¹ Regionalism has been described as a ‘Zeitgeist’ (European Governance, COM (2001) 429, Report 3B, 22). The demands may be reinforced by realisation that globalisation implies the need for regional institutions to take a more active role to win foreign capital (CM Dudek, ‘Can the European Union Influence the Functioning of Regional Governments?’, EUI Working Papers, RSC No 2000/49).

² See, regarding this distinction, Massart-Pierard, F, ‘La Dialectique européanisation-région-alisation’, in L'Europe et ses régions (The Hague: Facultée de droit, Liéege, 1975), 289–310, 291.Google Scholar

³ In a federation the authority to change formal decision-making rules is shared by governments at different levels rather than monopolised by central government (Elazar, DJ, Exploring Federalism (Tuscaloosa, AL: University of Alabama Press, 1987)).Google Scholar

⁴ European Governance, COM (2001) 428, Report 4C, 13. ‘If it is true that the sovereign state is an illusion, then self-determination should be redefined as the ability to negotiate one's position within the emerging international order’. See M Keating, ‘Plurinational Democracy in a Post-Sovereign Order’, Queen's Papers on Europeanization 1/2002.

⁵ Cf. Strassoldo, R, ‘Globalism and Localism: Theoretical Reflections and Some Evidence’, in Mlinar, Z (ed), Globalisation and Territorial Identities (Aldershot: Avebury, 1992), 35–59.Google Scholar

⁶ J Painter, ‘Regionalism and European Citizenship’, IES Seminar on Europeanisation, 19 Apr 2002.

⁷ Keohane, RO and Nye, JS, Power and Interdependence: World Politics in Transition, 2nd edn (Boston, MA: Little, Brown, 1988)Google Scholar. Cf, regarding the idea of ‘perforated sovereignty’, I Duchacek et al. (eds), Perforated Sovereignties and International Relations (New York: Greenwood, 1988).Google Scholar

⁸ See, eg, Peterson, J, ‘Subsidiarity: a Definition to Suit Any Vision’ (1994) 47 Parliamentary Affairs 116–32.Google Scholar

⁹ See, eg, Jeffery, C, ‘Sub-National Mobilization and European Integration: Does it Make Any Difference?’ (2000) 38 JCMS 1–23.Google Scholar

¹⁰ CM Dudek, op cit, cf also, in the context of enlargement, J Hughes, G Sasse, and C Gordon, ‘The Regional Deficit in Eastward Enlargement of the European Union: Top Down Policies and Bottom Up Reactions’, ESRC ‘One Europe or Several’ Programme Working Paper 29/01 and B Fowler, ‘Debating Sub-state Reform on Hungary's “Road to Europe”’, ESRC ‘One Europe or Several’ Programme Working Paper 21/01.

¹¹ See, regarding the ‘great regard’ paid to state sovereignty by the Spiermann, ECJ O, ‘The Other Side of the Story: an Unpopular Essay on the Making of the European Community Legal Order’ (1999) EJIL 763–90.CrossRefGoogle Scholar

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¹³ In contrast, according to cl 1 of the Preamble to the Charter of Fundamental Rights of the EU (OJ 2000 C346/1), the ‘peoples of Europe [are] creating an ever closer union among them’. The draft charter (<fundamental.rights@consilium.eu.int>) went further and asserted that the ‘peoples of Europe have established an ever closer union between them’.

¹⁴ Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, 12.

¹⁵ Case 6/64 Flaminio Costa v ENEL [1964] ECR 585, 593.

¹⁶ Cf, regarding the EU as a ‘delegate’ of the Member States, G Majone, ‘Europe's “Democratic Deficit”: the Question of Standards’ (1998) ELJ 5–28.

¹⁷ MacCormick, N, ‘On Sovereignty and Post-Sovereignty’, in MacCormick, N, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press, 1999), 123–36, 133CrossRefGoogle Scholar. Thus ‘the exercise of Community powers somehow appears as another mode for the Member States to assume their own sovereignty, not any longer through autonomous, but through common, decision-making’ (Lenaerts, K, ‘Constitutionalism and the Many Faces of Federalism’ (1990) 38 AJCL 205–63, 231).CrossRefGoogle Scholar

¹⁸ ‘Each new phase in the building of the Union requires the consent of the Member States, expressed through a Treaty’. See Dashwood, A, ‘States in the European Union’ (1998) ELR 201–16, 209.Google Scholar

¹⁹ COM (2001) 429. Governance is there defined as ‘rules, processes and behaviour that affect the way in which powers are exercised at European level, particularly as regards openness, participation, accountability, effectiveness and coherence’ (ibid, 8, n 1).

²⁰ Annex I to the Conclusions of the Presidency, 14–15 Dec 2001.

²¹ Cf the declaration of the Austrian, Belgian, and German governments at the Amsterdam IGC (OJ 1997 C340/143). Pluralism seems to have some support in ‘Enhancing Democracy in the European Union’, Commission Staff Working Document (2000). But cf, regarding practical problems of regionalism in relation to ‘new methods of governance’, European Governance, COM (2001) 429, Report 4A, 32.

