114
Abstract
The EU decision-making system is a unique
combination of the power of the states and supranational
institutions. The relationship between
the institutions and the states allows us to establish
several competing theoretical explanations
while trying to describe and explain this mutual
relationship. One of the most influential theoretical
explanations is the institutionalism of rational
choice and the associated principal – agent
model. This article is based on the analysis of
the youngest EU advisory body, the Committee
of the Regions (CoR). The article examines the
evolution of the relationship between principal
(Member states) and agent (CoR) and the trend
that can be observed in this process.
Keywords: Committee of the Regions, rational
choice institutionalism, Principal – agent
model.
COMMITTEE OF THE REGIONS:
FROM ADVISORY BODY
TO THE SECOND CHAMBER
OF THE EUROPEAN PARLIAMENT?*
Petr KANIOK
Lenka ĎAĎOVÁ
Petr KANIOK (corresponding author)
Assistant Professor, Department of International Relations
and European Studies, Faculty of Social Science, Masaryk
University, Brno, Czech Republic
Tel.: 00420-549.493.571
E-mail: kaniok@fss.muni.cz
Lenka DAĎOVÁ
Alumni, Department of International Relations and European
Studies, Faculty of Social Science, Masaryk University, Brno,
Czech Republic
E-mail: 273329@mail.muni.cz
Transylvanian Review
of Administrative Sciences,
No. 40 E/2013, pp. 114-136
* Work on this article was conducted within the project
‘Actual Issues of the European and International Politics
(MUNI/A/0754/2012)’
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1. Introduction
The Committee of the Regions (CoR) is the youngest of the advisory bodies of the
European Union (EU). It was founded in 1993 under the Treaty on European Union,
at the request of some member states (MS). The CoR was incorporated into the legislative
process in the first half of the 1990s. Initially, its powers were limited and its
impact can be considered as minimal. However, a long time has passed since 1993
and European integration has evolved. The development was affected by primary
law review, judgments of the Court of Justice of the European Union (CJEU), political
developments in the EU and its MS, and events in the international arena. These
changes have had an impact on the operation of the CoR. As the EU is a dynamic
environment and the shape of the EU has a continual tendency to transform, it can
be assumed that CoR’s position will continue to change. There are interesting views
outlining the development of the EU towards a system that will be more comparable
to the nation state, whether in the form of a federation along the lines of the U.S.A. or
any other model that could be used as the working environment of European multilevel
governance. Considering CoR’s future in this new system, there are several
possible scenarios. The first alternative is integration of the CoR into the European
Parliament (EP) as its second Chamber representing the interests of the Regions (Clifton,
2008). The second option speaks of its transition to EU institution, which should
equal or have similar decision-making powers as the main institutional triangle. Both
changes would likely have a positive impact on the CoR, which would be directly involved
in decision-making and could thus better promote the interests of the regions.
However, these views are not the only ones, and in addition there are also voices
calling for the cancellation of CoR or freezing its advisory status (Christiansen and
Lintner, 2005).
Other than its political relevance, analysis of CoR’s development is also interesting
from a theoretical point of view. The relationships between institutions and bodies
of the EU and MS are often looked at through the lens of rational institutionalism,
in particular by applying the principal – agent (PA) model. EU institutions in this
context are perceived as being in the service of the MS. The aim of this article is to
determine the extent to which the PA model is relevant in the case of CoR and the
extent to which the relationship between agent (CoR) and principal (Member states)
has transformed.
2. Methodology, structure and resources used
This article is a unique case study (Gerring, 2006) characterized by an effort to
examine a phenomenon or event without trying to generalize. In this case, the primary
objective is to examine the CoR and its operation within the EU. The case study
is divided into two parts. Own analysis is preceded by a section dealing with the
theoretical basis and review of research up to date. The article tests the hypothesis
that ‘there is a gradual acquisition of independence by the CoR and a transformation
of the PA relationship in its favor. The CoR is gradually emerging from a position
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of agent of states and is operating as an independent player’. This situation is called
abdication, as the principal ‘resigned’ its primary role and the agent can thus run on
its own. The hypothesis is based on the research of Pollack who applied the PA model
to the institutions of the European Communities (Pollack, 1997). Pollack examines the
functioning of the model and concludes that the degree of autonomy of the agent is
not constant, but there is no status of abdication; there is only an ongoing process of
delegating powers. Autonomy, however, is derived from just one factor – the amount
and effectiveness of control tools which the principal can exercise over the agent.
However, in our article we work on the assumption that in the case of CoR this factor
is not the only one. CoR’s position largely depends on the ambitions that CoR has, and
how it manages to push forward its own initiatives and activities.
The hypothesis is tested by a two-level analytical section. The first one is ‘formal’
and is based on an analysis of CoR’s position in primary law. We analyze the number
and nature of areas where the CoR can express its opinion as well as the tools it has
and opportunities for blocking and changing EU legislation. This section presents the
development trend of CoR’s competences and the powers that have been granted to
it. The second level of analysis could be described as ‘real’. Its aim is to determine
whether / to what extent the CoR is active and whether it seeks to strengthen its position.
The analysis is based on the assessment of five factors:
1. Activity in the adoption of primary law revisions: we monitored CoR’s activity
during preparations for the Intergovernmental Conferences (IGCs), respectively
how was the CoR involved, what it promoted, what was its success etc.
