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.     

The European Parliament in Treaty Reform: Predefining IGCs through Interinstitutional Agreements

Abstract:  Despite the fact that Interinstitutional Agreements (IIAs) are an established part of the mass of informal and formal rules structuring EU decision-making and interinstitutional relations, there is as yet no common understanding of their role and functions in the institutional and legal system of the EU—neither in political science nor legal studies. Tracking the evolution of the European Parliament's competencies in three areas where IIAs figure prominently—comitology, legislative planning, and the establishment of procedures to hold the Commission accountable—this article seeks to show that the European Parliament strategically uses IIAs as instruments to wrest competencies from the Council and the Commission. Having no formal say in treaty reform, the European Parliament 'creates facts' through informal but politically binding IIAs hoping that, once established, it can achieve a later codification of its new rights at IGCs. Viewed this way, the analysis of the role of IIAs in Treaty Reform could help to explain a still under-researched puzzle in European integration theory, namely the incremental parliamentarisation of the institutional system of the EU over the last two decades.     

Party Control in a Committee-Based Legislature? The Case of the European Parliament

Does a strong committee system reduce the ability of political parties to dominate a parliament? This article seeks to answer this question in the case of the European Parliament (EP). Specifically, the article assesses the extent to which party leaders control their committee members in the EP. On the basis of interviews with Members of the European Parliament, the article analyses: (1) the extent to which EP party group leaders control committee assignment and (2) how much influence they have over the direction of committee activities, specifically through group co-ordinators. The results show that national delegation leaderships are increasingly involved in directing the committee assignment process and that group co-ordinators, in some cases, are able to control committee business in the EP.     

The power of legislative hot air: Informal rules and the enlargement debate in the European parliament

Integration theorists disagree over the extent to which the European Parliament can substantially influence policy‐making processes in the absence of formal agenda‐setting power. This article discusses the impact the European Parliament had on the current enlargement negotiations. Although the legislature does not yet possess the means to alter the stance of the European Council, it has tried to reverse the status quo through the use of its informal bargaining power. We argue based on a principal‐agent framework of analysis that the effectiveness of this strategy is largely a consequence of the ability to speak with one voice. The article evaluates various mechanisms to help the European Parliament build a unified position. It refutes socialisation and specialisation theories, showing that party group pressure towards a unified position overrode national concerns and constituted a necessary precondition in the development of an integrationist attitude. A statistical analysis of the pre‐bargaining positions inside the Foreign Affairs and Security Committee largely confirms the insights from qualitative interviews with participants and observers.     

An Electoral Connection in European Parliament Voting

Concerns about endogeneity often complicate attempts to estimate a causal link between public opinion and the voting records of Members of the European Parliament (MEPs). In this article, I overcome this problem by exploiting a rare natural experiment—the surprising and exogenous revelation of Irish public opinion that resulted from Ireland's ratification of the Nice treaty. I find that the Irish electorate's rejection of Nice caused Ireland's European Parliament delegation to vote in a more conservative manner, while its subsequent ratification caused a partial reversal of this shift. My finding of an electoral connection on the Nice treaty casts doubt on the claim that MEPs are largely unconstrained by voter preferences on European issues, despite claims of a democratic deficit in European institutions.     

Legal protection of biotechnological inventions. The European Parliament's perspective]

In 1996, the European Commission put forward a proposal for a Parliament and Concil Directive on the legal protection of biotechnology inventions. The article looks at vicissitudes which characterised the progress of the proposal in the Council and the European Parliament. The future directive will regulate the patentability of biological material, which is a particularly sensitive issue when the material is of human origin. The article also seeks to set the proposed directive in a wider context by referring to forthcoming international Convention Law on biotechnology and to the legal situation in Spain at present.     

