The right of withdrawal in the treaty of Lisbon: a game theoretic reflection on different decision processes in the EU

The ways of decision-making within the EU have significantly changed in the last decades: The rule of unanimity has been more and more substituted by majority voting in order to speed up decision-making processes in a Union of 27 heterogeneous member states. A third possibility is now offered by the Lisbon Treaty including a constitutional right of withdrawal. A member state encountering a loss in its benefits caused by a decision made by majority voting may now demand compensating transfers by using the right of withdrawal. It might threaten to leave the EU if the compensation is denied. Hence, does this mean that member states now have regained a negotiation power comparable to the right to veto? Using a game theoretic approach we investigate the amount of compensating transfers to be offered under majority decisions with exit option compared to decisions requiring unanimity.     

The EU's Role in the Fight Against Racism and Xenophobia: Evaluation and Prospects After Amsterdam and Tampere

The Treaty of Amsterdam has strengthened thepossibility of the European Union (EU) adoptingmeasures in the fight against racism and xenophobia.These can be based both on the extendednon-discrimination clause of Article 13 TEC and newArticle 29 TEU relating to common action in thecontext of the area of freedom security and justice.So far EU action has concentrated on public awarenessmeasures, increasing the exchange and the analysis ofinformation on racism and xenophobia, and improvingjudicial cooperation and cross-border training in thisarea. The scope of EU action continues to be limited,however, because of the absence of a `mainstreamingclause', very limited funding and structural deficitsin the decision-making system. Both the new AmsterdamTreaty provisions and the renewed emphasis placed onthe fight against racism and xenophobia by the TampereEuropean Council of October 1999 should be used forextending the EU's role in this area which is ofcrucial importance to its credibility as a politicalcommunity.     

Is EU enlargement bad for environmental policy? Confronting gloomy expectations with evidence

As the EU expands to include the Central and East European (CEE) countries, its capacity to adopt and implement environmental policy will be negatively affected—this has been a widely held assumption. The CEE countries have been expected to be laggards, slowing down, weakening or even reversing progress in environmental policy-making. More than 2 years have now passed since the enlargement, and the new member-states have begun to make their mark on EU decision-making and implementation. This article confronts gloomy expectations with evidence in three issue-areas: genetically modified organisms, air pollution and climate change. The main conclusions are, first, that there is no indication that enlargement will result in any breakdown of EU environmental policy. Second, the consequences vary across issue-areas. The new member-states have strengthened the group that favours strict regulation of genetically modified organisms, weakened the implementation of the EU emission trading directive and have affected EU air policy hardly at all. These results can give an indication of what is to come. On the other hand, only a short time has passed since enlargement, and the picture may change with regard to other issue-areas.     

EU Merger Control: From Separate Jurisdictional Zones to a More Cooperative Architecture—A Possible Way Forward?

The paper is a call to re-ignite the debate over the future shape of the EU’s concentration or merger control architecture in the longer-term. The paper contributes to this debate by considering the efficacy of replacing the current merger control architecture of separate jurisdictional zones with a more cooperative approach. It demonstrates that the adoption of the cooperative architecture would result in a number of benefits relative to the operation of the current architecture. For in effectively resolving a major problem that has dogged the operational effectiveness of the current architecture since it became law in 1990, the misallocation problem, the proposed architecture would also lead to a strengthening of the application of the principle of subsidiarity in this field, be supportive of the reinterpreted more appropriate authority goal, and resolve the multiple notification issue. Further, by ending the multiple notification issue, the valued one-stop shop approach to merger regulation would be reinforced. Yet the paper recognises that the cooperative architecture itself is not concern free, for the cooperative approach in granting Member state regulators the right for the first time to apply EU merger law, albeit in certain circumstances only, creates the possibility of inconsistent decision-making across this network. This would distort the regulatory level playing field, undermining what the architecture is supposed to guarantee, the Single European Market. With this in mind, necessary safeguards are explained. The paper concludes by briefly commenting upon key systems that need to be in place to ensure the operational effectiveness of the cooperative architecture. Of course, and at the cost of stating the obvious, improving the protection of competition in the field of merger control in the longer-term requires a willingness on the part of the key stakeholders to look beyond the current architecture of separate jurisdictional zones.     

The environment as a strategic priority in the European Union–Brazil partnership: is the EU behaving as a normative power or soft imperialist?