2. CoR’s own activity: the aim is to determine the number and nature of individual
projects the CoR created, what it intended, what was their purpose, and what
were the results.
3. Co-operation with interest groups and participation in networks: we monitored
the rate of co-operation with interest groups and CoR’s activity in networks.
4. International co-operation: we assessed whether the CoR connects with other regional
organizations outside the EU.
5. Control mechanisms of MS: we analyzed which are the tools available to member
states in order to control CoR.
In order to confirm the hypothesis, it is necessary to demonstrate CoR’s increasing
efforts to strengthen its position and at the same time the decreasing control of the MS.
Thus, our analysis should reveal an upward trend in the first four factors and on the
contrary a decreasing trend in the fifth factor.
Overall, the present analysis is based on the allocation of points that are used in different
variations depending on the type of data. Simple methods of scoring are used
to evaluate the increase in formal CoR competencies in primary law revisions and the
assessment of control tools of MS. The granting of new powers in primary law is reflected
by assigning 1 point for each new competency acquired in the revision. Points
are added together and the result is the total number of points for the competencies
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in the individual treaties1
. The degree of control by MS is ranked in the opposite way
– an existing mechanism for the MS receives 1 point. If the mechanism remains, it still
continues to have 1 point, if the tool is removed, this 1 point is replaced with 0 value.
Table 1: The system of scoring factors
ANALYSIS SECTION SYSTEM OF SCORING
Formal level – increase of competencies in
primary law
New competence = 1 point
Real level – requirements, activities, collaboration,
networking
New activity = 1 point;
repeated activity = + 1 point
Real level – control mechanisms of MS
Existing control mechanism = 1 point;
removed control mechanism = 0 points
A more complicated issue is evaluating the increase in CoR’s real activity. In this
case, we did not use a ‘simple’ counting, based on a binary system (0, 1); instead we
used a system based on counting up points for repeated requirements or activity. If
demand or activity appeared again in the next period2
, the score is increased by 1.
This method of counting is used repeatedly in subsequent periods3
. The reason for
this method is that a significant indicator of CoR’s efforts is its insistence on demands.
Moreover, CoR repeating its demands is not only a formal step in the individual IGC,
but it is an expression of the ongoing effort of CoR to change the situation in its favor,
which is, in most cases, supported by practical steps in the form of intensifying cooperation
with partners or development of new initiatives.
3. Theoretical background and previous research
Rational institutionalism theory was first used in the 1970s, in studies of voting patterns
in the U.S. Congress. This research started a period of its application to phenomena
occurring in various forms of political systems (Pollack, 2006, p. 33). The foundation
of the theory of rational institutionalism became a PA model representing its key
element. The PA model was primarily used in economics and was originally known
as the problem of the relationship between principals and agents within the theory of
delegation. It was then brought into the study of politics and international relations,
as it was believed that it could explain problems arising in the creation of any type of
1 The analysis also includes the Treaty establishing a Constitution for Europe, even though
it did not pass the ratification process. The treaty represents a significant milestone, as almost
all changes included in it were subsequently incorporated into the Treaty of Lisbon.
2 Evaluated periods are restricted by signatures of primary laws revisions, as the latter period
added is from signing of the Lisbon Treaty to 2012.
3 Other than evaluating CoR’s proposals’ using the scoring system, we also take into account
their presence in the respective treaty. The reason is to determine the percentage of successful
CoR demands. To avoid bias, the point system is modified to match the way of adding
points for individual repeated demands. If MS have adopted a repeated CoR demand in the
second period (where it received 2 points), they gain additional 2 points for its approval. On
the contrary if not adopted, the requirement is 2 points, but points for MS remain at 0 value.
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contract, or a situation in which policymakers delegate some of their powers to subnational
or supranational levels (Kassim and Menon, 2003, p. 122). The basic setup
of the PA model is that the principal delegates a certain amount of competence and/
or responsibility to an agent, for carrying out certain roles. It is in the interest of the
principal to increase profits and reduce costs by moving them on to an agent (Kassim
and Menon, 2003, p. 122).
From a theoretical perspective the model is simple, as it only involves the relationship
of two participants. When applied we must take into account the fact that the
environment in which the agent and the principal are found is not ideal. Ultimately,
the mutual relationship between principal and agent is influenced by factors that may
have a negative effect on the distribution of powers and interests of participants. The
relationship affects mainly the asymmetric distribution of information, which favors
the agent (Kassim and Menon, 2003, p. 122). It can lead to the fact that an agent having
more relevant data available will behave inappropriately in relation to the principal
and cause him increased costs or other complications. The uneven distribution
of information represents a fundamental problem that needs to be dealt with by the
principal. The principal’s uneven access to information may involve the risk of bad
decisions. A tool that can ensure avoidance of this risk is regular control. To be effective,
it is important to be focused on different levels and various participants and to
control the system’s settings, as well as an agent’s activities and its outputs (Kiewiet
and McCubbins, 1991).
The listed characteristics are shared by most authors. Disputes arise when considering
how the relationship between an agent and a principal can change. One group
argues that the delegation of competences can lead to a state of abdication (Lupia and
McCubbins, 2000). The principal resigns, stops controlling the agent, which then becomes
a full participant. The second group argues that such a situation cannot occur
and delegation is always delegation. The agent’s autonomy may not remain constant,
depending on the conversion of the external and internal conditions (Pollack, 1997).
