Pathologies of Deliberation in the EU

The article explores the ‘dark side’ of deliberation with regard to the EU. In contrast to the dominant apologetics of deliberation, it argues that even though deliberation might have benevolent effects on decision making in the EU, the convention method cannot be viewed as a democratic alternative to the intergovernmental conferences. This is due to the pathologies of deliberation that can only be corrected by applying additional mechanisms. The article explores the pathologies of deliberation by referring to recent experience with the convention method applied within the Convention on the Charter of Fundamental Rights (1999/2000) and the Convention on the Future of the European Union (2002/2003). It discusses two types of deliberative pathologies including the false will‐formation and the rational hijacking of deliberation which question the validity of democratic claims made by deliberation theory.     

Governing Climate Change: Towards a New Paradigm for Risk Regulation

This article argues that the ascent of climate change on the EU regulatory agenda signals a new era of risk regulation and calls for the establishment of a new paradigm for risk regulation. Climate change is altering the EU's conception of environmental risks and its design of regulatory responses. In contrast to conventional risk regulation, climate change regulation must prioritise the risks of business‐as‐usual over the risks of change, must target systemic change instead of stability, and must favour the virtues of integration and orchestration over those of individualisation and compartmentalisation. There is an important role for risk regulation scholarship to analyse this shift and its consequences for regulation, such as the relocation of legitimacy needs and the emergence of new risks of regulatory failure. Such an enterprise would both reinvigorate risk regulation scholarship and offer a vital contribution to the European Union as it tackles the momentous challenge of climate change governance.     

Applying Precaution in EU Authorisation of Genetically Modified Products—Challenges and Suggestions for Reform

In this article, I endeavour to examine concrete challenges that arise with regard to implementation of the precautionary principle in the field of European Union regulation of genetically modified organisms (GMOs). Developed by the European courts into a general legal principle, precaution requires EU regulators to strike a balance between scientific and political legitimacy when taking decisions on risk‐entailing products. Following this understanding, the current GMO legislation creates precautionary governance structures that allow for a broad input into the authorisation process, not only of scientific, but also of ‘other legitimate factors’. At the same time, it can be criticised for narrowly defining precaution as a decision rule, which, if applied correctly, will lead the decision maker to the ‘right’ decision. I argue that this misconception is one of the reasons why, in the current authorisation practice, the EU institutions fail to apply the principle in a balanced way, falling into the extremes of either purely science‐based decision making or a highly politicised precautionary rhetoric. I suggest that in order not to be paralysing, precaution should be understood as a procedural principle that provides for precautionary governance, thus enabling regulators to make appropriate risk choices.     

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

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 Legitimacy of New Risk Governance—A Critical View in Light of the EU's Approach to Nanotechnologies in Food

The objective of this article is to draw attention to legitimacy concerns raised by tendencies in EU risk regulation to supplement legislation with alternative regulatory options that are commonly captured under the umbrella term of ‘new governance’. To this end, the risk regulation of nanotechnologies in food serves as an empirical test case. The rise of nanotechnologies affects various societal actors and constitutes a highly controversial development due to the persistence of scientific uncertainties. To reach a compromise in the legislative process is, given the contradicting knowledge claims, a contentious and time‐consuming undertaking. This article, hence, shows that controversial decisions are not necessarily taken through the legislature—the European Parliament and the Council—but are settled, outside the political arena, in guidance documents or via non‐legislative acts. This article argues, relying on an understanding of legitimacy borrowed from Habermas and Scharpf, that despite ‘new governance’ ambitions in this direction the legitimacy of these measures is at best controversial.     

The Social Partners and the Governance Agenda

Since Maastricht, the EC Treaty and the Community institutions have envisaged a substantial role for the social partners in law and policy making in the EU and at national and subnational level, with a view to helping legitimise and democratise governance in the social policy field. This paper begins by examining the evolving role of the social partners. It then considers why such emphasis has been placed on including the social partners in the governance of the EU and the weaknesses and paradoxes underlying the traditional justifications for their involvement. It then argues that such a negative conclusion may be inevitable when judged against standards developed in the context of the nation state. It concludes by considering whether, in the special circumstances of the European Union, a different approach to assessing legitimacy should be used, based on a more procedural version of democracy, which emphasises participation and deliberation.     

National Parliaments and EU Fiscal Integration

This article analyses the impact of the euro crisis on national parliaments and examines their response to the deepening of EU fiscal integration and the correspondent limitation of their budgetary autonomy. It argues that the sovereign debt crisis has provoked the emergence of new channels of parliamentary involvement in EU economic governance. National parliaments have acquired various rights of approval in the European Semester, strengthened the accountability of national governments, reinforced their scrutiny over budgeting, improved their access to information, and created domestic and supranational avenues for deliberation and political contestation of European integration. In these respects, they have undergone further Europeanisation. While these reforms do not outweigh the centralisation of EU powers, they represent an embryonic step in the parliamentary adaptation to the nascent EU fiscal regime. Yet they are unlikely substantially to influence EMU policy‐making processes, because of the democratic disconnect inherent in the EU's multilevel constitution.     

