Delegation of Regulatory Powers in a Mixed Polity

It is a common place of academic and political discourse that the EC/EU, being neither a parliamentary democracy nor a separation‐of‐powers system, must be a sui generis polity. Tocqueville reminds us that the pool of original and historically tested constitutional models is fairly limited. But however limited, it contains more than the two systems of rule found among today's democratic nation states. During the three centuries preceding the rise of monarchical absolutism in Europe, the prevalent constitutional arrangement was ‘mixed government’—a system characterised by the presence in the legislature of the territorial rulers and of the ‘estates’ representing the main social and political interests in the polity. This paper argues that this model is applicable to the EC, as shown by the isomorphism of the central tenets of the mixed polity and the three basic Community principles: institutional balance, institutional autonomy and loyal cooperation among European institutions and Member States. The model is then applied to gain a better understanding of the delegation problem. As is well known, a crucial normative obstacle to the delegation of regulatory powers to independent European agencies is the principle of institutional balance. By way of contrast, separation‐of‐powers has not prevented the US Congress from delegating extensive rule‐making powers to independent commissions and agencies. Comparison with the philosophy of mixed government explains this difference. The same philosophy suggests the direction of regulatory reform. The growing complexity of EC policy making should be matched by greater functional differentiation, and in particular by the explicit acknowledgement of an autonomous ‘regulatory estate’. At a time when the Commission aspires to become the sole European executive, as in a parliamentary system, it is particularly important to stress the importance of separating the regulatory function from general executive power. The notion of a regulatory estate is meant to emphasise this need.     

WHEN TO USE AND WHEN TO AVOID MEDIATION

This article examines voluntary mediation and provides suggested criteria for attorneys in deciding whether or not to use mediation. The author discusses what mediation has to offer, what it takes to make it work, and important cautions for attorneys in deciding about the use of this process.     

Free Movement of Services and Social Security—Quo Vadis?

Dental treatment (of Aline Kohll) and a pair of spectacles (for Nicolas Decker) recently drew public attention throughout the whole of Europe. It is certainly true that the reactions following the Court of Justice's judgements in both cases were not only to be felt in the profession but in the general public most especially in political circles. Some authors even went as far as to place these judgements on a par with those in the Costa/ENEL and Cassis de Dijon cases. In the meantime these decisions have persistently been upheld by two further judgements (Vanbraekel and Smits/Peerbooms). The essence of the judgements lies in the observation that the Member States must respect an insured person's right to freedom of services despite being entitled to organise their own social security services. The following article is a critical analysis of this approach. The author pleads for a solution to the problems to be found within the ambit of the rules and principles of coordination whose further development he calls for.