²² The law may thus lack ‘adequate learning capacities’ (Teubner, G, ‘Autopoiesis in Law and Society: a Rejoinder to Blankenburg’ (1984) 18 Law and Society Rev. 291–300, 298)CrossRefGoogle Scholar. According to AG Jacobs in Case C-50/00 P Unión de Pequeños Agricultores v. EU Council [21 March 2002], para 66, restrictive rules on standing may render EU law ‘blind’. Rather, the law may have ‘distorted vision’. Cf the rigour with which the procedural form for the adoption of a Union act may be examined, once an application has been found admissible (Case C–107/99 Italy v EC Commission: SPPPR [30 Jan 2002]).

²³ Art 7(3) of the Rules of Procedure of the Council (OJ 1993 L304/1).

²⁴ In practice, regional ministers from Austria, Belgium, Germany, and Spain have participated in the Council. See Westlake, M, The Council of the European Union (London: Cartermill, 1995), 57Google Scholar. However, they participate as ‘common representatives putting forward collective subnational positions’.

²⁵ It is envisaged, eg, that a Scottish Executive Minister may speak for the UK in the Council with the ‘UK lead Minister’ retaining overall responsibility for the negotiations. See Scotland's Parliament, Cm 3658, 17. According to para 7(2)(b) of such 5 to the Scotland Act 1998, it is a matter of Scottish ministers ‘assisting ministers of the Crown’. In practice, attendance of Scottish ministers at the Council is infrequent. See Governance of the European Union and the Future of Europe: What Role for Scotland?, Ninth Report of the European Committee of the Scottish Parliament (2001), para 188. Attendance by Scottish Executive officials at meetings of Council working groups is even less frequent (ibid). Cf. the recommendation that the concordats governing formulation of ‘the UK line’ in the Council of the Union should be revised to grant Scottish ministers ‘an automatic right to attend Council of the EU meetings when devolved matters are being discussed and decided upon’ (ibid, para 243).

²⁶ Ministers from devolved institutions must ‘support and advance the single UK negotiating line in the Council’ (Memorandum of Understanding (Cm 4444 (1999)), Part II, para B13). See also Bogdanor, V, Devolution in the United Kingdom (Oxford: Oxford University Press, 1999), 280Google Scholar; and Wright, A, ‘Scotland and the EU: All Bark and No Bite’, in Wright, A. (ed), Scotland: the Challenge of Devolution (Aldershot: Ashgate, 2000), 137.Google Scholar

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²⁸ Case C–302/97 Klaus Konle v Austria [1999] ECR I–3099.

²⁹ Cf T Conzelmann, ‘ “Europeanization” of Regional Development Policies? Linking the Multi-level Governance Approach with Theories of Policy Learning and Policy Change’, EIoP 4/1998.

³⁰ Art 2(l)(c) of Reg 1783/1999 (OJ 1999 L213/1) on the ERDF. See, generally, Evans, A, The EU Structural Funds (Oxford: Oxford University Press, 1999).Google Scholar

³¹ A Evans, ‘Regionalist Challenges to the EU Decision-making System’ (2000) European Public Law 377–400.

³² Commission Reply by Mr Millan to WQ 1390/90 (OJ 1991 C164/5) by Mr Reinhold Bocklet.

³³ European Governance, COM (2001) 428, Report 4C, 13.

³⁴ Cf Jones, HC, The National Assembly for Wales and the European Union (Cardiff: Welsh Office, 1998), 15.Google Scholar

³⁵ Bayerische Staatsregierung v Bundesregierung [1990] 1 CMLR 649. In Manfred Brunner [1994] 1 CMLR 57, 82 the same court found a complaint that the TEU prejudiced the position of the Länder to be inadmissible on procedural grounds.

³⁶ European Governance, COM (2001) 428, Report 4C, 17.

³⁷ Biancarelli, J, ‘La Communauté européenne et les collectivités locales: une double dialectique complexe’ (1991) Revue Francaise d'Administration Publique 515–27, 526Google Scholar. Cf, in the case of the UK, Bogdanor, op cit, 278.

³⁸ Cf, regarding Swiss federalism and European integration, U Sverdrup and S Kux, ‘Balancing Effectiveness and Legitimacy in European Integration: the Norwegian and the Swiss Case’, Arena Working Paper 97/31.

³⁹ Agostini, MV, ‘The Role of the Italian Regions in Formulating Community Policy’ (1990) The International Spectator 87–96.CrossRefGoogle Scholar

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⁴¹ Resolution of 18 Nov 1993 (OJ 1993 C329/279) on the participation and representation of the regions in the process of European integration: the Committee of the Regions, para I of the Preamble.

⁴² K Featherstone, ‘The Political Dynamics of the Vincolo Esterno: the emergence of EMU and the challenge to the European social model’, Queen's Papers on Europeanisation 6/2001. Cf, regarding the effects of EU transport policy on regional disparities, European Governance, COM (2001) 428, Report 4C, 23.

⁴³ According to Art 158 EC, in order to promote its overall harmonious development, the Community shall develop and pursue its actions leading to the strengthening of its economic and social cohesion. In particular, the Community shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions or islands, including rural areas.