手术同意书的法律性质及效力

目前,医患矛盾呈现愈演愈烈的态势,由于医患关系在现今社会中的重要地位,医患双方的矛盾已严重影响到整个社会的和谐。作为维护医患双方权益的手术同意书,本应是减少摩擦的“润滑剂”,但是实际上并没有发挥它真正的作用,反而引发了医患双方更多的矛盾。我国手术同意书制度存在许多问题,其中之一就是医患双方对其法律性质认识不清。针对手术同意书的法律性质,有合同说、风险承担说、授权委托说及知情同意说等多种学说。本文针对这些学说进行具体分析,并且着重分析了其中的合同说与知情同意说,在此基础上指出了手术同意书的法律效力：一方面表明医疗行为合法,另一方面正确的划分医患双方的责任承担范围。最后在知情同意法律性质的基础上,对现行手术同意书从主体、标准范围、方式和例外情形等角度提出改进建议,希望可以使该制度更趋合理化,促进医患关系的和谐发展。     

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.     

Codifying Temporary Stability? The Role of Interinstitutional Agreements in Budgetary Politics

Abstract:  The article analyses the potential of Interinstitutional Agreements (IIAs) for resolving conflicts in the field of EU budgetary policy. In the 1970s and 1980s, annual budgetary procedures were characterised by intense interinstitutional battles, mainly between the Council and the European Parliament. IIAs concluded during this period tried to clarify pertinent Treaty provisions, but proved to be insufficient to resolve budgetary conflicts stemming from the more general problem of the uneven allocation of budgetary and legislative power between the two institutions involved. It was not before the fundamental budgetary reform in 1988—agreed upon by the European Council and implemented through an IIA along with the gradually increased role in legislative politics granted to European Parliament through several Treaty amendments—that budgetary stability—arrived. Hence, IIAs can be regarded as an improper means to solve profound constitutional problems. Yet, they can be considered as suitable tools to arrange technical details.     

Multiple Principals and Legislative Cohesion

In many systems, legislators find themselves accountable to multiple principals. This article seeks to further answer how legislators decide between their principals and what factors condition legislators to choose one over the other. We argue that electoral uncertainty, operationalized as electoral volatility, pushes legislators towards the principal that has the greatest influence over their re‐election. Using European Parliament electoral results and roll‐call data from the second to the sixth European Parliaments (1984–2009), we show that increases in electoral volatility decreased European group cohesion and pushed legislators to side more with the positions of their national parties over their European group when the two disagreed.     

The judicial review of legislation in the United Kingdom: a public choice analysis

The Human Rights Act 1998 unprecedentedly enabled the senior courts in the United Kingdom to review parliamentary enactments for compatibility with the European Convention on Human Rights. This article seeks to analyze within the framework of public choice economics two phenomena arising from this development that are counterintuitive: What made Parliament voluntarily invite the judiciary to monitor its acts? Why has Parliament consistently complied with rulings of the Judicial House of Lords that challenged primary legislation over the last 10 years? It argues that the Act was designed in a way that fulfilled the electoral commitments of the enacting majority by supplying promised policies to its constituencies, while minimizing agency costs and information problems in favor of Parliament’s corporate interests. Significantly, the Act left intact the veto powers of Parliament and the European Court of Human Rights in Strasbourg. As such, it disincentivized the Judicial House of Lords to risk costly overturns of its rulings by Parliament for straying too far from the range of the ideal policy positions spanned by Parliament and Strasbourg. Drawing from the empirical evidence of the past decade, it will be shown that in nearly all cases the Law Lords have either upheld the compatibility of challenged statutes, reaffirmed parliamentary preferences, or followed the jurisprudence of the Strasbourg Court.     

To have a voice in the matter: A comparative study of the Swedish and Danish European committees

This article deals with the issue of how the national parliaments might be strengthened in order to decrease the democratic deficit within the EU. It examines the parliamentary European committees in the Danish and Swedish Parliaments and concludes that their potential to influence and control their respective governments’ EU policies mainly depends on the Government's parliamentary base and opportunities for legislative influence open to parliamentary oppositions. Moreover, it examines various organisational aspects of the European committees, including distribution of tasks and internal co‐ordination within the Parliament, at what stage in the decision‐making process the European Committee and the Parliament are involved and information management. With some conspicuous exceptions, Denmark and Sweden have chosen the same organisational arrangements for dealing with EU affairs both in the Parliament as a whole and, specifically, in the European committees. The principal conclusion is that the European committees in Sweden and Denmark are effective means for giving the national parliaments a voice in EU matters, but the article also addresses some reforms to strengthen their positions.     

Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration

Abstract: The interdisciplinary discourse on European law seems paradoxical. While the editors of this Journal plead for a contextual jurisprudence, political scientists are discovering the importance of law for the integration process. This article explores the merits and problems of both of these shifts¹. On the one hand, it points to implicit assumptions of legal arguments that need to be contrasted with the insights of political sciences into mechanisms of integration processes and the functioning of inter-governmental bargaining - and is thus to be read as an appeal for a 'contextual' jurisprudence. On the other hand, it argues that political science analyses, even when they take the legal dimension of European integration into account, tend to rely upon an instrumentalist view of the legal system which fails to acknowledge the Law's normative logic and discursive power. This theoretically complex argument is exemplified first by an analysis of the tensions between the legal supranationalism of the European Court of Justice and the German Constitutional Court's defence of national constitutionalism, already intensively discussed in this Journal². What the article adds is an extension of the constitutional debate to the economy. It argues that Europe cannot, and should not, be based upon a dichotomous structure of (national) political rights and (European) economic liberties.     

Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedom and Political Rights

This article takes as its starting-point the relationship between Article 30 of 30 of the EC Treaty (general rule on the free movement of goods) and the European Constitution. On the one hand, it examines Article 30 in the context of the constitutional dilemmas facing the European Union, particularly the balance of powers to be defined between Member States and the Union, between public power and the market, and between the legitimacy of Community law vis à vis that of national law. On the other hand, it reviews different conceptions of the European Economic Constitution by analysing the role of Article 30 in the review of market regulation.     

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.     

Contract Rights and Remedies,and the Divergence between Law and Morality*

Abstract. There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand, are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand, are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law.     

Child-related leave and women’s labour market outcomes: towards a new paradigm in the European Union?

The current European Union (EU) legislative framework on child-related leave is facilitating an imbalance in the take-up of leave by women over men. There is a consolidated EU right to maternity leave for mothers but there is no parallel EU right to paternity leave for fathers. The EU right to parental leave is for both working mothers and fathers, but its design does not encourage an equal take-up by women and men. The aim of this article is to gain insight into the effects of child-related leave on women’s labour market outcomes. On the one hand, it reviews and analyses economic literature which points to the adverse consequences of leave on women’s earnings, and even on women’s labour market participation when the absences from work are very prolonged. On the other hand, it underlines the new direction followed by the European Commission towards greater equality between men and women at home and at work.     

The European Democratic Challenge: The Forging of a Supranational Volonté Générale

This article explores in a systematic manner the different components of the democratic legitimacy of the Union from the standpoint of deliberative democratic theory. Contrary to standard accounts, it is claimed that the democratic deficit must be disaggregated, given that the Union has not only several shortcomings, but also some democratic surpluses. On the one hand, the Union was created to tackle the democratic deficit of nation states, and has been partially successful in mending the mismatch between the scope of application of their legal systems and the geographical reach of the consequences of legal decisions. Moreover, the European legal order is based on a synthetic constitutional law, which reflects the common constitutional traditions of the Member States, which lend democratic legitimacy to the whole European legal order. On the other hand, the lack of a democratically written and ratified constitution is a central part of the democratic challenge of the Union. But equally important is the structural bias in favour of certain material legal results, which stems from the interplay of the division of competences and the plurality of law-making procedures.     

The empty place of European power: Contested democracy and the technocratic threat

In this article, I analyse the European Union (EU) in the light of the Lefortian question: What place does power have in a democracy? Claude Lefort has argued that modern democracy is a regime where the place of power is empty. In this article, I investigate what this entails for the EU. I take the current situation of democracy in the EU as being marked by two developments: the contestation of democracy by citizens on the one hand and the hollowing out of democracy at the EU level on the other. Exemplary for the first development are the popular protest movements known as the indignados. The second feature is exemplified by governance and technocracy. My argument suggests that the critical response of the former to the latter can in fact be read as the claim that what should have been the empty place of power in European democracy has come to be occupied by the establishment of an authoritarian regime of expert rule.