European Parliament and Executive Federalism: Approaching a Parliament in a Semi-Parliamentary Democracy

Abstract: The European Parliament has often been understood along the lines of theories of European integration—compared to regular parliaments by Federalists or belittled as merely an international assembly by intergovernmentalists. This paper proposes an understanding of the European Parliament not along theories about what the EU should become, but what it is and surely will continue to be, that is a very distinct federal structure. The European Parliament is a parliament in an executive federalism—with far‐reaching consequences for its form and functions. After outlining the characteristics of this federal structure, these consequences will be demonstrated by analysing the European Parliament in contrast with two ideal types of parliaments: the working parliament, separated from the executive branch and centred around strong committees (like the US Congress), and the debating parliament, characterised by the fusion of parliamentary majority and government as well as plenary debates (like the British House of Commons). Dwelling thus on a comparison to a legislature in a non‐parliamentary federal system, like the US Congress, this paper argues that the European Parliament might best be understood as a special case of a working parliament. Finally, it will be proposed to consider the influence of executive federalism not only as fundamentally shaping the European Parliament but also as rendering the EU generally a semi‐parliamentary democracy.     

National parliaments and the European Union: part of the problem or part of the solution to the democratic deficit in the European constitutional settlement?

European integration is as much an opportunity as a threat to national parliaments. The view that national parliaments have been the main losers in the process is not substantiated by empirical evidence. National parliaments have adapted their structures and procedures to keep pace with the increasing scope of integration. This process has included strengthening the constitutional powers of parliaments in some of the member states. The recognition in the Nice and Laeken declarations that national parliaments have an important role in enhancing the democratic legitimacy of the Union and the key provisions of the draft protocols on the role of national parliaments and subsidiarity adopted by the Convention on the Future of Europe will ensure that national parliaments have the opportunity and the means, if they so choose, to be closely involved in Union affairs. Constitutional change at the Union level is likely to trigger normative and procedural change in the member states.     

法国宪法委员会功能新论

提起法国宪法委员会,人们都会很自然地将其功能与宪法监督划上等号。但事实上它却是一个有着宪法监督功能,以平衡政府与议会关系为主要职责的特殊政治机构。从宪法委员会官方网站提供的历年裁决来看,其功能可分为两级。通过第五共和国权力机关运作流程,对其功能进行动态分析,发现宪法委员会的主要功能不是宪法监督,而是平衡政府和议会之间的权力。     

MEPs and the building of a ‘parliamentary Europe’

The European Parliament (EP) has become significantly more important in the last ten to 15 years. Little attention has thus far been paid, however, to one crucial element in this story: the consistent support of the majority of EP members (MEPs) for a strategy of parliamentary assertiveness. This note investigates the factors influencing MEPs’ behaviour in a series of key parliamentary divisions, where issues concerning the assertiveness of the parliament were at question. Contrary to much speculation, more experienced MEPs do not appear to become socialised into more hard‐line attitudes. Rather, factors relating to members’ partisan status and nationality are the major determinants of support for enhancing the status of the EP. The findings are argued to suggest important implications for both the EP and the European Union as a whole.     

欧洲一体化进程中人权法律地位的演变

欧洲共同体最初将经济一体化作为首要目标 ,人权不构成其主要活动领域。随着欧洲一体化的进程 ,人权成为共同体对外关系的基石以及其域内关注的事项。通过修改基础条约和制定有关的人权法律 ,欧盟在《欧洲联盟条约》框架下确定了人权的法律地位 ,同时创造了独有的人权类型。     

Laying the foundation for institutionalisation of democratic parliaments in the newly independent states: The case of Ukraine

This article examines the institutionalisation of the Ukrainian Parliament, the Verkhovna Rada, since the fall of the Soviet Union. The emergence of a popularly elected legislature in post‐Soviet Ukraine stands as a cornerstone in the development of a democratic regime. While the Verkhovna Rada is by no means a mature parliament, the foundation for future institutionalisation has been laid through the establishment of a representative political process, nascent political parties, a separation of powers between the executive and the legislature, and the policy‐making capacity of the Parliament.     

The legal constitution: United Kingdom parliament and European court of justice

Membership of the EC has transformed the legal status of the UK parliament. Prior to British accession, Acts of Parliament were the supreme law of the land, unchallengeable in any court. This paper argues that EC membership raised the courts ‐ national as well as European ‐ above parliament and that at the time of accession parliamentarians were almost wholly unaware of this fundamental change. The author links MPs’ ignorance to the highly political, rather than legal, nature of the British constitution and traces the evolution of their constitutional understandings. Identifying a new dynamic interplay between British judiciary and parliament, the study argues that the creeping hegemony of law within constitutional politics merits continuing analysis by legislative scholars.     