Practical Reasoning,Impartiality and the European Patent Office: The Legal Regulation of Biotechnology

The article argues in favour of a different conceptualisation of the role of the European Patent Office, and of the mode of reasoning that the EPO ought to deploy, so as to decide cases concerning the patentability of gene related inventions such as diagnostic tests, and questions regarding the regulation of therapeutic cloning. Richardson's model of specifying norms offers an important alternative to the models based on cost‐benefit analysis and neutral application of the appropriate norm by administrative agencies. Specificationism stresses the importance of revising the ends of policy, coming up with a new norm, the product of creative synthesis of the content of conflicting norms. The article adds to this model the idea that the revision of ends requires a strong deliberative democracy, based on the notion of the practically wise regulator, who can apply principles correctly, as these cannot be usefully applied in difficult situations by people who lack experience, insight, and character. Given the current discussion to establish a unitary EU patent, the thesis advanced here is that the patent system in Europe ought to endorse elements of deliberative democracy, enhancing the importance of civil society in the European decision making processes.     

Contract Governance in the EU: Conceptualising the Relationship between Investor Protection Regulation and Private Law

The instrumental use of private law, in particular contract law, by the EU raises a complex issue concerning the relationship between contract‐related regulation and traditional private law and underlines the need for conceptualising the interplay between the two from the contract governance perspective. The present article aims to apply this new analytical approach in the investment services field where there is considerable tension between the EU investor protection regulation embodied in the Markets in Financial Instruments Directive (MiFID I and MiFID II) and national private laws. The article explores various models of relationship between investor protection regulation and traditional private law within a multi‐level EU legal order, considering the strengths and weaknesses of each field in pursuing public and private interests involved in financial contracting. This analysis also offers some lessons for the broader narrative of how European integration in regulated areas dominated by public supervision and enforcement could proceed.     

The Governance of the European Union: The Potential for Multi-Level Control

In its White Paper on the Governance of the European Union the European Commission has adopted a narrow concept of governance which focuses almost exclusively on public institutions exercising legislative and executive power (in other words institutions of government ). The article suggests that a theory of multi-level control in the EU would attend to greater variety both in the available governance institutions and the techniques of control. The deployment of an analysis grounded in theories of control suggests that the European Commission is substantially holding to a long-held preference for instruments of government premised on the exercise of hierarchical power. This reform path sits uneasily with revived concerns to render the governance of the EU more democratic. Equally it inhibits the generation of more efficient governance arrangements which place greater dependence on communities, competition, and design as alternative bases of control to hierarchy. Control theory suggests that the assertion of different reform agendas and institutional structures by other actors can check the more wayward (and arguably illegitimate) tendencies within the Commission plan, whilst drawing in alternative bases of control which, when combined, may yield technically superior governance solutions.     

Revolution Blues: The Reconstruction of Health and Safety Law as ‘Common‐sense’ Regulation

This article reviews the last five years of coalition government policy making in relation to occupational health and safety law. It shows that the most significant and influential element of this activity has been the reframing of the wider regulatory system according to a dominant ideological paradigm of ‘common‐sense’ regulation, to the detriment of other considerations and interests. A social constructionist framework assists in setting out the means through which this new ‘symbolic universe’ of regulatory possibility has been constructed and promulgated within the policymaking arena. In particular, it identifies the key role played by processes of deliberative regulatory engagement in the construction and development of this approach, and identifies the inherent vulnerability of ‘thin’ forms of deliberation to this sort of application.     

Learning from Difference: The New Architecture of Experimentalist Governance in the EU

Abstract:  This article argues that current widespread characterisations of EU governance as multi-level and networked overlook the emergent architecture of the EU's public rule making. In this architecture, framework goals (such as full employment, social inclusion, 'good water status', a unified energy grid) and measures for gauging their achievement are established by joint action of the Member States and EU institutions. Lower-level units (such as national ministries or regulatory authorities and the actors with whom they collaborate) are given the freedom to advance these ends as they see fit. But in return for this autonomy, they must report regularly on their performance and participate in a peer review in which their results are compared with those pursuing other means to the same general ends. Finally, the framework goals, performance measures, and decision-making procedures themselves are periodically revised by the actors, including new participants whose views come to be seen as indispensable to full and fair deliberation. Although this architecture cannot be read off from either Treaty provisions or textbook accounts of the formal competences of EU institutions, the article traces its emergence and diffusion across a wide range of policy domains, including telecommunications, energy, drug authorisation, occupational health and safety, employment promotion, social inclusion, pensions, health care, environmental protection, food safety, maritime safety, financial services, competition policy, state aid, anti-discrimination policy and fundamental rights.     

