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This chapter provides the volumes general conceptual framework. It begins by addressing why new approaches to accountability are needed, arguing that accountability literature has reached a stalemate as a result of an impasse between deductive and inductive approaches to accountability in the EU. It then argues that overcoming the stalemate requires developing a generalised framework of what accountability is for, deriving four accountability goods to be used in subsequent chapters. The chapter argues that each of the goods can be delivered in procedural or substantive ways, focusing either on the process by which decisions are made or the substantive worth of decisions themselves. The chapter concludes by discussing the strengths and weaknesses of both varieties of accountability before mapping out how the concepts will be applied across policy fields and institutions in subsequent chapters.
Making sense of the “incomprehensible”: The PSPP Judgment of the German Federal Constitutional Court
(2020)
Judicialization - and the influence of trans-national Courts - seems a perfect object of study for inter-disciplinary research and a potential spur for methodological innovation. In the case of the European Courts, however, this chapter argues that divides between law and political science have impeded the developments of accounts of judicialization able to take both the legal and political aspects of judicial activity seriously. The chapter discusses sociological institutionalism as an alternative approach to judicialisation. By stressing the importance of legal norms in structuring the 'space' for legal agency while abstaining from the assumption that norms apply equally in all situations, sociological institutionalism provides an inter- disciplinary framework for the study of Courts able to act as a bridge between both disciplines. As the chapter will conclude, while institutionalist approaches are complex and time-consuming, their focus on the language, ideas and cultural assumptions of actors and institutions provide a compelling method for the study of judicial behaviour.
This article examines the development of judicialization literature in the EU arguing that – in spite of the obvious advantages of interdisciplinary collaboration – scholarship on judicialization in law and political science is drafting apart in the 21st Century. While early political science research on the European Courts found theoretical inspiration in legal research, law and political science have increasingly diverging epistemological and methodological starting points. As the article argues, using prominent papers, this results in both disciplines producing partial accounts of judicial change with limited external validity. The article concludes by offering routes to improving the inter-disciplinary foundations of judicialization research.
Constitutional Dialogue between Courts and Legislatures in the European Union: Prospects and Limits
(2013)
The concept of 'constitutional dialogue' has become a focal point of US and Canadian public law scholarship. This concept sees judicial review not as a check on majority preferences but instead as part of a deliberation between the legislative and judicial branches over how constitutional commitments and general political objectives can be integrated. This article will explore the prospects and limits of developing the dialogue concept in the context of the present-day European Union (EU). The article will present a two-part argument: While the EU's political and legal diversity make the idea of a 'shared responsibility' for constitutional interpretation between judges and policy-makers normatively attractive, the existing institutional structure of the Union limits the incentives necessary for legal and political actors to constitutionally engage.
While scholarly writing has dealt with the role of law in the process of European integration, so far it has shed little light on the lawyers and communities of lawyers involved in that process. Law has been one of the most thoroughly investigated aspects of the European integration process, and EU law has become a well-established academic discipline, with the emergence more recently of an impressive body of legal and political science literature on 'European law in context'. Yet this field has been dominated by an essentially judicial narrative, focused on the role of the European courts, underestimating in the process the multifaceted roles lawyers and law play in the EU polity, notably the roles they play beyond the litigation arena. This volume seeks to promote a deeper understanding of European law as a social and political phenomenon, presenting a more complete view of the European legal field by looking beyond the courts, and at the same time broadening the scholarly horizon by exploring the ways in which European law is actually made. To do this it describes the roles of the great variety of actors who stand behind legal norms and decisions, bringing together perspectives from various disciplines (law, political science, political sociology and history), to offer a global multi-disciplinary reassessment of the role of 'law' and 'lawyers' in the European integration process. (About the Book)
This book delves into the rationale, components of, and responses to accusations of judicial activism at the European Court of Justice.
Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.
Judicial Activism at the European Court of Justice will appeal to researchers and graduate students as well as to EU and national officials.