⁴⁴ Cf the concern for ‘putting a coherent regional and local dimension back into the complex procedures and processes caused by the Europeanisation of public policies’ (European Governance, COM (2001) 428, Report 4C, 21).

⁴⁵ ‘Political actors respond politically rather than merely yielding to external pressures as hyper-globalists would like us to believe’ (M Zürn, ‘The State in the Post-national Constellation—Societal Denationalisation and Multi-level Governance’, Arena Working Paper 35/99, 2).

⁴⁶ Featherstone, op cit.

⁴⁷ S Bulmer and M Burch, ‘Coming to Terms with Europe: Europeanisation, Whitehall and the Challenge of Devolution’, Queen's Papers on Europeanisation 9/2000.

⁴⁸ Grande, E, ‘Das Paradox der Schache, Forschungspolitik und die Einflusslogik europäischer Politikverflechtung’, in Jachtenfuchs, M and B, Kohler-Koch (eds), Europäische Integration (Opladen: Leske and Budrich, 1995).Google Scholar

⁴⁹ A Moravcsik, ‘Why the European Community Strengthens the State: Domestic Politics and International Cooperation’, Harvard Center for European Studies Working Paper 52 (1994).

⁵⁰ Cf the distinction between internal and external sovereignty in MacCormick, N, ‘On Sovereignty and Post-Sovereignty’, in MacCormick, N, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press, 1999), 123–36, 127.CrossRefGoogle Scholar

⁵¹ See, eg, such 2, cl 3 to the Northern Ireland Act 1998.

⁵² Eg, around 80 per cent of the policy areas devolved to the Scottish Parliament are said to have a EU dimension. See Developments in the European Union, January-June 2000, Cm 4922, 39. See, similarly, European Governance, COM (2001) 428, Report 4C, 21.

⁵³ The ‘decisive and unified national representation reminds critics of an outdated form of personal sovereign power, with negative consequences for each national democratic culture’ (J de Areilza, ‘Sovereignty or Management? The Dual Character of the EC's Supranationalism—Revisited’, Harvard Jean Monnet Working Paper 2/95, 6).

⁵⁴ European Governance, COM (2001) 429, Report 4C, 34.

⁵⁵ See, eg, Case 6/64 Flaminio Costa v ENEL [1964] ECR 585.

⁵⁶ Cf Art 7 TEU. See also the statement of the EU Presidency on Austria on 31 Jan 2000 <http://www.asil.org/insights/insigh40.htm>; and M Merlingen, C Mudde, and U Sedelmeier, ‘Constitutional Politics and the “Embedded Acquis Communautaire”: the Case of the EU Fourteen Against the Austrian Government’, ConWEB, No 4/2000.

⁵⁷ Bull EU 12–1999,1, Annex III, para 14.

⁵⁸ European Governance, COM (2001) 429, Report 4C, 34.

⁵⁹ A Benz and B Eberlein, ‘Regions in European Governance: the Logic of Multi-Level Interaction’, EUI Working Paper RSC 98/31, 4.

⁶⁰ European Parliament Resolution of 18 Nov 1993 (OJ 1993 C329/279) on the participation and representation of the regions in the process of European integration: the Committee of the Regions, para E of the Preamble.

⁶¹ COR Opinion of 17 May 1994 (OJ 1994 C217/10) on the draft notice from the Commission laying down guidelines for operational programmes which Member States are invited to establish in the framework of a Community initiative concerning urban areas (Urban), para 5 of the Preamble.

⁶² Ibid.

⁶³ Art 46 TEU.

⁶⁴ Peterson, op cit, 129.

⁶⁵ This version is made applicable to the EU as a whole by Art 2 TEU. Cf. the distinction between substantive and procedural subsidiarity in Scott, A, Peterson, J, and Millar, D, ‘Subsidiarity: a Europe of the Regions v the British Constitution’ (1994) JCMS 47–68Google Scholar. See also K Neunreither, ‘Subsidiarity as a Guiding Principle for European Community Activities’ (1993) Government and Opposition 206–20.

⁶⁶ Cf the Tenth Amendment to the US Constitution, which provides that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’.

⁶⁷ Cf Council Reply to WQ E–3100/93 (OJ 1994 C147/1) by Víctor Arbeloa Muru.

⁶⁸ ‘Beteiligung der Bundesländer an Regierungskonferenz zur Revision der Gemeinschaftsverträge’ (1990) Europäische Zeitschrift für Wirtschaftsrecht 431.

⁶⁹ Resolution of 18 Nov 1993 (OJ 1993 C329/279) on the participation and representation of the regions in the process of European integration: the Committee of the Regions, para 4.

⁷⁰ COR Opinion of 21 Apr 1995 on the Revision of the TEU and of the EC Treaty, CdR 136/95.

⁷¹ Conclusions of the Presidency, Annex 1 to Part A, Bull EC 12–1992, I.19. See, similarly, para 7 of the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the EC Treaty by the Treaty of Amsterdam.