The PA model is often used for research into the delegation of powers. If an object
of interest is a nation state and its structures, then authors examine the functioning of
delegation in different types of political arrangements (Strøm, 2000; Mitchell, 2000) or
the method of delegation in national hierarchy (Müller, 2000; Huber, 2000; Andeweg,
2000; Saalfeld, 2000). In the case of delegation to a supranational body, we need to
determine how are the states able and why are they willing to delegate sovereignty
to another entity followed by a transfer of control. That is why the PA model is often
applied to the EU political system. In case of the EU, research is complicated by the
multilevel structure in which the number of principals4
can be identified. By default,
4 There are also cases of multiple delegations (existence of several principals and agents),
so there is an overlap of roles and interests, resulting a in large a complexity of the system
(Coen and Thatcher, 2008; Gailmard, 2009).
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states are perceived as principals and transnational institutions as agents (especially
the European Commission and the CJEU). Scholars thus monitor the transformation
of competencies and acquisition of independence (Pollack, 1997; Morgul, 2011).
Secondly, research focuses on the position of the European Parliament (EP) and the
Council of the EU, then subsequently on delegation of powers of MS on regulatory
agencies (Pollack, 1997). Least attention is paid to the advisory bodies, and not only in
the context of application of the PA model5
.
4. Formal autonomy of agent – development of primary law
4.1. The EU Treaty
The EU Treaty laid the foundations of the CoR and defined its role in the EU. The
provisions concerning the CoR were brief; all the information fitted into one article
(198 a-c), which provided for the structure, number of members, range of activity as
well as fundamental powers of the CoR (TEU, 1992).
The provisions act as if the MS ‘by the way’ established an advisory body, which
was supposed to correspond with the already existing European Economic and Social
Committee (EESC)6
and to act as an ‘assistant’ to the Council of the EU and the European
Commission (EC). The CoR consisted of 189 members, its term of office lasted
four years; the Presidency was elected and nominated for half the period. Members
of the CoR could be nominated repeatedly. It is interesting that the provision obliges
members of the CoR to act independently regardless of their nation-state of origin and
defend only the interests of the EU (TEU, 1992).
The powers of the CoR were clearly established. Its status was defined as advisory,
acting in very specific areas relevant to regional policy. It was considered that
cooperation was essential in order to create and/or accelerate joint action of the EU. It
also was an area that did not fit into the first pillar and was completely in the hands
of the MS (TEU, 1992). The Treaty allowed for CoR to be consulted also in other cases,
and gave it space for its own initiatives. If we evaluate the CoR’s position in Table 2,
it receives 4 points.
Table 2: CoR’s evaluated score under the TEU
CHANGES POINTS
CoR as an advisory body to the Council and EC 1
Activity in 5 areas 1
Voluntary consultations 1
CoR’s own-initiative 1
TOTAL 4
5 Exceptions are, e.g. McCarthy, 1997 or Hönnige and Panke, 2012, writings mapping the impact
of advisory bodies on EU legislation.
6 Connection between CoR and EESC is specified in Protocol No. 16 of the EU Treaty, which
says that CoR’s operation and its structure follows EESC (TEU, 1992).
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4.2. The Treaty of Amsterdam
CoR’s structure and term remained the same; however, due to the previous enlargement
of the EU the number of its members increased to 222 (ToA, 1997). More
significant was the increase in number of areas where the CoR acquired a consultative
voice. Five other areas were added to the original five, increasing range of competencies
by 100%. Another change was the extension of the advisory role for the European
Parliament (ToA, 1997). The last change was the lifting of Protocol No. 16, which
bound the operation and management of the CoR with the EESC. According to this
protocol the CoR could not decide independently on its administrative and budgetary
matters (CoR, 2009a). By lifting of the Protocol, CoR separated itself from the EESC
and was allowed to start ‘living its own life’. This was also supported by the fact that
from the Treaty of Amsterdam onward, the CoR was not subject to approval of the
Rules of Procedure by the EU Council (ToA, 1997). Taking into account all changes,
the result is Table no. 3, with 8 points.
Table 3: CoR’s evaluated score under the Treaty of Amsterdam
CHANGES POINTS
Status under the previous Treaty 4
CoR as an advisory body for the EP 1
Powers extended to 5 more areas 1
Administrative and fiscal autonomy 1
Rules of procedure are not subject to the approval of the Council 1
TOTAL 8
4.3. The Treaty of Nice
The Treaty of Nice retained all CoR’s powers and it did not add other areas or
otherwise changed its position. It established the increase in the number of members
to 317, valid after EU’s enlargement to 25 MS and it defined a cap of 350 members
after the upcoming accessions of Romania and Bulgaria (ToN, 2001). In addition, it
brought a minimum of adjustments related to the internal functioning of the CoR, and
in particular the procedure for the appointment of new members and alternates. Until
then, there had been no rule determining who can and who on the contrary cannot
feature in the CoR. Since 2003, only representatives of regions and cities could get into
the CoR and were able to remain in office only as long as their political mandate was
valid (ToN, 2001). This measure was directed at strengthening links between regional
and local levels and the level of the EU. It also changed the way in which members of
the CoR were approved by the Council – unanimity was replaced by QMV. However,
these changes were rather ‘cosmetic’ improvements and did not significantly affect
the CoR. The total number of points shown in Table 4 is 10.