(About the Book)
This article analyses the evolving relationship in the EU between “new governance” methods and law, arguing that this relationship can be seen in three distinct “waves” of activity. While the last few years have seen a relative decline in the level of academic and institutional interest in new governance processes, recent developments, such as the renewal of the Lisbon “2020” strategy, and accusations of “judicial activism” laid at the door of the European Courts, suggest a renewed role for new governance mechanisms. The article will argue for a “third wave” of governance research based on interaction between the policy elaborating function of new governance and the procedural role of the European Courts in providing due process and other rights. This emerging third wave — and its limits — suggest an emerging research agenda for EU lawyers and political scientists based not on the opposition, but the complementarity, of new governance and legal institutions.
Transforming into what?: New Governance in the EU and the “Managerial Sensibility” in Modern Law
(2010)
As part of his account of "fragmentation" in international law, Martti Koskenniemi has described the advance of a "managerial sensibility" in modern law. This sensibility incorporates two claims—first, the increasing differentiation of international rules; and second, a tendency to see law not as an end in itself, but as a managerial technique. It is not difficult to apply both tenets of managerialism to the practice of "new governance." On the one hand, methods like the Open Method of Coordination (OMC) attest to a feeling that law is too distanced a register to capture the kinds of detailed intervention that EU regulation requires, leading to differentiation between policy fields. On the other hand, this has been carried out in order to "specialize," allowing overall targets to be reached through narrow administrative elites. Managerialism is present in processes like the OMC both as a differentiation of legal procedures, and as a view of rules as "flexible" in service of the evolving goals and self-image of a particular policy community. While this managerial ethos would seem suitable for a particular vision of the EU polity—the depoliticized regulatory state—it is increasingly problematic. As the principle vehicle for the delivery of the Lisbon strategy, determining the indicators and objectives of the OMC is a far from technical task. What appears and has been marketed as a "micro-politics" of expert based benchmarking has the potential to invoke larger strategic questions for the EU while simultaneously placing them out of public view. In response, new avenues for politicizing new governance or for opening its principle procedures and indicators up to critical evaluation and scrutiny (including to a non-expert public) may be needed. While this is no easy task, this Article will explore two modest proposals—first, the scrutiny role of the European Parliament, and second, the development of the European Ombudsman as an avenue to provide non-judicial means for addressing problems of intransparency and accountability in EU governance. In both cases, while a full politicization of the method may be difficult, a partial strategy may be an important first step in reconciling new governance procedures with the democratic values upon which the Treaties of the EU claim to be based.
The development of the open method of co-ordination from the extraordinary Lisbon European Council in 2000 has been considered by many academic and institutional commentators as a break-through for Social Europe. Yet what kind of breakthrough is it? While many "OMC optimists" have seen its development as providing a new space for social policy outside a restrictive Treaty structure, others have pointed to the integration of the OMC within the Lisbon Strategy as evidencing a new set of economic constraints on the welfare state's development. This paper will argue that there is a deep ambiguity within the OMC's social role; while on the one hand, it can be seen as "colonising" - entering national social institutions ever further into an EU framework dominated by market actors - on the other hand, it can be posited as "reflexive", as encouraging both competing social and economic discourses, and inter-dependent national polities, to reflect upon the objectives of each other.
From initially defining new governance processes as external to “traditional” forms of EU law, a number of academic scholars have begun to argue that methods like the OMC can be seen as indicative of a broader “transformation” of European law-making. The transformation thesis relies on seeing the OM C as an evolving legal mechanism, in which features such as peer review, and the participation of 'new' constitutional actors, can take the place of traditional forms of legal accountability and participation. At the same time, the transformation thesis remains empirically under-developed. Taking the new streamlined OMC process in social inclusion and social protection as its starting point, this paper will seek to remedy that gap. The paper evaluates the transformation thesis using interview data gained from the recent Commission evaluation of the OMC SPSI (conducted from 2005-2006). While the OMC SPSI displays evidence for a number of its features – it also displays some of the limits of the ‘transformation’ idea.
