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The increasing use in the EU of soft law norms has created an extensive debate over the centrality of law as the principle instrument of European integration. Under a certain understanding of legality – one that sees the function of law as the provision of stable normative expectations - the development of methods like the OMC appears as an explicit threat. By another, the complex nature of the EU polity - and the functional tasks it must carry-out - places an impossibly high burden on any attempt by the EU to model its conception of legality this way. While this seemingly leaves the EU with a stark choice, the very features – the dispersion of normative authority between different national orders, and the need for rapid and iterative regulatory interventions– that have borne soft law also point towards the development of new conceptions of legality and its limits in a post-national setting. Soft law has both empirically challenged law’s place in the integration project, and demanded a re-evaluation of its contemporary meaning.
From initially defining new governance processes as external, or opposed to, 'traditional' forms of EU law, a number of academic scholars have begun to argue that processes like the OMC can be seen as indicative of a broader 'transformation' of European law-making. The transformation thesis relies on seeing the OMC as an evolving legal mechanism; one where features such as cognitive openness, peer review, and the participation of new constitutional actors, can either work in tandem with, or begin to take the place of, traditional Community rules. Applying this transformative view to the practice of a particular OMC process (the OMC SPSI), this paper will argue that while 'transformation' may yet stand as an important guiding ideal for the development of European law in many policy fields, its dominant features remain significantly under-developed. The OMC - rather than create a more participatory and accountable form of law-making - illustrates some of 'transformation's' foundational inner tensions.
(Abstract from: http://ssrn.com/abstract=1350350)
The ‘political Commission’ may be the defining idea of the Juncker Presidency. But did it work? This paper is devoted to analysing how the notion of a political Commission has framed the organization and policy-making of the Juncker Commission. The idea of the political Commission was to allow the Commission to streamline its agenda and focus on a narrower number of proposals. In the words of the 2018 State of the Union address: to be ‘bigger on the big things and smaller on the small things’. In reality, external constraints, and in particular the divergent preferences and electoral cycles of national governments, have frustrated this promise. The Commission’s confinement to a relatively narrow set of regulatory (rather than distributive) tools limits its ability to be politically responsive to the main challenges the Union currently faces. At the same time, the political Commission undermines some elements of the Commission’s regulatory legitimacy – for example, its promise to be a neutral arbiter in the enforcement of competition, internal market and rule of law norms. While the political Commission continues to be a normatively attractive idea, it has fitted poorly with the institutional and political constraints surrounding the Juncker Presidency. This carries implications for the next Commission and
the fate of the Spitzenkandidaten process.