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Table 4: CoR’s evaluated score under the Treaty of Nice
CHANGES POINTS
Status under the previous Treaty 8
Connection to regional or local mandate 1
Change the way of members nomination 1
TOTAL 10
4.4. The Constitutional Treaty
Innovations brought by this Treaty consisted both in formulations used and in the
emphasis placed on the importance of regional and local levels, as well as in practical
steps. Concerning rhetoric, MS were aware of the need to devolve decision-making
to these levels. Therefore, they emphasized respect for regional, local and national
identity. The Constitutional Treaty recognized the importance of local and regional
government for the first time, which aimed to contribute to the building of a European
identity. Also, territorial cohesion was added to its goals, which in reality was to bring
greater attention to European regions and regional adaptation of policy differences
(CT, 2004).
The treaty also increased CoR’s power. For the first time, the MS extended application
of subsidiarity to the regional and local level and the CoR thus became protector
of lower levels of governance and controller of EU decision-making institutions (CT,
2004). To make its activity effective, the CoR was given power to give incentive to
CJEU, namely in cases that experienced a breach of subsidiarity or if the CoR was
not consulted by institutions when adopting new legislation. Control was added to
the CoR’s advisory capacity. As it was established that the principle of subsidiarity is
mandatory throughout the negotiations on the legislation draft, the CoR could thus
get involved deeper into decision-making processes and have the opportunity to influence
them (CT, 2004). The last change was an extension of the mandate to 5 years
and at the same time extension of the mandate of its President and Presidency for 2.5
years. The aim of the measure was the gradual alignment of the CoR’s term with the
term of EP and EC, which should establish greater consistency in EU policy-making
(Dublin Regional Authority, 2004).
Table 5: CoR’s points evaluated score under the Constitutional Treaty
CHANGES POINTS
Status under the previous Treaty 10
Extension of the application of the principle of subsidiarity to CoR 1
Possibility to take an initiative to the CJEU 1
Extension of its term – compliance with the EP and EC 1
TOTAL 13
4.5. The Lisbon Treaty
The Lisbon Treaty confirmed the extended application of the principle of subsidiarity.
CoR controls the institutions in this area and in case of a suspected breach of
the principle of subsidiarity it gives incentive to CJEU. The treaty also confirmed the
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proposal to extend the term of CoR and recognizes the growing importance of regions
and cities (LT, 2007). The last change broadens CoR’s activities by 3 additional policies.
The number of areas in which the CoR now acts as an advisory body ascended to
13. Thus, the CoR received under the Lisbon Treaty the highest number of 14 points.
Table 6: CoR’s points evaluated score under the Lisbon Treaty
CHANGES POINTS
Status under the previous Treaty 13
Activity extended to other 3 areas 1
TOTAL 14
5. Real autonomy of agent – analysis of factors
5.1. Activity in the primary law revision
The IGC process preceding each primary law change is important in the distribution
of responsibilities to institutions. The IGC is thus a tool where states and institutions
can present their vision of future development and seek to agree on other
arrangements favorable to their position. This process is significant as it shows the
ambition of institutions or bodies. When comparing the objectives and results of their
efforts, we can see how successful the participants were in promoting their interests.
The CoR first presented its opinion in 1996 (CoR, 1996), when it expressed support for
institutions in promoting its own proposals. The CoR commented in two areas that
were its concern. The first area was the principle of subsidiarity – the CoR considered
its adoption as a good step; on the other hand, it was concerned about the principle’s
application. The first objection was that the content of article 3b vaguely defined subsidiarity
and did not specify how its compliance should be tracked and monitored
(CoR, 1996). At the same time the CoR considered the process of protection of subsidiarity,
starting with problems in overseeing subsidiarity compliance in an initial stage
of the legislative process, and afterwards trying to determine the actors and specific
means it could employ to warn on subsidiarity violations. In this manner, the CoR
presented several proposals. The first one was the reformulation of article 3 stating
that subsidiarity applies not only to sharing of competences between EU and MS, but
that the Treaty provided for its validity across various levels of government. The purpose
of the second proposal was upgrading the CoR to a supervisory body for breach
of subsidiarity. In this sense, CoR should be involved in the monitoring process and
in the event of an infringement it should be able to lodge an appeal to the ECJ (CoR,
1996). The CoR had already demanded the right to submit a case to the ECJ. It is worth
mentioning that the CoR also tried to ensure that regions with legislative powers have
more rights than rest of its members and are able to address the ECJ not only for the
protection of subsidiarity, but also to defend their rights against the state.
The second area was represented by CoR’s powers and its position was based on
its definition in the EU Treaty. The CoR requested administrative and budgetary autonomy,
as well as independence in adopting its own rules of procedure. The CoR
requested its members be tied up with the regional and local levels (CoR, 1996), and
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wanted to broaden its range of activities and extend its advisory role also for the EP
and, last but not least, CoR required the right to receive explanations from EU institutions
in cases where its opinion on legislation was not taken into account. Overall, 11
points are the result of scoring, but only less than half of these proposals were considered
in the Treaty.
