EU Policy: Law vs. Intergovernmental Cooperation

EU policy involvement varies not just in its extent but also in its nature. The most important aspect of this varying nature is whether policies rely heavily on EU law or are more based on forms of intergovernmental cooperation.

It used to be the case that in those policy areas where the EU exercised significant responsibilities, well-established and effective policy instruments resting on EU law were almost invariably in place. It also used to be the case that where EU policy involvement was very limited, policy instruments tended mostly to be of the voluntary and persuasive kind.

However, over the years these two generalised statements, and especially the first, have become increasingly less accurate as the EU has made use of an increasing number of diverse policy instruments and mechanisms.

More policy instruments and mechanisms have been used because as the EU has expanded its policy portfolio it has moved into areas where member states have seen advantages in working together but have wished to stop short of making laws that would restrict and bind their own policy choices and options.

Foreign policy — which began to be developed from the early 1970s, which was given a heightened political importance and a sharper focus by the Maastricht Treaty, and which became increasingly operational ‘on the ground' in the 2000s — is a prime example of such a policy area.

The benefits of EU states speaking and acting as one on key international issues are recognised, but such are the political sensitivities associated with foreign policy— and even more so with defence policy, which has come to join foreign policy on the EU's policy agenda — that it has not been politically possible to communitarise it.

Accordingly, it rests essentially on intergovernmental cooperation, which does not involve the making of laws and in which member states agree to policy positions and policy actions on a wholly voluntary basis.

EU foreign policy Chapter 21.

Much of employment and social policy also illustrates how significant EU policy areas can rely heavily on intergovernmental cooperation. With employment and social policy, however, it is a different form of intergovernmental cooperation than that which applies in the foreign policy sphere. Like foreign policy intergovernmental cooperation, employment and social policy cooperation is based on agreements that are reached by consensus in the Council and, because it too does not involve the making of legislation, it is non-binding.

But, intergovernmental cooperation in much of the employment and social policy spheres is different from foreign policy cooperation in that it is largely based on what is known as the Open Method of Coordination (OMC).

As compared with ‘classic' inter-state cooperation such as exists in the foreign policy sphere, OMC is different in three particular ways: the Commission is extensively involved in the making of much of the policy; the policy itself consists mostly of the identification of broad goals, accompanied by guidelines to member states as to how they should be achieved; and there is considerable devolvement of responsibility to the member states as to how each of them operationalises the pursuit of the goals.

(OMC is considered at greater length in Chapter 17).

In the same style as Box 16.1, Box 16.2 plots EU policy areas along a spectrum, in this case according to the extent to which policy areas are based on legal regulation or on inter-state cooperation. Some correspondence between the placement of policy areas in the Boxes can be seen, but so too can some significant differences.