While the OMC as it stands indicates elements of a more ‘dynamic’ form of accountability and
subsidiarity in the EU order, its lack of critic al review and transparency, and failure to include local or regional actors casts doubt on its suit ability as a replacement for traditional legal accountability mechanisms. As much as ‘transformation’ may offer an attractive future for EU law, its dynamic vision for open coordination remains largely unrealised
While much of the debate on judicial activism in the EU has focused on the degree of scrutiny that the European Courts should place on the political autonomy of the Member States, this paper will argue that the judicial activism debate carries deeply political origins. The limited mechanisms of political response on the part of the Union’s institutions to judicial decisions may drive forward controversy over the Court’s political role. In simple terms, the institutional structure of the Union creates a constitutional framework in which the possibility for institutional dialogue between the Court and legislature is inhibited. The essay will develop this argument in 3 steps. The first part (s II) will examine the imbalance in the Union between (legislative) competence and jurisdiction: a long-held observation that may limit the ability of the EU institutions to re-regulate at the EU level fields of policy-making which have been effectively de-stabilised by Court decisions. A second part (s III) will examine how the failure of the Court to properly explain its decisions inhibits the ability of legislatures and Courts to politically engage. Finally (in s IV) the paper will examine the relationship between the EU’s ‘law-politics’ imbalance and another asymmetry of integration – the relation in the Union between social and economic values. In all three cases, the institutional structure established by the EU Treaties themselves may make imbalanced political responses to legal decisions – and hence republican claims of judicial activism on the part of the European judiciary – more likely.
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)
How should decision-making under EU economic governance be understood following the euro-crisis? This article argues, contra existing depictions, that the post-crisis EU has increasingly adopted methods of decision-making in the economic field which marry the decision-making structure of inter-governmentalism with the supervisory and implementation framework of the Community Method. While this ‘post-crisis’ method has arisen for clear reasons – to achieve economic convergence between eurozone states in an environment where previous models of decision-making were unsuitable or unwanted – it also carries important normative implications. Post-crisis governance departs from the mechanisms of legal and political accountability present in previous forms of EU decision-making without substituting new models of accountability in their place. Providing appropriate channels of political and legal control in the EU's ‘new’ economic governance should be seen as a crucial task for the coming decade.
In spite of a continued increase in the substantive scope and reach of EU fundamental rights, little attention has been paid to their practical enforcement. In this book, Mark Dawson looks at the mechanisms through which EU fundamental rights are protected and enforced, closely examining the interrelation between the EU's pertinent legal and political bodies. He argues that in order to understand EU fundamental rights we must also understand the institutional, political and normative constraints that shape the EU's policies. The book examines the performance of different EU institutions in relation to rights and studies two important policy fields - social rights and rule of law protection - in depth.
New Modes of Governance
(2016)
This chapter approaches new modes of governance (NMG) with the task of clarity in mind. Its essential function will be first to map the dominant conceptions of NMG that frame existing institutional and academic discourse. Second function is to analyze the strengths and weaknesses of NMG as an alternative means of delivering European Union (EU) law and policy, and finally to consider the future prospects of NMG in a political context that both challenges and reinforces their institutional relevance. The chapter also explores that the greatest obstacle to the inside view is the resolute failure of many NMG processes to display the features of bottom-up and experimental rule which theorists like Charles Sabel and Jonathan Zeitlin attribute to them. Experimentalism's attractive normative conceptualization of NMG may be of limited use given its failure to describe adequately how new governance processes operate.
How does the European Court Reason? A Review Essay on the Legal Reasoning of the Court of Justice
(2014)
This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case-law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.
The last decade has seen increasing demands for greater accountability in digital governance. What, however, does accountability require and what normative goods does it serve? This article develops a general framework for assessing digital accountability focused on four normative goods: openness, non-arbitrariness, effectiveness and publicness. As the article will evidence, claims for digital accountability often refer to deficits relating to one or more of these goods. While scholarly attention has deservedly focused on tying powerful digital actors to rule of law guarantees, the article argues that accountability offers an important normative yardstick to allow citizens to contest digital decisions beyond strict legality. The framework therefore provides a basis for both conceptually disaggregating and normatively forwarding accountability claims in the digital sphere.