Table 7: CoR’s demands prior to the Amsterdam IGC and their consideration into the Treaty
REQUIREMENTS POINTS TREATY
Change to formulation of subsidiarity 1 0
Distribution of responsibilities between governing levels 1 0
CoR as the controlling body of subsidiarity 1 0
Lodging ECJ appeal – subsidiarity 1 0
Lodging appeal to ECJ – regions with legislative powers 1 0
Administrative and fiscal autonomy 1 1
Independent adoption of the Rules of Procedure 1 1
Interconnection of CoR’s mandate with regional and local level 1 0
Consultative role – EP 1 1
Justification of failure to take into account CoR’s position 1 0
Extension of powers 1 1
TOTAL 11 4
The subsequent Treaty of Nice did not represent a huge increase of competences
for CoR. This doesn’t mean that the CoR did not try to change its status. Prior to the
IGC, the CoR followed the preparations and issued a series of documents related to
the proposed changes. The first one was issued in 1999 and the CoR repeated some
of the requirements that hadn’t been considered in the past (CoR, 1999). The CoR
demanded reformulation of subsidiarity, division of responsibilities for its protection
and linking of the CoR’s mandate within the regional and local levels. CoR’s requirement
to have the right to appeal with its submission to the ECJ persisted, mainly
for the protection of subsidiarity and/ or the protection of their rights in the case of
regions with legislative powers. Moreover, the CoR wanted to change its status and
to be recognized as an institution of the EU under Article 7 (1) of the EC Treaty (CoR,
1999). This statement is important as the article defines the basic institutional structure
of the EU. In this document, the CoR made clear for the first time its ambition to
fully integrate itself into the decision-making process.
In the second document, the CoR mentions extension of its activities to various
areas and where it requires MS to adopt respect for regional and local government
as one of its basic principles. The CoR also insisted that institutions had to explain
their actions, if its opinion was not taken into account when adopting legislation. This
obligation was limited to the EC and EU Council. The EP could have done so at its
own discretion. The last one was a proposal of the EC to reduce the number of CoR
members to match a third of the EP’s members. The CoR did not agree with this proposal,
arguing that after enlargement the cap should be set at a total of 350 members
(CoR, 2000).
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CoR’s requirements prior to the adoption of the Treaty of Nice are shown in Table
8. The CoR was not satisfied with the status achieved in the previous revision. Its
efforts did not meet majority support, which is shown in the disparity of points obtained
for demands and the final version of the Treaty.
Table 8: CoR’s demands prior to the Nice IGC and their consideration into the Treaty
REQUIREMENTS POINTS TREATY
Change to formulation of subsidiarity 2 0
Distribution of responsibilities between governing levels 2 0
CoR as controlling body of subsidiarity 2 0
Lodging ECJ appeal – subsidiarity 2 0
Lodging appeal to ECJ – regions with legislative powers 2 0
Interconnection of CoR’s mandate with regional and local level 2 2
Justification of failure to take into account CoR’s position7
1 0
CoR’s recognition as an institution 1 0
Extension of responsibilities 2 0
Principle of respect for regional and local government 1 0
Maximum number of members 350 1 1
TOTAL 18 3
The Constitutional Treaty was a document aimed at changing the shape of the EU
after the Treaty of Nice, but it did not pass the ratification process. In this case also
CoR was not passive and in fact it issued a comment to every procedure that MS or
institutions made, in the form of opinion or resolution. This means that the CoR commented
on the European Council meeting in Laeken (CoR, 2002a), which resulted in
the establishment of the Convention. The following year, it commented on the Convention
(CoR, 2003a), and finally gave an opinion on the IGC in 2004 (CoR, 2004a). Its
views were consistent in all documents and it constantly reiterated the importance of
its needs and strived to fulfill them.
The CoR insisted on fulfilling all the requirements that MS were not willing to
accept in the past. Despite them, the CoR wanted to adopt additional measures that
would strengthen its position. It was an extension of its range of activities to protect
the subsidiarity not only through the ex-post control but also through an ex-ante
control, and to monitor the legislative process (CoR, 2004a). The CoR also advocated
extension of its term to five years. In addition, it claimed the right to question the EC
at its own discretion (CoR, 2004a). The CoR achieved the adoption of a large part of
its demands in the Constitutional Treaty, especially those for which it had already
militated at a previous IGC.
7 This requirement was assigned only 1 point for the Treaty of Nice, even though it appeared
repeatedly. The reason for not increasing the number of points is the fact that CoR modified
its demand and it was thus perceived as new.
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Table 9: CoR’s demands prior to the Rome IGC and their consideration into the CT
REQUIREMENTS POINTS TREATY
Change to formulation of subsidiarity 3 3
Distribution of responsibilities between governing levels 3 3
CoR as the controlling body of subsidiarity (ex-post) 3 3
Lodging CJEU appeal – subsidiarity 3 3
Lodging appeal to CJEU – regions with legislative powers 3 0
Justification of failure to take into account CoR’s position 2 0
CoR’s recognition as an institution 2 0
Extension of responsibilities 3 0
Principle of respect for regional and local government 2 2
CoR as controlling body of subsidiarity (ex-ante) 1 1
Extension of term 1 1
Right to address questions to the EC 1 0
TOTAL 27 16
The reflection period lasted approximately two years and in 2007 preparatory
work for a new revision began. The CoR also commented on the situation during the
reflection period and tried not to persist in its activity (CoR, 2006a). The CoR issued
its stance on the IGC in 2007 and formulated its requirements differently than in the
past (CoR, 2007a). In the past, it called directly for inclusion of amendments into the
Treaty. In this case, on the contrary, CoR demanded that previously agreed changes
were retained in all subsequent revisions (CoR, 2007a).