⁷² Everling, U, ‘Reflections on the Structure of the European Union’ (1992) CMLRev 1053–77, 1071.Google Scholar

⁷³ Commission Reply by Mr Delors to WQ E-3099/93 (OJ 1994 C289/27) by Victor Arbeloa Muru. Cf the approach of the CFI in Case T-465/93 Consorzio Gruppo di Azione Locale Murgia Messapica v EC Commission [1994] ECR II-361. According to AG Saggio in Joined Cases C-400–402/97 Administratión del Estado v Juntas Generates de Guipúzcoa [1 July 1999], para 37, the fact that aid is granted by a regional institution in the exercise of its exclusive competence is ‘une circonstance purement formelle’ for the purposes of Union control of state aid.

⁷⁴ It is for ‘the constituent authorities—the authors of the Treaty’ to distribute powers within Member States.' See Adaptation of Community Legislation to the Subsidiarity Principle, COM (93) 545, 1–2.

⁷⁵ Bogdanor, op cit, 277–8.

⁷⁶ Legislate Less to Act Better: the Facts, COM (1998) 345, 1–2.Google Scholar

⁷⁷ See Evans, A, Textbook on EU Law (Oxford: Hart Publishing, 1998)Google Scholar, s 2.3.1. See, more particularly, AG Tesauro in Case C-58/94 Netherlands v EU Council: access to documents [1996] ECR I-2169, I-2184, n 27.

⁷⁸ See, eg, Dec 96/339 (OJ 1996 L129/24) adopting a multiannual Community programme to stimulate the development of a European multimedia content industry and to encourage the use of multimedia content in the emerging information society (INFO 2000). See also Dec 96/413 (OJ 1996 L167/55) on the implementation of a Community action programme to strengthen the competitiveness of European industry.

⁷⁹ Snyder, F, ‘Soft Law and Institutional Practice in the European Community’, in Martin, S (ed), The Construction of Europe (Deventer: Kluwer, 1994), 197–225.CrossRefGoogle Scholar

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⁸¹ Cf the concerns expressed about soft law in the AER Resolution on the Commission's White Paper on New Governance, 8 and 9 Feb 2001.

⁸² The ECJ may use Treaty provisions in relation to which it lacks jurisdiction for interpretative purposes. See, eg, Opinion 1/91 Agreement with the EFTA States [1991] ECR I-6079.

⁸³ G de Búrca, ‘Reappraising Subsidiarity's Significance After Amsterdam’, Harvard Jean Monnet Working Paper 7/99.

⁸⁴ According to Art 10 EC, Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the Union institutions. They shall facilitate the achievement of the tasks of the European Community. They shall abstain from any measure that could jeopardise the attainment of the objectives of this Treaty.

⁸⁵ See, eg, AG Capotorti in Case 73/81 Commission v Belgium: titanium oxide [1982] ECR 153, 162; and Joined Cases 227–230/85 Commission v Belgium: failure to comply with ECJ judgments [1988] ECR 1, 11.

⁸⁶ A Scott, ‘The Role of Concordats in the New Governance of Britain: Taking Subsidiarity Seriously’, Harvard Jean Monnet Paper 9/2000.

⁸⁷ Barnard, N, ‘Decentralized Government and Subsidiarity’, in Kirchner, E (ed), Decentralization and Transition in the Visegrad (London: Macmillan, 1994), 34–52, 38.Google Scholar

⁸⁸ COM (2001) 429, Report 4C, 1–2.

⁸⁹ Art 149 EC.

⁹⁰ Art 151 EC.

⁹¹ Art 152 EC.

⁹² Art 156 EC.

⁹³ Arts 159, 161, and 162 EC.

⁹⁴ Preamble to Dec 94/209 (OJ 1994 L103/28) winding up the Consultative Council of Regional and Local Authorities. See also Galvez, A Valle, ‘La Cohesione economica y social como objetivo de la Union europea’ (1994) Revista de Instituciones Europeas 341–78, 356.Google Scholar

⁹⁵ European Parliament Resolution of 18 Nov 1993 (OJ 1993 C329/279) on the participation and representation of the regions in the process of European integration: the Committee of the Regions, recital G in the Preamble.

⁹⁶ Opinion of 17 May 1994 (OJ 1994 C217/10) on the draft notice from the Commission laying down guidelines for operational programmes which Member States are invited to establish in the framework of a Community initiative concerning urban areas, para 4 of the Preamble.

⁹⁷ Though according to Art 263 EC, COR members may not be bound by any mandatory instructions. They shall be completely independent in the performance of their duties, in the general interest of Community.

⁹⁸ Cf, regarding policy disagreements within the Committee, Christiansen, T, ‘A Region among Regions: the Wider View’, in Kennedy, D (ed), Living with the European Union: the Northern Ireland Experience (London: Longman, 1999), 17–37, 31.Google Scholar

⁹⁹ Cf the idea of giving ‘the Commission … the possibility to consult a specific sub-group of the Committee of Regions representing regions with legislative powers and/or city networks’ (European Governance, COM (2001) 429, Report 3B, 31).

¹⁰⁰ European Governance, COM (2001) 429, Report 4C, 14. See, eg, C Jeffery, ‘The “Europe of the Regions” from Maastricht to Nice’, IES Seminar on Europeanization, 11 May 2001. See also, regarding problems with the allocation of seats in the COR, N MacCormick, ‘A Comment on the Governance Paper’, Harvard Jean Monnet Working Paper 6/01, 4.