What role does the Court of Justice of the EU (CJEU) and EU law play in elaborating the rights and principles embodied by the Universal Declaration of Human Rights (UDHR)? Over the last 20 years, human (or ‘fundamental’) rights have become a constant part of the way the CJEU interprets and applies EU law. In a period where fundamental rights and values are increasingly under threat both globally and in Europe, judicial institutions remain an important last bastion of protection. Commenting on Judge Rosas’ (2007) observation that the CJEU is not in fact a human rights Court, three critical questions are derived: The first question is the most related to this special issue. What does the development of the CJEU—an institution with human rights responsibilities—mean for general international human rights law? The second takes up Judge Rosas’ observation that the CJEU, unlike the Strasbourg Court, has extensive judicial responsibilities beyond human rights. What does the development of EU human rights law mean for EU law more broadly? Finally, if Judge Rosas is right that the CJEU is not a human rights Court, what does that mean for its relationship to the European Court of Human Rights (ECtHR) and the other organs of the Council of Europe? In answer to this last question, the article cautiously advances the argument that the very fact that the CJEU is not a human rights Court implies a more robust role than Judge Rosas suggests for external review of EU law by international human rights bodies.
This chapter examines the role played by law and legal institutions in systems of multi-level of governance. While the de-centring of state institutions has been a common concern in legal and political science literature in the last three decades, there remains a lack of attention to how literature on multilevel governance can be better coupled with related work in comparative public law. The chapter attempts to fill this gap by sketching four possible conceptualizations of law’s role in multilevel governance systems. Law may either demarcate (by dividing authority), facilitate (by ensuring systems of shared rule), catalyze (by undermining hierarchical systems) or colonize multilevel governance (by shifting power from other spheres in society towards the legal system itself). These conceptualizations are intended to provide a framework on how patterns in the role of law across multilevel governance systems can be analyzed in future work across the social sciences.
This chapter serves as the general introduction to the volume. It discusses two major impasses plaguing EMU in the 2020s: the first, a clash between politicization of EMU decisions, on the one hand, and an institutional structure designed to reject political conflict, on the other; the second, a scholarly impasse between those analysing EMU accountability comparatively and those doing so through EMU specific standards. The chapter briefly introduces the core concepts used in the volume as a means of overcoming this impasse: the distinction between procedural and substantive accountability as well as the normative goods framework developed in Chapter 1. It finally provides an overview of the structure and content of the volume, concluding with a plea to focus scholarly attention on EMUs substantive accountability deficits.
Has the European Semester led to a displacement of Social Europe, or to the development of social policy through fiscal processes and actors? – Potential for Semester to increase soft law’s binding effects or ‘socialise’ EU policy-making – Positive effects severely limited by the Semester’s overall goals: fiscal stabilisation and the creation of increasingly uniform economic policies – Dilemma for Social Europe: how can an autonomous EU social policy be (re) established without risking marginalisation?
The flurry of recent activity in the EU over “Better Regulation” has important constitutional implications, particularly for the Union’s institutional balance. As this article will argue, however, the main question the Better Regulation debate poses is one of how to reconcile the increasing tension in the EU between different paradigms of regulation. Is regulation “better” because it conforms to the preferences of citizens as expressed in national and EU elections, or rather because it meets technical and procedural standards, from consultation to impact assessment, able to improve the “objective” quality of EU legislation? While Better Regulation tries to split the difference between these two avenues for the future of EU regulatory law and politics, each avenue carries the capacity to significantly frustrate the other. Current debates in the EU about regulatory reform defer rather than answer a fundamental question: what makes regulation better?
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.