Table 10: CoR’s demands prior to the IGC in Lisbon and their consideration into the Treaty
REQUIREMENTS POINTS TREATY
Change to formulation of subsidiarity 4 4
Distribution of responsibilities between governing levels 4 4
CoR as the controlling body of subsidiarity (ex-post) 4 4
Lodging CJEU appeal – subsidiarity 4 4
Lodging appeal to CJEU – regions with legislative powers 4 0
Justification of failure to take into account CoR’s position 3 0
CoR‘s recognition as an institution 3 0
Extension of responsibilities to further areas 4 4
Principle of respect for regional and local government 3 3
CoR as controlling body of subsidiarity (ex-ante) 2 2
Extension of term 2 2
The right to address questions to the EC 2 0
TOTAL 39 27
The CoR considered that proposals that were already agreed upon with the MS in
the previous IGC were valid and hoped that a situation that would jeopardize its position
would not occur. As shown in Table 10, the CoR achieved most of its objectives.
The exception is the special status of regions with legislative powers, where MS have
been reluctant to support their right to lodge appeals with the CJEU. The CoR was
also unsuccessful in an attempt to introduce the obligation of institutions to explain
their opinions in absence of its stance on legislation, as well as in attempts to change
its status of advisory body and the right to address any questions to the EC.
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As it can be seen, the CoR was not passive when primary law revisions were adopted.
Prior to each IGC it addressed a set of requirements to institutions and MS.
The CoR obviously has never lacked ambition since its first days. It was shown most
significantly before the Nice IGC, where CoR mentioned its ambition to become an
EU institution and thus escape from its subordinated position. Although these efforts
remained unanswered, the fact that the CoR is considering such a change is an important
step.
If we look at the percentage of CoR’s requirements that were taken into account in
Treaty revisions, we can conclude a few interesting facts. Firstly, MS were quite willing
to accept the CoR’s demands before the IGC in Amsterdam. Then there was a decrease
of this attitude, as the Treaty of Nice did not bring the expected result, because
less than 17% of CoR’s demands were adopted. Then the success rate rose and the best
result that the CoR achieved is related to the last treaty revision.
Figure 2 shows CoR’s requirements in absolute numbers, the number of requirements
that were repeated, and the number of requirements that were accepted. Most
demands appeared repeatedly, even two or three times. This indicates that the CoR is
not giving up and it insists on its views. This approach appears to be successful, since
the percentage of accepted requests is larger with every revision of primary law. A
question that results from this analysis refers to the reasons that may have caused the
decline in the increase of powers in the Treaty of Nice. There are a few possible explanations
– either the CoR was not active enough or it did not put enough pressure, or
there were other obstacles from the perspective of MS or the EU.
Figure 1: Success of CoR at IGCs
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Figure 2: CoR’s requests at IGCs
5.2. CoR’s own activities
The CoR has carried out its own activities from the very beginning. CoR’s own
activities were evaluated in terms of their existence and their quantitative increase, as
due to their differing nature they cannot be assessed qualitatively.
The first category is organization of events, mostly aimed at regional and local
priorities. The first major event was organized by CoR in 1997, and it consisted in a
meeting of regional and local representatives – European Summit of Regions and Cities
(CoR, 1997). From that first meeting the summit began to take place every three
years and it became a traditional event. In 2004, the CoR decided to continue with the
presentation of regional and local priorities and started an annual event – Open Days
(CoR, 2004b). This event focuses on current EU issues. In addition to these two main
conferences, other events are organized, based on CoR’s needs and aspirations. These
include a conference on public communication EuroPCom (CoR, 2010a) or some regular
fora (CoR, 2005).
The CoR is involved in European policies through its website and publications.
The general public can access brochures, experts can ask for professional publications
to be sent. In addition, through its website CoR informs the public on access to its
internal norms and documents (CoR, 2005). Also, in 2003, the CoR published its Code
of Ethics following efforts of MS to ensure transparency in the political process (CoR,
2003b). The Code of Ethics can be considered as important because by adopting it the
CoR joined other institutions with similar adopted documents.
When evaluating the point system, it is clear that the CoR has intensified its efforts
in organizing events and publishing as well as in informing the public. Scoring of activities
for each period is shown in Table 11.
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Table 11: CoR’s own activities
ACTIVITY/ PERIOD 1992 - 1997 1998 - 2001 2002 - 2004 2005 - 2007 2008 - 2012
Summit 1 2 3 4 5
OPEN DAYS 0 0 1 2 3
EuroPCom 0 0 0 0 1
Forum 0 0 0 1 2
Code of Ethics 0 0 1 2 3
Brochures 0 0 0 1 2
Studies 0 1 2 3 4
Total 1 3 7 13 20
5.3. Interest groups and networks
The research of CoR and its cooperation with interest groups8
is difficult given the
fact that in addition to formal groups, informal groups exist as well. Convincingly,
it is only possible to examine the formal level, because at this level there are official
records, either on CoR’s or interest groups’ websites. The second level is difficult to
grasp, as there is no record of the debate – a large amount of communication does not
take place within institutions, but at the regional and local level. The only source of
information is thus represented by members of CoR, who have confirmed that they
are regularly contacted by citizens and associations9
. Interviews also show that hand
in hand with reinforcement of CoR’s competencies, contact with interest groups at
lower levels is also on the increase.