An academic perspective on the copyright reform

The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls.We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union.In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself.Our conclusions are:1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.     

The Integration of the European Union and the Changing Cultural Space of Europe: Xenophobia and Webs of Significance

The dialogic relationship between individuals and the cultural space of Europe embodies cultural definitions, political definitions and individual definitions. As individuals draw from Europe as a cultural space and strive to identify and define themselves, definitions are created against an ??other,?? leading to Europe being defined against the ??other.?? Identity is established through difference, and in this, the relationship between the EU??a force of integration??and Europe as a cultural space is strained. As boundaries change through the European Union, transforming the cultural space of Europe, the ??other?? against whom individuals have traditionally defined themselves is also transforming. This article asks if the integration of Europe through the European Union is resulting in the political mobilization of xenophobia and thereby transforming the cultural space of Europe into a xenophobic space. As many academics and professionals have argued that xenophobia in Europe has been on the rise since the 1990s, this paper will question how the relationship between the European Union??as a force of European integration??and Europe??as a cultural space??is contributing to the construction of xenophobia.     

Beyond Technocratic Governance: The Case of Biotechnology

Decision-making processes within the European Union are often held to be technocratic in nature. This article challenges this assumption upon conceptual and empirical grounds. Whilst in the European regulatory field of biotechnology, politicians often seek to define political issues as technical questions and so may successfully evade necessary but time-consuming legislative processes through the means of Comitology; the diverse mixture of national, supranational, technocratic and political interests within the Commission, Council, Parliament and committees, determines that social and ethical criteria do play a role in European regulation. Relating such specific findings to the broader question of European governance, it might thus be argued that the European Union is more than a technocratic regime, and does more than promote negative integration. However, the 'political' within European decision-making needs nonetheless to be strengthened to ensure the necessary and continued inclusion within such regulatory processes of social and ethical rationalities to complement the economic rationality of the internal market.     

The Paradox of Constituent Power.The Ambiguous Self‐Constitution of the European Union

Abstract. The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself.     

The Regulation of Telecommunications in the Czech Republic

Abstract:   Since the fundamental upheaval of the political, social, and economic climate of the Czech Republic in 1989 successive governments have striven hard to develop a functioning market economy in which investors, both domestic and foreign, enjoy sufficient stability and legal certainty in which to thrive. The rapid development of the telecommunications sector was to act as a catalyst for the general improvement of the entire national economy, whilst at the same time helping the country to meet its policy goal of creating the conditions precedent to its successful integration into the European Union. The purpose of this article is to trace the progress of the Czech telecommunications market to date and to assess the regulatory framework adopted by the Czech government in light of its stated policy goals. After giving a brief history of the development of the market and the corresponding development of a regulatory régime this article shall turn to examine the current legal position after the adoption of the recent Law on which came into force on 1 July 2000. As well as suggesting necessary modifications and amendments due to certain flaws or omissions in the Act, modifications arising from the adoption by the EU of its new regulatory framework for communications shall also be suggested.     

In the Wake of 'Good Governance': Impact Assessments and the Politicisation of Statutory Interpretation

For some time 'regulatory reform' has been a government watchword, and the streamlining and improved quality of regulation its professed ambition. Impact assessments (formerly known as regulatory impact assessments) are a significant ingredient in these governmental initiatives, now promoted by the newly created Department for Business, Enterprise and Regulatory Reform. Just as they have come to refer rather freely to the Explanatory Notes that now accompany all public Acts of Parliament, judges have also begun to invoke impact assessments when construing legislation. This paper investigates the extent of this practice and the manner in which judges employ impact assessments. It warns of the potential consequences if the judiciary avails itself too readily of these highly politicised, and sometimes deceptive, documents.
'The aim of good prose words is to mean what they say.'
G. K. Chesterton, Daily News 22 April 1905     

The Cocoon of Power: Democratic Implications of Interinstitutional Agreements

Abstract:  This article assesses Interinstitutional Agreements (IIAs) in terms of democratic theory. It starts from the premise that democratic rules as developed in the national context may be used as a yardstick for supranational governance as well. Thus, parliamentarisation of the Union is defined as an increase in democracy, although relating problems such as weak European party systems, low turnouts, and remoteness are not to be neglected. The article evaluates several case studies on IIAs in this vein and asks whether they strengthen the European Parliament or not, and why. It arrives at conclusions that allow for differentiation: empowerment of the European Parliament occurs in particular when authorisation to conclude an IIA stems from the Treaty or from the power that the European Parliament has in crucial fields such as the budget and is willing to use for this purpose. Success is, however, not guaranteed in every case, and is sometimes more symbolic than real. However, a democratic critique must also stress negative consequences of IIAs in terms of responsivity, accountability, and transparency.     

