Showing papers in "European Law Journal in 1998"

Europe’s ‘Democratic Deficit’: The Question of Standards

Abstract: Arguments about Europe’s democratic deficit are really arguments about the nature and ultimate goals of the integration process. Those who assume that economic integration must lead to political integration tend to apply to European institutions standards of legitimacy derived from the theory and practice of parliamentary democracies. We argue that such standards are largely irrelevant at present. As long as the majority of voters and their elected representatives oppose the idea of a European federation, while supporting far-reaching economic integration, we cannot expect parliamentary democracy to flourish in the Union. Economic integration without political integration is possible only if politics and economics are kept as separate as possible. The depoliticisation of European policy-making is the price we pay in order to preserve national sovereignty largely intact. These being the preferences of the voters, we conclude that Europe’s ‘democratic deficit’ is democratically justified. The expression ‘democratic deficit,’ however, is also used to refer to the legitimacy problems of non-majoritarian institutions, and this second meaning is much more relevant to a system of limited competences such as the EC. Now the key issues for democratic theory are about the tasks which may be legitimately delegated to institutions insulated from the political process, and how to design such institutions so as to make independence and accountability complementary and mutually supporting, rather than antithetical. If one accepts the ‘regulatory model’ of the EC, then, as long as the tasks delegated to the European level are precisely and narrowly defined, non-majoritarian standards of legitimacy should be sufficient to justify the delegation of the necessary powers.

Europe: The Case for Statehood

Abstract: construction of fortress Europe . . . [could be transformed] into a concrete new ethnic Europe’: cf, ‘National Identities and Citizenship in the European Union’ (1995) 1 European Public Law 633, at 659. 47 J. Ortega y Gasset, Revista de Occidente, 7th ed., (Alianza Editorial, 1996), at 41. 48 For the ‘bleak record’ of the Community institutions in dealing with would-be migrants and refugees even after the establishment of the ‘Third Pillar’ in the Maastricht Treaty, cf, Newman, op cit n 9, at 163

The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy

Abstract: The paper reviews key aspects of the new constitutional framework for the European Union, once the Treaty of Amsterdam has been ratified, in the light of the core challenges of managing flexible integration in an enlarged Union and securing adequate legitimacy for the integration project. Reviewing briefly the general debates on flexibility, and its relationship to different constitutional and political futures for the Union which are suggested by those involved in the debates, the paper examines the principal provisions governing what is termed ‘closer cooperation’ within the new Union treaties. The emphasis is placed on the framework provisions of the TEU, and those in the First Pillar. It is noticeable that the Treaty takes a ‘non‐ideological’ approach to flexibility, eschewing direct support for those who interpret flexibility as meaning more or less integration in the future. It provides a framework for future cooperation which is likely to be too restrictive to be workable, except in very limited circumstances. However, particular instances of flexibility are provided in the Treaty, in the form of the opt‐outs from the new free movement title and the communitarisation of Schengen for the United Kingdom, Ireland and Denmark, and some might even describe these as ‘pick‐and‐choose’. The paper concludes by reviewing the flexibility debate against the background of the ongoing legitimacy challenge for the Union, arguing that, as currently conceived, flexibility is more to do with balancing political interests than with securing or enhancing legitimacy.

The Embedded Acquis Communautaire: Transmission Belt and Prism of New Governance

Abstract: The European Union offers crucial insights into the gradual shift from a Weberian form of modern ‘government’ towards the institutionalisation of post‐Weberian ‘governance’. The article argues that the emerging ‘polity of polities’ context, not only threatens the constitutional basis of democratic rule but also raises the questions of what exactly the new institutions of governance beyond the nation‐state are, and what they imply for the functioning (rules of the game) and legitimacy (democratic processes) of the political order. In an effort to elaborate on these questions, the article develops two themes. First, it raises critical questions about the conceptual boundedness of ‘governance’ in the discussion of constitutional and policy studies within the field of European integration. Secondly, it advances a methodological access point for the study of the institutionalisation of governance in the Euro‐polity. It suggests situating the legal concept of acquis communautaire at the boundary of legal studies and politics. The concept is then applied to a case study of citizenship policy in the EU to demonstrate how the acquis communautaire–more precisely, the ‘embedded acquis communautaire’–facilitates methodological access to the study of the institutionalisation of governance beyond the state and despite states.

Understanding the New Forms of Governance: Mutually Interdependent, Reflexive, Destabilised and Competing Institutions

Abstract: Fundamental changes in the functions of law and politics, new forms of governance, and the bases of the legitimacy of contemporary EU institutions, herald the end of ‘state’ monopolies. The dynamics and relations of supranational and national institutions which we are now witnessing, represent qualitatively new patterns and clusters of communications, interaction and competition. The emerging EU constitutional framework is continually being interpreted and negotiated by numerous participating parties. Functional and mutual interdependence has replaced hierarchy as the primary institutional relationship, thus enhancing further the importance of the treaties and leading to an increased politicisation of law. Sovereignty has dissolved into multiple paths of procedures and combinations of institutions. Science and knowledge‐based discourses have generally invaded regulation, with the result that lawyers need to pay increasing attention to transparency, freedom of information, and the establishment of structures which are relatively autonomous from both state and market. The EU is best conceived of as consisting of mutually interdependent, reflexive, destabilised and competing institutions.