From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

Developing Administrative Principles in the EU: A Foundational Model of Legitimacy?

This paper argues that administrative legitimacy has been neglected as having the potential to provide a foundation for the legitimacy of the EU institutions. The development of the administrative law‐type mechanisms within the EU is almost exclusively focused on the activities of the Member States as the main implementers of Union law. This has left an administrative gap at the level of the EU institutions, with little evidence of determinative horizontal administrative principles to be found in either the Treaties or the case‐law of two European courts. Where the courts have acted, they have adopted a sectoral and highly circumscribed approach to the development of administrative norms. The paper examines whether administrative principles can be harnessed as a mechanism for increasing the EU's legitimacy and, if so, how these principles fit with the institutions' approach to the legitimacy question. Post Lisbon, can evidence be found within the Treaties that the administrative route to legitimacy has not been entirely foreclosed? This paper proposes a model of administrative legitimacy for the EU level of administration that provides a foundation for the interconnected concepts of good governance and political legitimacy.     

Deliberation at the European Convention: The Final Verdict

Abstract:  Negotiations in Amsterdam 1996 and Nice 2000 resulted in deadlocks impossible to break. The failure of these Intergovernmental Conferences gave rise to demands for a new and improved process of treaty reform. The answer offered by the European Council in Laeken was to create a Convention with a mandate to prepare the next reform of the treaties. The broad composition of this Convention raised hopes for a process not exclusively defined by bargaining on behalf of national interests, but rather a more open process where actors would be prepared to listen to each other's arguments. Today, we find two divergent images of deliberation in this body. The first sees the Convention as a deliberative success story; the second argues bargaining dominated the proceedings. However, this far the empirical evidence in support of either claim has been inconclusive. On the basis of interviews with 28 conventioneers, this article ventures a 'final verdict' on the matter, arguing that deliberation was, indeed, a defining characteristic of the proceedings.     

European Economic Governance and Parliamentary Representation. What Place for the European Parliament?

This article aims to analyse the European Parliament's (EP) position in the reform of the European economic governance, in particular after the adoption of the ‘six‐pack,’ the ‘two‐pack’ and the ‘fiscal compact.’ References are made to the involvement of the EP in the decision‐making process that led to the adoption of the new measures as well as to the substantive role assigned to this institution in the new regulatory framework. The article argues that the new provisions, which undermine the budgetary authority of national parliaments while, at the same time, designing a limited role for the EP—though strengthened compared to the previous version of the Stability and Growth Pact—can jeopardise the effectiveness of the landmark principle of ‘no taxation without parliamentary representation’ in the EU.     

Still in Deficit: Rights,Regulation, and Democracy in the EU1

Abstract: Critics of the EU's democratic deficit standardly attribute the problem to either sociocultural reasons, principally the lack of a demos and public sphere, or institutional factors, notably the lack of electoral accountability because of the limited ability of the European Parliament to legislate and control the executive powers of the Commission and the Council of Ministers. Recently two groups of theorists have argued neither deficit need prove problematic. The first group adopts a rights‐based view of democracy and claims that a European consensus on rights, as represented by the Charter of Fundamental European Rights, can offer the basis of citizen allegiance to EU wide democracy, thereby overcoming the demos deficit. The second group adopts a public‐interest view of democracy and argues that so long as delegated authorities enact policies that are ‘for’ the people, then the absence of institutional forms that facilitate democracy ‘by’ the people are likewise unnecessary—indeed, in certain areas they may be positively harmful. This article argues that both views are normatively and empirically flawed. This is because there is no consensus on rights or the public interest apart from the majority view of a demos secured through parliamentary institutions. To the extent that these remain absent at the EU level, a democratic deficit continues to exist.     

Organizational Trust and the Limits of Management‐Based Regulation

This article examines the relationship between management‐based regulation and occupational health and safety through two case studies. The first describes how corporate occupational health and safety systems and standards were interpreted and implemented differently at different mine sites within the same company and examines the particular role of trust between workers and management in explaining variations in occupational health and safety performance. The second explores the difficulties of moving from a highly devolved system of responsibility to a more centralized approach, and the incapacity of externally mandated management‐based regulation to change behavior at site level in the absence of a supportive workplace culture. The article argues that notwithstanding the heavy emphasis currently being placed on both internal (company‐driven) and external (government‐driven) management‐based regulation, a commitment at corporate level does not necessarily percolate down to individual facilities where ritualistic responses or resistant subcultures may thwart effective change. The findings have important implications for the effectiveness of management‐based regulation and meta‐regulation more broadly.     

浅析新媒体视阈下社会治理科学化的内涵

在新媒体时代,社会治理科学化已成为社会管理领域理论与实践面临的重大课题.本文就新媒体的内涵、新媒体视阈下社会治理面临的全新挑战、新媒体视阈下社会治理科学化的内涵进行了分析、探讨,以探索新媒体视阈下社会治理科学化的路径.