, 2013:383-384), whereby relevant for this
dissertation are however only the first two types.
Exclusive: Exclusive competencies imply that ‘only the Union may legislate and adopt legally
binding acts’ (Art. 2 TFEU).88 Important domains in which the EU holds exclusive competence
are the Customs Union or the Monetary Policy and Common Commercial Policy (Art. 3 TFEU).89
Other than that, the EU shall also have exclusive competence ‘for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence’ (Art. 3 TFEU).
Shared: Shared competencies90 imply that the EU ‘has competence to legislate and adopt legally
binding acts in specific areas, while each Member State remains competent to act as long as the EU has not exercised its competence’ (Art. 2 TFEU)91 or as long as ‘the EU has chosen not to.’92 This,
87 Sui generis (latin, ‘of its own kind’) competencies describe unique or special competencies whose ‘legal and institutional
characteristics are intrinsic to this policy field’ (VAN VOOREN and WESSEL, 2014:94). One policy area that falls under this category is
the CFSP (VAN VOOREN and WESSEL, 2014:95), which in Article 2 of the TFEU is explicitly separated from the other categories of competence (SCHÜTZE, 2015:276). Merriam Webster (Accessed on 20 July 2019).
88 EC (Accessed on 10 December 2018).
89 EC (Accessed on 10 December 2018).
90 One sub-category of shared competencies is parallel competencies which not being explicitly mentioned in the treaties, refer to
situations ‘where the exercise by the EU of its competence does not result in Member States being prevented from exercising theirs.’ They are related to areas like research & technological development or development cooperation and humanitarian aid. EC (Accessed on 10 December 2018).
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however, does not mean that the member states must act independently from the EU. On the contrary, they are always under an obligation to inform and consult the EU institutions ‘so that a common strategy could be considered’ (HERTOG and STROSS, 2013:386). Moreover, for the case that their actions have a negative impact on Union action, they are in theory not allowed to act independently (HERTOG and STROSS, 2013:386). Shared competencies concern for example, not only the areas of freedom, security and justice but also energy (DEN HERTOG and STROSS, 2013:384; Art. 4 TFEU).
In line with what has just been brought forward, it is often assumed in the literature that coordination (and thus consistency) is more extensive in areas in which the EU disposes of exclusive competencies (as this would allow for a hierarchical mode of governance) (JORGENSEN and LAATIKAINEN, 2013:225), with its antithesis being that coordination is limited in areas in which the member states possess a lot of competencies.93 However, other
scholars have concluded that the more competencies the EU disposes of, the more the member states dispose of corresponding control mechanisms (DEBAERE, 2013:49-50). Given this literary confusion, this dissertation will look at the variable ‘competencies’ from a different angle, arguing that coordination (and thus consistency) in a multi-level governance environment does not depend on whether the EU disposes of exclusive competencies or not, but rather on the exercise of competencies and the way these competencies are assigned. To put it simply, one must assume that coordination failures notably result from a lack of clear assignment or ‘the inadequate respect of the principles of subsidiarity and proportionality’,94 true to the motto: the
unclearer the allocation of competencies, the higher the risk of disagreement and the more difficult it is to coordinate and to establish consistency (LEAL-ARCAS and WOUTERS, 2017:46). This leads to the following hypothesis:
(H1): The clearer the allocation of competencies between the different stakeholders involved in EU external energy governance, the more extensive the coordination (and thus the higher the consistency) of their energy policies.
The operationalisation of the variable ‘competencies’ will be based on the European treaties, whereby focus will be on the assignment of competencies within the policymaking process, i.e. along the policymaking stages ‘agenda-setting’, ‘decision-making’, ‘implementation’ and ‘financing & support’. The aim hereby is to examine whether there are any overlapping competence areas that may lead to frictions or whether competencies are clearly distinct from one another.
92 EC (Accessed on 22 August 2018).
93 According to the institutionalist theory, EU external governance is dominated by the EU institutions (which provide ‘the template
for the externalization of EU policies’), with the general hypothesis reading that ‘the more precise, binding, and enforceable EU rules are, the more likely they will be selected, adopted, and implemented beyond EU borders’ (LAVENEX and SCHIMMELFENNIG, 2009:802,
804). In other words: the ‘effectiveness increases with legalization and/or legitimacy’, with the ‘hierarchical mode of governance being
most likely to lead to the effective transfer of EU rules’ (LAVENEX and SCHIMMELFENNIG, 2009:802, 804). Coordination is largely
associated with hierarchy and central control here (METCALFE, 1996), a connotation that, in turn, is linked to the idea of competencies being equated with power (including bargaining powers). Similarly, from a neo-functionalist perspective, integration is achieved in a process in which ‘political actors in several distinct national settings are persuaded to shift their national loyalties,
expectation and political activities to a new and larger center’ (HAAS, 1961:367), and thus depends on ‘the degree to which competencies have been transferred to the supranational level’ (THALER, 2015:144).
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