This editorial critically examines the decision of EU leaders not to follow the ‘Spitzenkandidaten’ procedure when recently nominating the new President of the European Commission. It does so by situating that decision in a consociational model of democracy, that seeks to share political authority rather than link it directly to electoral processes. As the editorial argues, this model leaves the EU exposed to elitist critique and sits uneasily with certain aspects of Article 17(7) TEU. The review and renewal of the Spitzenkandidaten system promised by the incoming Commission President is thus sorely needed.
This article investigates how the European Union’s political process affects the level of rights protection afforded by European Union (EU) law. It does so in two steps, firstly by analysing how institutional politics plays an important role in the evolution of the EU fundamental rights framework and secondly by demonstrating empirically how legislative interaction affects the level of protection provided by three important EU legislative acts. As the article will demonstrate, this interaction tends to result in the overall level of rights protection being increased. Analysing this finding, the article uses institutionalist theory to argue that the EU’s political process carries certain positive effects: the diversity of the legislative process (both within and between institutions) makes the explicit overlooking of rights-based concerns difficult. These findings carry implications for the increasing tendency to channel EU law and policy outside of the ‘ordinary’ legislative process.
The rise in Europe of populist movements has created severe anxiety about the stability of the EU legal order. This article argues that, while populist ideas challenge numerous elements of the EU’s constitutional settlement, there exists no fundamental incompatibility between populism and EU law. By comparing its response to populism with attempts by EU law to stabilise its legal order in the face of political contestation arising from other political cleavages, the article discusses three different ways to understand the interaction between EU law and populism. EU law may seek to ‘survive’ the growth of populism by (i) bracketing or insulating its institutions from populist contestation, (ii) accommodating populist ideas or (iii) confronting the constitutional strategies populists utilise domestically. In examining the constitutional foundations of populism and its relation to emerging doctrines of EU law, the article seeks to build a road map of how populist movements might utilise or resist EU law in their development.
The aim of this chapter is to consider whether accusations of judicial activism towards the European Courts are rooted not in the activity of the CJEU per se but rather a wider ‘imbalance’ between law and politics in the present-day EU. Revisiting an earlier chapter, the chapter considers three sources of such an imbalance: the gap between the jurisdiction of the CJEU and the EU’s legislative competence; judicial reasoning at the EU level; and the imbalance in the EU between market and non-market objectives. While the chapter argues that the EU retains such an imbalance, recent developments, particularly the increasing dynamism of the EU legislature, have significantly narrowed the gap between the EU’s political and legal capacities in the last decade. As the chapter will conclude, the EU carries a less institutionally ‘lonely’ Court than in the past, providing the Union’s judiciary with greater leverage to temper activist claims.
The article examines the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) in the European Union via National Action Plans (NAPs). We argue that some of the shortcomings currently observed in the implementation process could effectively be addressed through the Open Method of Coordination (OMC) – a governance instrument already used by the European Union (EU) in other policy domains. The article sketches out the polycentric global governance approach envisaged by the UNGPs and discusses the institutional and policy background of their implementation in the EU. It provides an assessment of EU member states’ NAPs on business and human rights, as benchmarked against international NAP guidance, before relating experiences with the existing NAP process to the policy background and rationale of the OMC and considering the conditions for employing the OMC in the business and human rights domain. Building on a recent opinion of the EU Fundamental Rights Agency, the article concludes with a concrete proposal for developing an OMC on business and human rights in the EU.
When looking for possible constraints on Differentiated Integration, the fundamental values of the European Union (EU) seem an obvious starting point. Both the Charter of Fundamental Rights and the values articulated in Art. 2 TEU are cross-cutting across EU states. However, while fundamental values have acted as centralising devices in other federal settings, in an EU context marked by extensive value disagreement, they may also act as pathways for differentiation. Insofar as national constitutional orders disagree on the scope of EU rights, attempts to ground EU law in fundamental values trigger inevitable interpretive conflicts across states. This paper will use the examples of asylum and the European Arrest Warrant to demonstrate this argument: while EU law may use fundamental values as a reason to harmonise EU law across states, such values may also be invoked to question the principle of mutual trust underlying the EU legal order, thereby causing rather than limiting differentiation.