¹⁰¹ Opinion of 17 May 1994 (OJ 1994 C217/26) on the proposal for a decision laying down a series of guidelines on trans-European energy networks, para A.5.1. See, more particularly, regarding Union decisions in the field of fisheries policy, the Opinion of 16 July 1998 on the future of peripheral areas in the EU, CdR 23/98, para 8.6. Cf, regarding the need to ‘look at how interregional organisations and the institutions and bodies of the Union should be interlinked’, 15 (ibid) and, regarding individual regions, 33 (ibid).

¹⁰² Cf Scott, J, Development Dilemmas in European Community (Buckingham: Open University Press, 1995), 34.Google Scholar

¹⁰³ European Governance, COM (2001) 428, Report 4C, 14.

¹⁰⁴ COM (2001) 429, Report 4C, 36.

¹⁰⁵ Cf D Feldman, ‘Public Interest Litigation and Constitutional Theory in Comparative Perspective’ (1992) MLR 44.

¹⁰⁶ See, eg, COR Opinion of 21 Apr 1995 on the Revision of the TEU and of the EC Treaty, CDR 136/95.

¹⁰⁷ In Case C-33/90 EC Commission v Italy: toxic waste [1991] ECR I-5987, I-6008 the ECJ stated that ‘[w]hile each Member State may be free to allocate areas of internal legal competence as it sees fit, the fact still remains that it alone is responsible towards the Community under Article 169 for compliance with obligations under Community law.’

¹⁰⁸ Northern Ireland Act 1998, Such 2, para 3(c).

¹⁰⁹ Cm 4444 (1999).

¹¹⁰ Ibid, Memorandum of Understanding, para 20.

¹¹¹ A, Albors-Llorens, Private Parties in European Community Law (Oxford: Clarendon Press, 1996), 17.Google Scholar

¹¹² AG van Gerven in Case C-70/88 European Parliament v EC Council: Chernobyl [1990] ECR I-2041, I-2058.

¹¹³ Albors-Llorens, op cit, 18.

¹¹⁴ The Treaty of Nice will add the European Parliament to this group.

¹¹⁵ This formula is in effect a codification of the approach taken by the ECJ in its case law on the standing of the European Parliament under Art 173 EEC (now Art 203 EC, as amended). See Case C-70/88 European Parliament v EC Council: Chernobyl [1990] ECR I-2041.

¹¹⁶ According to Case T-70/97 Region Wallonne v. EC Commission [1997] ECR II-1513, regional institutions had no standing to bring annulment proceedings under the ECSC Treaty.

¹¹⁷ Case C-70/88 [1990] ECR I-2041.

¹¹⁸ Ibid, I-2058.

¹¹⁹ Ibid, I-2061.

¹²⁰ AG Jacobs in Case C-50/00 P Union de Pequenos Agricultores v EU Council [21 Mar 2002], paras 38–9.

¹²¹ Albors-Llorens, op cit, 4, n 17.

¹²² Cf, regarding the significance of this deficit for standing questions, AG Jacobs in Case C-50/00 P Unión de Pequeños Agricultores v EU Council [21 Mar 2002], para 86. See also Ward, A, Judicial Review and the Rights of Private Parties in EC Law (Oxford: Oxford University Press, 2000), 203Google Scholar. Cf, regarding ‘reaching out to citizens through regional and local democracy’, European Governance, COM (2001) 428, 12.

¹²³ Joined Cases 62/87 and 72/87 Exécutif Régional Wallon and SA Glaverbel v EC Commission [1988] ECR 1573.

¹²⁴ Ibid, 1592. Cf, earlier, regarding municipalities, Case 222/83 Municipality of Differdange v EC Commission [1984] ECR 2889.

¹²⁵ [1988] ECR 1573, 1582.

¹²⁶ Case C-95/97 [1997] ECR I-1787.

¹²⁷ Amending Dec 88/591 (OJ 1994 L66/29).

¹²⁸ Case C-180/97 [1997] ECR I-5245.

¹²⁹ Ibid, I-5249.

¹³⁰ Ibid, I-5250.

¹³¹ Ibid.

¹³² Case T-238/97 [1998] ECR II-2271.

¹³³ Ibid, II-2285.

¹³⁴ Ibid. See also Case T-609/97 Regime Puglia v EC Commission [1998] ECR II-4051, II-4060.

¹³⁵ [1998] ECR II-2271, II-2285. As AG Lenz had earlier put it in Case 222/83 Municipality of Differdange v EC Commission [1984] ECR 2889, 2905, such a wide circle of persons in the region, including employers, customers, suppliers, and businessmen, might also be affected, that the decision might not easily be regarded as of individual concern to a regional institution.

¹³⁶ [1998] ECR II-2271, II-2285.

¹³⁷ Ibid, II-2285.

¹³⁸ Case C-298/89 Government of Gibraltar v EC Council [1993] ECR I-3605, I-3654.

¹³⁹ Ibid, I-3656.

¹⁴⁰ Joined Cases T-32/98 and T-41/98 Government of the Netherlands Antilles v EC Commission [2000] ECR II-201.