A similar ‘shadow group’ are stakeholders. The CoR might consider anyone who
is affected by present legislation as a stakeholder. The CoR regularly organizes public
debates where stakeholders are invited in order to express their opinion (CoR, 2012).
The CoR publishes on its web site only the information about proceeding events without
publishing the list of attendance. Therefore, it is not possible to determine the
participants to these events, the subjects presented, and whether proposals were considered
in the final decision of the CoR stance.
It is much easier to assess officially declared cooperation with partners. This is particularly
the case of cooperation with associations, which CoR started in 2002 (CoR,
2002b). The first of these associations was the Assembly of Regional and Local Authorities
and gradually more such organizations were added. Today, the number of
partners is stabilized at 20, where 9 are European associations, and 11 are local associations
of smaller groupings. Cooperation is based on action plans. The CoR has signed
with some associations a declaration of common interest, where the framework and
objectives of cooperation are defined (CoR, 2002).
8 An entity with some interest is perceived as an interest group that wants to influence the
political process.
9 Interviews conducted by Lenka Daďová with CoR members and alternate members Beata
Balkova, Linda Kopecka, Martin Hakel, Milan Belica, Ondřej Benešík, Petr Osvald, Petr Soukup
and Sylva Kováčiková.
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Cooperation with associations is followed by so-called interregional groups. At
the end of 2012 there were 8 such groups (CoR, 2007b). A certain number of members
who meet regularly to solve specific problems are a permanent platform. The current
number of groups might not be final and if necessary their number could be increased,
as it did in 2009, when the CoR decided to establish the so-called ‘Crisis groups of
Automotive Industry’ (CoR, 2009b). The last platform is represented by networks. The
CoR established its own system of networks focusing on the involvement of regional
and local representatives and obtaining their views and practices. The CoR produces
extended thematically focused workplaces that address the most important issues.
Currently there are 5 networks arising from 2006 to 2010.
CoR’s institutionalized cooperation would have no results without presentation of
its outputs. In 2003, this platform became the so-called ‘structured dialogue’, through
which the CoR could introduce proposals of changes or improvements to the EC, resulting
from discussions with interest groups (CoR, 2003c). The dialogue takes place
at two levels – general, at which President of the CoR meets the President of the EC
and discuss year-round program of the EC, and thematic, where there is an opportunity
to discuss specific problems with the Commissioner.
Analyzing Table 12, it is clear that CoR’s collaboration with interest groups has
undergone development and today it has a strong system involving many interest
groups.
Table 12: Scoring of cooperation of CoR and interest groups (IG)
ACTIVITY/ PERIOD 1992 - 1997 1998 - 2001 2002 - 2004 2005 - 2007 2008 - 2012
Association 0 0 1 2 3
Interregional groups 0 0 0 1 2
Structured dialogue 0 0 1 2 3
Networks 0 0 0 1 2
IG and investors 1 2 3 4 5
TOTAL 1 2 5 10 15
5.4. International cooperation
The CoR does not avoid international cooperation, even if it is not its priority.
It is connected to only two groups that have extra-European reach. The first is the
Euro-Mediterranean Regional and Local Assembly (ARLEM) – a consultative body
composed of members of the EU and their counterparts from the Mediterranean region
(CoR, 2010b). The second grouping is The Conference of the Regional and Local
Authorities for the Eastern Partnership (CORLEAP) representing CoR’s cooperation
with lower levels of government in Moldova, Belarus, Georgia, Ukraine, Armenia and
Azerbaijan (CoR, 2011).
There are several interesting facts regarding CoR’s international cooperation.
Firstly, both organizations were founded late (2010-2011). Previously the CoR did not
operate outside the EU and was focused exclusively on promotion of its interests. A
turning point seems to be the signing of the Lisbon Treaty, which meant achieving
most of CoR’s objectives. Following this success, the CoR reduced pressure on MS
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Table 13: Scoring of international cooperation
ACTIVITY/ PERIOD 1992 - 1997 1998 - 2001 2002 - 2004 2005 - 2007 2008 - 2012
ARLEM 0 0 0 0 1
CORLEAP 0 0 0 0 1
TOTAL 0 0 0 0 2
and started to direct its activity elsewhere. Secondly, although CoR speaks about ‘an
international cooperation’, this term is slightly exaggerated. From the list of states, it
is clear that these countries are a priority for the EU’s foreign policy and the CoR just
follows the general direction of the EU. Mediterranean and Eastern Europe are areas
where the EU seeks cooperation, because these countries are geographically closest
and their problems might pose a risk to the EU.
6. Control mechanisms and their utilization
In order to enforce all of its activities and opinions, the CoR needs freedom in decision
making. However, it has been quite difficult to enforce measures that would lead
to an increase in its importance in such way that the states would lose control over the
CoR. The Treaties contain no control mechanisms that the states should have available
against the CoR. There are other ways to maintain control over the CoR and states do
not need any explicit provisions of primary law.