This article revisits the balancing act between independence and accountability at the European Central Bank (ECB). It contrasts procedural and substantive concepts of accountability, and challenges the mainstream idea that independence and accountability can be reconciled through narrow mandates, the indiscriminate increase of transparency, the creation of multiple channels of accountability, and the active use of judicial review. These assumptions form the pillars of a procedural type of accountability that promises to resolve the independence/accountability dilemma but fails to do so in practice. The article brings evidence to show how ECB accountability has become a complex administrative exercise that focuses on the procedural steps leading up to monetary and supervisory decisions while simultaneously limiting substantive accountability. The failure to acknowledge the trade‐off between independence and accountability (said to be ‘two sides of the same coin’) has resulted in a tendency to privilege the former over the latter.
This book delves into the rationale, components of, and responses to accusations of judicial activism at the European Court of Justice.
Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.
Judicial Activism at the European Court of Justice will appeal to researchers and graduate students as well as to EU and national officials.
This book delves into the rationale, components of, and responses to accusations of judicial activism at the European Court of Justice. Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.
The Court inhabits a ‘political space’ to which it is called upon to respond. This points to its need to develop cooperative relationships not only with courts but also with political actors (such as national governments and the EU legislature) and even to directly address and explain decisions to EU citizens themselves. This book is aimed at answering the question of ‘How does the CJEU position itself as a political as well as a legal actor?’ with a view to better understanding the work of the Court and addressing its contestation. For that purpose, we explore in this introductory chapter what is meant by judicial ‘activism’ and judicial ‘politics’, before examining the different varieties of judicial politics our authors have shown an interest in. This will pave the way to drawing some lessons on the factors to take into account when seeking to address and respond to contestation of the work of the Court.
This article analyses how the European Union's response to the euro-crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self-determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand-alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long-term stability and legitimacy of the EU project.
This article analyses three prominent proposals for the functional and political transformation of the EU from a constitutional perspective. It argues that existing EU reform proposals, to varying degrees, entrench rather than reverse the challenges to individual and political self-determination brought about by the EU's response to its Euro crisis. As the article will conclude, challenging ‘authoritarian liberalism' in an EU context may require the development of a constitutional structure for the Union able to contest, rather than set in stone, the EU's existing economic and political goals.
EU Law and Governance
(2022)
What is the EU for? In light of the current state of European integration, EU law cannot meaningfully be appreciated without understanding the political, social and cultural context within which it operates. This textbook proposes a fresh, accessible and interdisciplinary take on the subject that is suitable for one-semester and introductory courses wishing to engage the reader with the wider context of the EU project. It situates the institutions, legal order and central policy domains of the EU in their context and offer students the tools to critically analyse and reflect on European integration and its consequences. With pedagogical features such as further reading, class questions and essay/exams questions to support learning, this textbook enables students to form their own informed opinion on whether the EU offers an appropriate answer to the many questions that it is asked.
The European Union's history exhibits numerous episodes in which Member States have sought to re-enforce their national autonomy in the face of deepening integration. Efforts to re-gain autonomy, however, are often accompanied by legitimate concerns that autonomy will lead to dis-integration or will have wider destructive consequences. The EU thus faces a dilemma. Calls for autonomy cannot all be dismissed as mere populist rhetoric or national egoism but instead represent a legitimate questioning of the degree of uniformity that EU law and politics presently carry. At the same time, the fear that greater autonomy may carry dis-integrative effects is also legitimate -uniformity is not an accidental by-product of the EU's construction but intrinsically related to its policy goals. Giving too much room for autonomy might create an opportunity structure for the loss of collective goods, deficits in problem-solving, and perhaps even to self-destruction.
The EU requires autonomy, but in doing so, it must also avoid collapse. Can it achieve it, and if so, how? Autonomy without Collapse is devoted to exploring innovative answers to this question. It draws together scholars in law and political science interested in exploring how to overcome the central dilemma of preserving sustainable yet real autonomy in the future European Union.