¹⁴¹ Ibid, para 45.

¹⁴² Ibid, para. 49.

¹⁴³ Ibid, para. 56.

¹⁴⁴ Case T-214/95 [1998] ECR II-717.

¹⁴⁵ Ibid, II-733.

¹⁴⁶ Case 282/85 [1986] ECR 2469.

¹⁴⁷ [1998] ECR II-717, II-733.

¹⁴⁸ Case T-288/97 [1999] ECR II-1871.

¹⁴⁹ Ibid, II-1878–80.

¹⁵⁰ Ibid, II-1881–2.

¹⁵¹ Ibid, II-1882.

¹⁵² Joined Cases T-132/96 and T-143/96 [1999] ECR II-3663.

¹⁵³ Ibid, II-3697–9.

¹⁵⁴ Ibid, II-3701.

¹⁵⁵ Ibid, II-3701–2.

¹⁵⁶ Ibid, II-3703.

¹⁵⁷ According to the Progress Report of the Chairman of the Reflection Group on the Amsterdam IGC, Sept 1995, SN 509/1/95 (REFLEX 10) REV 1, the request by COR to have active legal capacity to refer violations of the principle of subsidiarity within each Member State to the ECJ was unanimously opposed by the Group, because the principle of subsidiarity meant that questions relating to internal powers should be dealt with at national level within each Member State.

¹⁵⁸ COM (2001) 429.

¹⁵⁹ Ibid, Report 4C, 36.

¹⁶⁰ According to the COR Opinion of 21 Apr 1995 on the Revision of the TEU and of the EC Treaty, CdR 136/95, the influence of COR opinions on the decision-making process should be stronger, which meant requiring the Union institutions to justify before the Committee any decision not to follow the recommendations contained in the opinions. Thus Art 265 EC should provide: ‘The opinion of the Committee, together with a record of the proceedings, shall be forwarded to the European Parliament, to the Council and to the Commission. In the event of disagreement with the Committee's opinion, these institutions shall inform the COR of the reasons for their position.’

¹⁶¹ See, eg, the Resolution of 4 Apr 2001 on the outcome of the 2000 IGC and the discussion of the future of the EU, CdR 430/2000. Cf. the recommendation that COR should have observer status at ‘relevant’ Council meetings in Governance of the European Union and the Future of Europe: What Role for Scotland?, para 225.

¹⁶² Benz and Eberlein, op cit, 4.

¹⁶³ Cf the idea of creating ‘a “Regional Affairs Council” involving ministers from the various constitutional regions with legislative powers’, in Governance of the European Union and the Future of Europe: What Role for Scotland?, para 225.

¹⁶⁴ Cf, in the case of Belgium, European Liaison, Post-Agreement Northern Ireland and the European Union (Queen's University of Belfast, 1998), 16. Cf also the idea of a ‘Scottish scrutiny reserve’, in Governance of the European Union and the Future of Europe: What Role for Scotland?, para 244.

¹⁶⁵ Art 205(2) EC.

¹⁶⁶ Common Position Paper of the Constitutional Regions Regarding the IGC, Brussels, 20 Sept 2000.

¹⁶⁷ Cf N MacCormick, ‘A Comment on the Governance Paper’, Harvard Jean Monnet Working Paper 6/01.

¹⁶⁸ European Governance, COM (2001) 429, Report 4C, 2. See also G Marks, L Hooghe, and K Blank, ‘European Integration from the 1980s: State-Centric v Multiple-Level Governance’ (1996) 34 JCMS 341–78.Google Scholar

¹⁶⁹ MacCormick, N, ‘Beyond the Sovereign State’ (1993) MLR 1–18, 8.CrossRefGoogle Scholar

¹⁷⁰ Benz and Eberlein, op cit, 11. Cf IJ Sand, ‘The Changing Preconditions of Law and Politics: Multilevel Governance and Mutually Interdependent, Reflexive and Competing Institutions in the EU and the EEA’, Arena Working Papers 97/29.

¹⁷¹ Cf, regarding the resources provided by the EU to regional institutions, Kohler-Koch, B, ‘The Strength of Weakness: the Transformation of Governance in the EU’, in Gustavsson, S and Lewin, L (eds), The Future of the Nation State ( Stockholm: Nerius & Santerus, 1996), 169–210.Google Scholar

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¹⁷³ Cf the emphasis on implementation taking account of regional needs in European Governance, COM(2001)428, 4 and, regarding the ‘policy chain’, 10 (ibid).

¹⁷⁴ Cf, regarding interdependence in Bogdanor, op cit, 283.

¹⁷⁵ A horizontal relationship is said to be the more appropriate in complex and constantly changing societies. See European Governance, COM (2001) 429, Report 4C, 4.

¹⁷⁶ Though not by merging decision-making arenas through the partnership, as is advocated by Scott, op cit, 180.

¹⁷⁷ Concordats on Co-ordination of European Union Policy Issues, Cm 4444 (1999).