The Regulation of Public Procurement as a Key Element of European Economic Law

Abstract: This article aims to investigate the regulation of public purchasing from an interdisciplinary perspective. It endeavours to provide its audience with the broad framework of the function of public procurement and public purchasing in the common market and the Member States, as well as the legal and socio‐economic parameters which determine this newly regulated field. It also intends to enable its readers to understand and appreciate the impact of the liberalisation of public markets on the whole process of European integration, as it places the regulation of public procurement within the framework of the four freedoms, as well as within the EU’s key policies.

Market Processes, Standardisation, and Tort Law

Abstract: Private standards play a decisive role in tort law and in administrative law. Although they seem to be a perfect tool to achieve the goal of European integration, they tend to substitute democratic legitimacy with uncontrolled private governance. The loss of democratic control is accentuated by the failure of markets to provide sufficient incentives for standardising organisations to behave in a non‐opportunistic manner. The dangers of cartelisation and oligopolistic behaviour are obvious. The approach to overcome these deficits is complex: on the one hand, an institutional governance of private organisations is necessary to incorporate third party interests in the process of enacting private standards; on the other hand, the legal effects of private standards have to be restricted to mere assumptions dependent on the democratic quality of their enacting process. The problem of democratic legitimacy is aggravated by the parallel substitution of state authorities' control by means of private certification organisations which control only the management procedures of firms. As these management systems are difficult to be evaluate, the opportunities for opportunistic behaviour amongst firms and certifiers increases. Moreover, markets themselves fail to discipline certifiers by virtue of a lack of observable factors which might indicate the quality of certification. Tort law, too, cannot fulfil that gap by providing liability for damages caused by undue certifications because tort law suffers from a variety of shortcomings such as missing protection of public goods and difficult assessments of causation linkages. In sum, the author argues for a mixture of market incentives, tort law and administrative law. Each sector must fill in the gaps left by the others.

The European Union and Penal Law

Abstract: Technically‐speaking, penal law remains outside the competence of the European Communities and Union. However, mirroring other legal developments within Europe, a combination of higher Community ‘principles’ such as proportionality, non‐discrimination, free competition and loyal co‐operation, together with secondary Community law, has on the one hand, led to an unforeseen process of the harmonisation of national penal systems; with national norms either being set aside by Community law, or given extended scope in the pursuance of EC/EU goals. On the other hand, certain European interests – most notably, the need to safeguard the European Union budget – have proven strong enough to prompt the evolution of a nascent penal law of the EU; the most noteworthy development here being the drawing up of an independent European ‘corpus juris’ covering penal policy and procedure in the area of EU budget protection.

Beyond the Bundesverfassungsgericht: on the necessary cunning of constitutional reasoning

Abstract: It has frequently been remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Community or Communities of Courts in European Integration? Sex Equality Dialogues Between UK Courts and the ECJ

Abstract: “All of them were filled with the Holy Spirit and began to speak in other tongues as the Spirit enabled them . . . When they heard this sound, a crowd came together in bewilderment, because each one heard them speaking in his own language. Utterly amazed, they asked: ‘Are not all of these men who are speaking Galileans? Then how is it that each of us hears them in his own native language?’ Amazed and perplexed, they asked each other, ‘What does this mean?’” (Acts 2: 4–12)

The European Court of Justice and the Rhetoric of Affirmative Action

Abstract: The recent Marschall decision by the European Court of Justice (ECJ) to uphold a principle giving precedence to women for promotions in the workplace seems promising for the future of affirmative action. At first glance, this decision seems to indicate that the ECJ has taken a different path, moving away from its earlier Kalanke decision which had jeopardised further development of affirmative action in the European Union. On a closer examination, both Kalanke’s sweeping ban of preferential treatment based on gender and Marschall’s new interpretation appear as discursive replies to the same dilemma: should the Court deny the normative objective of equality contained in EC law to generate meaning, thus turning equality into a mere formal principle and rendering judicial review trivial? Or should it embrace a substantive reading of the fundamental principle of equality between men and women, thus substituting the Court judgment for that of the legislature, and subverting the limits of the ECJ’s powers? The aim of this article is to analyse the ECJ’s rhetorical response to the complexities contained in affirmative action judicial review.

Sex equality law after Kalanke and Marschall

Abstract: In Marschall, the ECJ looked for the second time into the admissibility of positive action in German public services; a third reference on this issue is still pending. Despite the Court’s positive response to the ‘women’s quota’ in Marschall, its application in Germany remains controversial. This article tries to shed some light on the specific conditions under which women’s quotas were implemented in Germany and on the different approaches to anti‐discrimination, indirect discrimination law and structural discrimination, which underlie efforts to justify women’s quotas against equality standards derived from EC Law.

Sex Equality in Social Protection: New Institutionalist Perspectives on Allocation of Competence

Abstract: This article examines the development of regulation in the European Union (EU) of sex equality in social protection. It applies research methodologies suggested by ‘new institutionalist’ and ‘historical institutionalist’ perspectives on European integration. It does not aim to replace existing accounts, but simply to add an additional perspective to the analysis. The article suggests that new insights can be gained by observing the impact of the question of ‘division of competence’ on the issue of regulation of sex equality in social protection by the EU. The focus on division of competence illuminates relationships between institutions involved in the process of policy formation and implementation, especially the European Commission and the European Court of Justice. It may also illuminate policy outcomes and the directions in which the EU‘s sex equality law (and possibly social law more generally) has developed and may develop in the future.