This Article introduces our Special Issue by posing a central question: What is the added value of the increasing prominence of the concept of the “essence” of fundamental rights in EU law? It will address this larger question in four steps: First, by examining the function of the concept in EU law and the methods for its derivation; second, by summarizing how its application diverges across EU—and international—law; third, by outlining some enduring difficulties with the essence concept; and finally, by reflecting on its future role in EU law, including its impact on other sites of legal authority—such as domestic fundamental rights, the political institutions of the EU, and international human rights law. As the other articles of this issue demonstrate, while there is not yet a coherent approach to deriving and understanding the essence of rights across the fundamental rights the EU must protects, the essence concept plays an increasingly significant role in demarcating the boundaries between the EU’s legal and political orders and between overlapping sites of legal authority. Recent developments—such as the rule of law “crises”—are likely to further amplify the importance of “essence” to EU law practice and scholarship.
Accountability in the EU's para-regulatory state: The case of the Economic and Monetary Union
(2021)
This article revisits Majone's famous argument about accountability in the regulatory state in reference to the European Union's (EU) Economic and Monetary Union. We show that the EU has entered the stage of a “para-regulatory state” marked by increasing EU regulation in areas linked to core state powers. Despite the redistributive and politicized nature of these policy areas, the EU's “para-regulatory state” has continued to rely on its regulatory model of accountability, focused on decisionmaking processes, and interest mediation. In line with Majone, we describe the model as procedural and contrast it to substantive accountability – which is necessary when regulation has clear redistributive implications. Using two case studies from fiscal policy and monetary affairs, we illustrate the predominance of procedural accountability as exercised by the European Parliament and EU Courts. We complement the empirical analysis with a normative discussion of how substantive accountability could potentially be rendered in both fields.
his article introduces a new normative framework for analysing accountability in the European Union’s Economic and Monetary Union (EMU). The framework is anchored in four normative ‘goods’ that accountability is supposed to ensure: openness, non-arbitrariness, effectiveness, and publicness. All of these can be achieved in a procedural or substantive way, depending on whether actors are held accountable for the quality of their decision-making processes or for the actual merit of their decisions. Transposed to EMU, this conceptualisation shows both the payoffs and trade-offs of prioritising procedural accountability. Using different examples across EMU governance, the article illustrates how current mechanisms of political, legal, and administrative accountability predominantly evaluate the procedures followed by EU institutions when performing their tasks. While such an approach can bring clarity, predictability, and autonomy for the actors involved, it distracts attention from the substantive assessment of EMU decisions. The article contributes to the EMU accountability literature by going beyond principal-agent expectations of democratic control rooted in the nation-state or legal debates about principles for accountable behaviour found in EU Treaties. The EMU, and the EU more broadly, need a different perspective on accountability focused on generally-applicable standards for holding power to account.
The failure of individual and institutional remedies to ensure the effective enforcement of European Union (EU) law has increasingly focused attention on collective routes to ensuring adherance to EU policies and rights. How comprehensive, however, should collective remedies under EU law be? This introductory article - as well as the other articles of this volume - explores the feasibility of a horizontal approach to the collective enforcement of EU law. While the hope for such an approach has been bolstered by the engagement of the EU institutions, the Commission's most recent 2013 Recommendation fails to significantly advance the development of collective remedies at EU level. The article will conclude by exploring some further, non-legislative, alternatives to furthering the collective enforcement of EU law.