¹⁷⁸ In practice, the JMC rarely meets. See Governance of the European Union and the Future of Europe: What Role for Scotland?, op cit, para 186

¹⁷⁹ Memorandum of Understanding (Cm 4444 (1999)), Part I, para 2. Similarly, the JMC cannot make binding decisions (ibid, part II, para A 1.10).

¹⁸⁰ HC Debs, cols 1131–2, 21 Apr 1998. See also HL Debs, col 396, 6 Oct 1998.

¹⁸¹ Bulmer et al, op cit, 51. Cf the argument that Council debates should be published in MacCormick, ‘A Comment on the Governance Paper’, Harvard Jean Monnet Working Paper 6/01, 9.

¹⁸² Memorandum of Understanding (Cm 4444 (1999), part I, para 19.

¹⁸³ This Council is composed of ministers from the Northern Ireland Executive and the Irish Government and is to deal with matters devolved to the former and having cross-border dimensions.

¹⁸⁴ Para 3 of such 2 to the Northern Ireland Act 1998 treats as an ‘excepted matter’ ‘international relations, including relations with … the European Communities (and their institutions)’, though not the exercise of legislative powers to give effect to the work of the North/South Ministerial Council, North/South Implementing Bodies or the British-Irish Council.

¹⁸⁵ See also the NI Concordat (Cm 4444 (1999)), part IIB, para 5.

¹⁸⁶ EJ Kirchner, ‘Transnational Border Cooperation Between Germany and the Czech Republic: Implications for Decentralization and European Integration’, RSC Working Paper 98/50, 9.

¹⁸⁷ Hooghe, L (ed), Cohesion Policy and European Integration. Building Multi-Level Governance (Oxford: Oxford University Press, 1996), 19.Google Scholar

¹⁸⁸ Smith, A, ‘Studying Multi-level Governance. Examples from French Translations of the Structural Funds’ (1997) Public Administration 711–29, 714.CrossRefGoogle Scholar

¹⁸⁹ Ansell, CK, Parsons, CA, and Darden, KA, ‘Dual Networks in European Regional Development Policy’ (1997) JCMS 347–75, 348.Google Scholar

¹⁹⁰ Ibid, 349.

¹⁹¹ Ibid, 356.

¹⁹² The question whether such guarantees should be provided was raised in part II of the Laeken Declaration on the Future of the European Union, Annex I to the Conclusions of the Presidency, 14–15 Dec 2001.

¹⁹³ JJ Anderson, ‘Skeptical Reflections on a Europe of Regions: Britain, Germany, and the ERDF’ (1990) Journal of Public Policy 417–47.

¹⁹⁴ Cf Benz and Eberlein, op cit, 6 and 12, regarding the importance of arrangements within Member States. In the UK much is said to depend on ‘compromise, goodwill and reasonableness’ (N Burrows, ‘Relations with the European Union’, in Hasan, G (ed), A Guide to the Scottish Parliament (London: The Stationery Office, 1999), 125–31, 126).Google Scholar

¹⁹⁵ The UK Government envisages the participation of devolved institutions in the formulation of the UK's policy position on all EU issues which concern devolved matters, ‘subject … to mutual respect for the confidentiality of those discussions and adherence to the resultant line’ (Lord Falconer, ‘Devolution and UK Constitutional Change: Co-operative Policy-Making’, Edinburgh, 25 Feb 2000). Cf the argument that the interests of Northern Ireland, Scotland, and Wales will be less effectively represented in UK relations with the EU, because their respective Secretaries of State lose their executive functions, in Bogdanor, op cit, 281.

¹⁹⁶ Eg, according to s 6(2) of the Northern Ireland Act 1998, the Northern Ireland Assembly may not adopt legislation ‘incompatible with Community law’. See, regarding delegated legislation, s 24(l)(b). Moreover, according to s 26, the Secretary of State may prohibit any proposed action by the Assembly that is considered incompatible with international obligations or require that action necessary to give effect to such obligations be taken. At the same time, according to para 33(b) of Strand One of the Belfast Agreement, the Westminster Parliament will legislate as necessary to ensure the UK's international obligations are met in respect of Northern Ireland.

¹⁹⁷ Part IIB, paras 26–7 of the concordats (Cm 4444 (1999)).

¹⁹⁸ Community Structural Assistance and Employment, COM (96) 109, 26. See also European Governance, COM (2001) 429, Report 4C. The argument that the EU has ‘transformed the nature of transnational relations in western Europe’ (Christiansen, op cit, 32), therefore, involves questionable assumptions.

¹⁹⁹ Case C-2/90 EC Commission v Belgium: waste tipping [1992] ECR I-4431, I-4480. See in the same connection, Case C-155/91 EC Commission v EC Council: waste disposal [1993] ECR I-939.

²⁰⁰ Art 158 EC.

²⁰¹ Art 174(2) EC.

²⁰² Cf the argument that ‘constitutional regions [should] have access directly to the European Court of Justice in case of controversies concerning the lawfulness or validity of governmental or legislative action at the level of the internal nation’, in N MacCormick, ‘A Comment on the Governance Paper’, Harvard Jean Monnet Working Paper 6/01, 14.

²⁰³ Cf the ‘general principle of the right of involvement’ in EU decision-making favoured in Governance of the European Union and the Future of Europe: What Role for Scotland?, para 201 and the idea of ‘partners of the Union status’ (ibid, para 209).