The first way is the CoR’s status as an advisory body. By repeated dismissal of
changes in CoR’s status in the previous IGCs, MS keep the CoR in a subordinate position
with a weak influence. The most powerful control tool is a provision enabling
both MS and institutions to ignore CoR’s opinion. MS and institutions – as can be
seen in repeated rejection of this demand – do not want to give up completely this
control tool or even restrict it partially. In addition, MS retain control by lasting
restriction of the CoR’s powers in certain areas. An advisory role of the CoR is
present only in those areas where it suits MS; in others, the CoR only has the opportunity
to submit an opinion on its own initiative. Thus, the CoR is mute on the
most relevant issues regarding EU basic principles. It is only really responsible for
issues related to so-called ‘low policies’. However, the CoR has improved its position
and weakened some states’ rights by earning the right to the protection of subsidiarity
and referral to the ECJ, and by becoming administratively and budgetarily
independent, and that its own procedure rules are not a subject of approval by the
Council. Disregarding the control of subsidiarity, concessions are small and MS still
maintain control where it suits them and enable concessions only where they don’t
mind. General conditions and conversion of the control mechanisms are captured in
Table 14, which shows the control tools MS keep (1) and which, over time, they have
given up (0). As a score can be observed for each period, from 1992 to the present
there has been a slight decrease in control of states and the trend is indeed decreasing,
but gradually.
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Table 14: Overview of control mechanisms
MECHANISM/ PERIOD 1992-97 1998-2001 2002-04 2005-07 2008-12
Advisory Body 1 1 1 1 1
Non-binding opinion 1 1 1 1 1
Limited powers 1 1 1 1 1
Control of subsidiarity 1 1 1 0 0
Administrative and budget control of CoR 1 0 0 0 0
CoR’s control of the Rules of Procedure 1 0 0 0 0
Opportunity of CoR to appear before CJEU 1 1 1 0 0
TOTAL 7 5 5 3 3
7. Conclusion
The aim of the analysis was to confirm or refute the hypothesis that ‘there is a
gradual acquisition of independence of the CoR and a transformation of principal –
agent relationship in its favor’. There was also an assumption that this shift is caused
by the range of activities developed by CoR to enhance its competencies, and the decrease
in member states’ control. The analysis was preceded by an analysis of primary
law, which showed that MS addressed solutions for CoR to be involved as much as
possible in the preparation of new legislative proposals, without having to review its
status. On one hand they want to use the CoR‘s activity, and on the other hand, they
are still not willing to accept the fact that CoR could be promoted among the decisionmaking
bodies and its opinion would be obligatory. Thus, strengthening of CoR competencies
is led by a compromise.
The shift of formal powers can be seen in Figure 3. Firstly, there has been a constant
increase in CoR’s competencies. While the increase of competencies was lowest in
the Treaty of Nice, which didn’t bring any changes for CoR, the highest growth rate
occurred with the Treaty of Amsterdam. Secondly, the graph shows an interesting
fact that there has never been any removal of CoR’s acquired powers, so the trend of
development of competencies based on the primary rights has always been upward.
Figure 3: The development of CoR’s competencies through primary law revisions
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Analysis of all the factors is summarized in Figure 4, which shows an upward
trend for the first four factors and a declining trend for the last factor. Thus there is a
confirmation of the established hypothesis.
The first factor was the CoR’s activity in the adoption of primary law revisions. The
analysis has shown CoR’s great interest in strengthening its position. On the contrary,
the CoR does not only persist in its activity. Over time, the CoR increased its pressure
on MS, which is demonstrated by the continuous increase of its requirements.
A clear upward trend was shown for the first factor. The second factor accounted for
CoR’s activities. As shown in Figure 4, this trend is also increasing, which shows that
the CoR seeks to create a customized presentation that will be sustainable in the long
term. Another factor, cooperation between CoR and interest groups and its activity
in the networks was analyzed. Moreover, cooperation with associations and interregional
networks also falls under this category. The development trends are also
increasing. Finally, the CoR developed activities linking EU regions with regions outside
the membership area. The trend of cooperation captured in Figure 4 is interesting
and growing, but because of the late start of partnerships, it is uneven.
The last factor analyzed was control of MS. The states maintain supervision of
the CoR by freezing its status as an advisory role, while the CoR has been trying to
modify this since the IGC in Nice. MS retreated from strict control of the CoR through
oversight of its budget and the rules of procedure and also admitted some additional
rights. This trend of capturing control powers is slightly downward, but the MS reduce
control of the CoR only in those areas where it suits them.
Figure 4: Development trends of the CoR
Other than confirming our hypothesis, the present analysis raised several questions,
limitations and directions for further research. First, using an abstract model
means accepting a certain bias as models work with precisely defined systems and
133
when assigned specific roles, but they are unable to adequately reflect a more dynamic
reality. The second limitation was the selection of factors analyzed based on a
certain amount of expertise and data available from primary and secondary sources.
Evidently there are also other factors that were not included in the research, even
though they could influence the CoR – external circumstances can be an example.
Further research could therefore be aimed at identifying these factors and the way
in which they affect CoR’s position in the EU. Based on it, various scenarios for future
development of this authority can be re-analyzed and interesting comparisons of
present results and further research could be made.
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