With contributions from scholars in a range of different disciplines, this book reflects upon the achievements and failures to date of integration efforts aimed at Europe's Romani populations. The snapshots provided examine a variety of integration efforts at different levels and involving a range of institutional actors. In doing so, they offer a comprehensive introduction to aspects of human rights and integration within the European Union as well as crucial insights as to the current state of affairs in Europe as policy makers reflect on the current direction of initiatives to combat Romani exclusion.(About the Book)
In the summer of 2010, French authorities organized the systematic dismantling of illegal Roma settlements. This resulted in the departure of a large number of Roma-EU citizens from France, as well as a significant dispute between France and the European Commission. While the dispute raises a number of issues of substantive EU law, it also illustrates some important strengths and weaknesses in the system of fundamental rights protection in EU law. This article takes these events as a test case to illustrate that tackling complex problems of human rights protection in the EU requires a hybrid approach in which individual and institutional enforcement mechanisms are complemented by a third level of collective vigilance. While ever since Van Gend & Loos the EU has built a comprehensive system of individual and institutional remedies for the enforcement of EU law, social and political factors may limit their usefulness for vulnerable minorities. The vigilance of collective actors such as networks, NGOs, trade unions and agencies may offer a useful additional layer of protection where they are well-integrated within the classic system of remedies for fundamental rights protection in the EU.
The last 10 years of EU integration has seen a “rights revolution”, at least in so far as fundamental rights are increasingly the register through which legal conflicts in the EU are articulated. But how are EU fundamental rights enforced in a legal order where enforcement relies upon the navigation of multiple institutions and levels of law? This article will seek to clarify this question, using the example of equality law to explore the various remedies available under EU law to enforce EU fundamental rights, and analysing their various strengths and weaknesses. The article will argue that while EU law has considerably enhanced the possibilities for individuals and groups to challenge breaches of fundamental rights to equality, the system of remedies provided by EU law has serious weaknesses. First, the autonomy provided by EU law for domestic orders to develop their own remedies and rules of access creates significant discrepancies in enforcing fundamental rights across the Member States. Secondly, the enforcement of EU equality law remains primarily based on individual litigation both leaving “gaps” in protection for vulnerable groups and making it difficult to address “systemic” problems of discrimination. The EU’s “rights revolution” both provides legal and political opportunities for social actors while also challenging the EU’s existing system of judicial remedies.
Over the past few decades, European countries have witnessed a proliferation of legal norms concerning marginalised individuals and minorities who increasingly invoke them in front of courts to assert their rights and claim protection. The present volume explores the relationship between law, rights and social mobilisation in Europe. It specifically enquires into the extent and ways in which legal processes and entitlements are mobilised by less privileged social actors to advance their rights claims and pursue social change. Most distinctly, it explores such processes in the context of the multi-level European system, characterised by the existence of multiple legal and judicial arenas at the national, subnational and supranational/transnational level. In such a complex system of law and governance in Europe, concepts like legal opportunity structures, as well as the factors shaping them need to be reconceptualised. How does the multi-level European context distinctly shape the nature and salience of rights, as well as their mobilisation by individuals and minority actors?
This book delves into the rationale, components of, and responses to accusations of judicial activism at the European Court of Justice.
Detailed chapters from academics, practitioners and stakeholders bring diverse perspectives on a range of factors – from access rules to institutional design and to substantive functions – influencing the European Court’s political role. Each of the contributing authors invites the reader to approach the debate on the role of the Court in terms of a constantly evolving set of interactions between the EU judiciary, the European and national political spheres, as well as a multitude of other actors vested in competing legitimacy claims. The book questions the political role of the Court as much as it stresses the opportunities – and corresponding responsibilities – that the Court’s case law offers to independent observers, political institutions and civil society organisations.
Judicial Activism at the European Court of Justice will appeal to researchers and graduate students as well as to EU and national officials.
(About the Book)
The ‘asymmetry thesis’, articulated by Fritz Scharpf, holds that EU governance is characterised by an asymmetry between positive and negative integration. The EU has well-developed capacities for negative integration but only limited capacities for positive integration. The present paper challenges the orthodoxy that this thesis has become in EU law and political science scholarship. It argues that the asymmetry thesis no longer accurately depicts European integration, revisiting its key legal and institutional assumptions. Taking the internal market as the most likely case to test the thesis, we show that negative integration has become weaker, positive integration has gained in strength, and both developments have had an impact on the substance of EU law and policymaking, which is promoting non-economic concerns and market-correcting policies to a greater extent than it used to. These shifts, so we contend, could be even more pronounced in other areas of European integration.