After Enlargement: Voting Patterns in the Sixth European Parliament

We examined how voting behavior in the European Parliament changed after the European Union added ten new member‐states in 2004. Using roll‐call votes, we compared voting behavior in the first half of the Sixth European Parliament (July 2004‐December 2006) with voting behavior in the previous Parliament (1999–2004). We looked at party cohesion, coalition formation, and the spatial map of voting by members of the European Parliament. We found stable levels of party cohesion and interparty coalitions that formed mainly around the left‐right dimension. Ideological distance between parties was the strongest predictor of coalition preferences. Overall, the enlargement of the European Union in 2004 did not change the way politics works inside the European Parliament. We also looked at the specific case of the controversial Services Directive and found that ideology remained the main predictor of voting behavior, although nationality also played a role.     

Is the Single European Market an Illusion? Obstacles to Reform of EU Takeover Regulation

Abstract Since 1989 the European Commission has attempted to harmonise rules governing EU takeovers as a crucial step towards the integration of Europe's capital markets. The article takes its starting point in the vote in the European Parliament in July 2001, which turned down a proposal for a Takeover Directive. Members of the European Parliament overwhelmingly voted according to national rather than party lines, which is unusual. The article develops an explanation for opposition to the directive, which emphasises differences between national systems of corporate governance. The outcome is asymmetric vulnerability, which means that the likelihood of a company becoming the target of an unwanted takeover bid differs depending on the nature of national incorporation. The article shows how national differences constituted obstacles to real reform within a context of arguments about how to create a level playing field.     

Forward or Back: The Future of European Integration and the Impossibility of the Status Quo

This article considers how the legal and political order of the EU can cope if the ‘Ever Closer Union’ envisaged by the Treaties ceases to be inevitable. In particular, it focuses on what are the likely consequences if previously successful integration mechanisms such as integration through law (including adventurous pro‐integration interpretation by the Court of Justice of the European Union (CJEU)) and functional integration can no longer successfully push forward the integration process. It considers whether it is possible for the Union to ‘stand still’, that is, to maintain the current level of integration without either moving forward to more intensive integration or engaging in costly and disruptive disintegration. In order to substantiate this claim, the article looks at three areas, the law of citizenship, the Eurozone and the legislative structures of the Union, showing in each case that the neither the current degree of integration nor methods used in recent times to move the integration process forward provide a long term basis for policy.     

Open parliament policy applied to the Brazilian Chamber of Deputies

ABSTRACT

This article will analyse the implementation of an open parliament policy that is taking place at the Chamber of Deputies, in accordance with the guidelines of the Open Government Partnership international programme (OGP), regarding the action plan of the Opening Parliament Work Group in particular, one of the subgroups of OGP. The authors will evaluate two blocks of initiatives for open parliaments executed by the Chamber in the last few years, that is, digital participation in the legislative process and Transparency 2.0, in order to observe their impasses and results obtained until now. In the first part the authors will study the e-Democracy portal and in the second part the authors will focus on open data, collaborative activities to use those data (hackathons) and the creation of the Hacker Lab, a permanent space dedicated to open parliament practices. The analysis considers the initiatives that the authors evaluated as part of the transformative and arena profiles of the Brazilian Parliament, according to Polsby's classification, with exclusive characteristics.     

Government Rulemaking as a Brake on Perestroika

The Soviet political system is made up of three major institutions: the Communist Party, the parliament, and the government. Whereas the first two have changed dramatically under perestroika, the government has continued to function in more traditional ways. Most worrying to reformists, the government–the Soviet Union's "executive branch"–has used its broad rulemaking authority to impede the transformation of Soviet politics and society. This essay examines the role of governmental rules in the Soviet political and lead system It concludes, following the lead of Soviet reformists, that without a fundamental restructuring of government making authority, legal, political, and economic reform in the Soviet Union cannot be institutionalized.     

A demented world: Politics without politics,state without state

Johann Huizinga, the great Dutch historian, wrote: ‘We are living in a demented world. And we know it’, pointing to the Schmittian nationalist irrationalism. Nevertheless, this expression might be accommodated to stress a contemporary form of dementia: the dementia of marketing. We are obsessed, made demented, by consumption, and we know it because we go and hunt for it. Classical economics in its neoliberal shift becomes, now, bio‐economics. The institutional venue where this kind of bio‐political commitment has been strongest is that provided by the European Union. The European Union has failed to halt the process of depoliticisation underway in the government of public affairs, contributing, on the contrary, to its encouragement and acceleration. The picture that emerges seems to have thrown us back 100 years, overrunning the defences of the Welfare State against the excesses of the free market and financial capitalism.