²⁰⁴ Cf, regarding overload by traders, Joined Cases C-267 & 268/91 B Keck and D Mithouard [1993] ECR I-6097. But see AG Jacobs in Case C-50/00 P Unión de Pequeños Agricultores v EU Council [21 Mar 2002], para 102.

²⁰⁵ Judicial review may be ‘representation-reinforcing’ and favourable to ‘pluralistic politics’. See C Sunstein, ‘Constitutions and Democracies: an Epilogue’, in Elster, J and Slagstad, R (eds), Constitutions and Democracy (Cambridge: Cambridge University Press, 1993), 337.Google Scholar

²⁰⁶ ‘As the number of affected parties increases … negotiated solutions incur exponentially rising and eventually prohibitive transaction costs’ (Scharpf, FW, Games Real Actors Play: Actor-Centered Institutionalism in Policy Research (Boulder: Westview, 1997), 70).Google Scholar

²⁰⁷ Case C-95/97 Region Wallonne v EC Commission [1997] ECR I-1787, I-1791. Cf Case T-214/95 Het Vlaamse Gewest v EC Commission [1998] ECR II-717, II-732.

²⁰⁸ This principle may not necessarily be considered adequate by regions with ‘constitutional powers’. See European Governance, COM (2001) 428, Report 4C, 16.

²⁰⁹ COR had already proposed that regions endowed with legislative powers should be granted the right to institute proceedings for the purpose of defending their powers. According to COR, Art 232 EC should provide: ‘The Court shall have jurisdiction under the same conditions in actions brought by the European Parliament, the European Central Bank and the Committee of the Regions for the purpose of protecting their prerogatives. It shall also have jurisdiction in actions brought by the Committee of the Regions against violations of the principle of subsidiarity, and in actions brought by the regions whose legislative powers may be affected by a regulation, directive or decision.’ (COR Opinion of 21 Apr 1995 on the Revision of theTEU and of the EC Treaty, CDR 136/95). Cf the AER call for the grant of standing for regions with legislative powers (Press Release 30 Oct 2000).

²¹⁰ N Burrows, ‘Nemo Me Impune Lacessit: the Scottish Right of Access to the European Courts’ (2002) European Public Law 45–68.

²¹¹ Northern Ireland Act 1998, s 5(6); Scotland Act 1998, s 28(7).

²¹² Nevertheless, the concept is employed in Governance of the European Union and the Future of Europe: What Role for Scotland?, para 210.

²¹³ Lagrange, M, ‘L'Ordre juridique de la CECA vu à travers la jurisprudence de sa cour de justice’ (1958) Revue de Droit Public et Science Politique 841–65, 848.Google Scholar

²¹⁴ They provide no basis for the stable balance in positive law between centrifugal and centripetal tendencies sought by some writers. See, eg, Rivello, R, ‘Il Ruolo delle regioni nel diritto comunitario e nel diritto internazionale: considerazioni sulla normativa vigente e sui progetti di revisione costituzionale’ (1995) Diritto Comunitario e degli Scambi Internazionali 255–308Google Scholar. Cf, regarding their unsuitability in the context of relations between the Union and third states, Evans, A, ‘European Union Decision-Making, Third States and Comitology’ (1998) ICLQ 257–77.CrossRefGoogle Scholar

²¹⁵ The ‘space for a real and serious debate about the demands of subsidiarity’ (MacCormick, N, ‘Beyond the Sovereign State’ (1993) MLR 1–18, 17)CrossRefGoogle Scholar is denied.

²¹⁶ Jeffery, op cit.

²¹⁷ Cf the view that ‘the transfer by Member States of their sovereign rights to the Community legal order in certain specified fields should … be accompanied by a similar transfer of the safeguards which they accord their citizens’ (AG Léger in Case C-353/99 P EU Council v Heidi Hautala [10 July 2001], para 72).

²¹⁸ Cf. Leicester, G, ‘Devolution and Europe: Britain's Double Constitutional Problem’, in Elcock, H and Keating, M (eds), Remaking the Union: Devolution and British Politics in the 1990s (London: Frank Cass, 1998), 10–22, 16.Google Scholar

²¹⁹ Scott, op cit. See also Bulmer et al, op cit, 122.

²²⁰ Cf, regarding the ‘safety-net for secession’ provided by EU membership, P Dardanelli, ‘The Europeanisation of Regionalisation: European Integration and Public Support for Self-Government in Scotland 1979/1997’, Queen's Papers on Europeanisation 5/2001.

²²¹ ‘The juxtaposition of two opposing logics cannot be continued for long without tensions arising, creating harmful effects for European integration and the European identity’, European Governance, COM (2001) 428, Report 4C, 42.

²²² Case C-50/00 P [21 Mar 2002].

²²³ Ibid, para 102. Note that the qualifying phrase ‘by reason of his particular circumstances’ (para 60) was omitted from the concluding paragraphs of the Opinion.

²²⁴ Case T-177/01 Jego-Quéré v EC Commission [3 May 2002], para 51.

²²⁵ Case C-50/00 [25 July 2002].