In 2007, Brazil entered the European Union’s (EU) list of strategic partners; a token of recognition of the place Brazil occupies in current global affairs. Although promoting bilateral environmental convergence is a stated priority, cooperation between the EU and Brazil in this policy field is largely under-researched, raising interesting questions as to whether the current state of play could support EU claims for the normative orientation of its external environmental policy. Through an analysis of partnership activities in the fields of deforestation and biofuels, we suggest that while normative intentions may be regarded as a motivating force, critically viewing EU foreign environmental policy through a ‘soft imperialism’ lens could offer a more holistic understanding of the current state of bilateral cooperation. While the normative power thesis can be substantiated with regard to deforestation, we argue that by erecting barriers to shield its domestic biofuels production, the EU is placing trade competitiveness and economic growth above its normative aspirations. Subsequently, the partial adoption of sustainable development as an EU norm leads to policy incoherence and contradictory actions.     

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.     

Spokes in the wheel. European affairs and the parliamentary administration of German Landtage

ABSTRACT

Over the last decades, regional parliaments were considered to play a minor role in European affairs. Not only was the salience of the EU low at the regional level, but politicians elected into these bodies also often lacked vested interests and capacities to become more involved in dealing with complex multi-level questions. After the constitutional strengthening of regional parliaments in EU decision-making, this paper considers one under-researched aspect behind the growing appetite of regional parliaments to become more involved in the scrutiny of EU affairs: the role of unelected parliamentary officials. Based on qualitative interviews in 12 German regional parliaments, the authors highlight how regional parliaments exert control over their governments and what role horizontal administrative networks among parliamentary staff play in the engagement of regional parliaments in EU affairs.     

Law and economics of the European multilingualism

The economics of language applied to multilingualism in the European Union (EU) has only recently come to the fore. Languages economics and Law and Economics disciplines both emerged in the 1960s. However, no study has, hitherto, linked these disciplines. This paper intends to fill that void. Language barriers are the last major remaining barriers for the EU??s ??single?? market. The lack of coordination of multilingualism in the EU stems from a taboo crystallized by a dilemma between economic efficiency and linguistic diversity??i.e., the maximization of wealth versus the maximization of utility. The EU Member States (MSs) do not hasten to coordinate their language policies at the EU level inasmuch as they overestimate the benefits of the current EU multilingualism while drastically underestimating its costs. Coordination shall occur when MSs evaluate the costs and benefits of the current EU multilingualism. This will uncover the aforementioned dilemma, that will only be resolved when both Law and Economics are applied. In pursuing this objective a ??Linguistic Coase Theorem?? adapted from the work of Parisi and the Nobel Prize winner, Ronald Coase is elaborated. Having outlined the basic notions deriving from the EU Law of Languages and the Economics of Languages (Introduction), the paper scrutinizes the costs and benefits incurred by the current non-coordinated EU multilingualism (Part I). Subsequently, a ??Linguistic Coase Theorem?? is elaborated in order to reach a Pareto-optimal outcome, thereby solving the dilemma??both economic efficiency and the linguistic diversity being enhanced (Part II).     

Violence against Women, Trafficking, and Migration in the European Union

Abstract:  This article examines the evolving EU policy against human trafficking, especially trafficking that targets migrant women for sexual exploitation. It maintains that even though action against trafficking is now firmly on the EU agenda, current policies excessively focus on repressive measures and lack attention to the broader setting in which the exploitation of migrants takes place. This means that current EU anti-trafficking policy remains ineffectual, and may in some cases even be counterproductive.     

Automated administrative decision-making under the influence of the GDPR – Early reflections and upcoming challenges

This article examines the intersection of the GDPR and selected due process requirements in the context of automated administrative decision-making. It finds that the safeguards for decisions based solely on automated data processing provided by the GDPR coincide with or serve a comparable function to traditional administrative due process elements such as the duty to give reasons, the duty of care principle, and the right to a hearing. The automation of decision-making by public authorities across the EU will therefore be regulated by an overlap of national administrative procedures and the GDPR. This overlap, however, leads to a paradoxical problem: on the one hand, the GDPR is an inflexible legal instrument aimed at setting out in detail the rights of data subjects and the obligations of data controllers, and it does not offer national legislators much room to align its terms with national administrative procedures. On the other, the GDPR's broad language makes it susceptible to interpretations embedded in the elaborated practices of the national administrations. The unclear relationship between national administrative procedures and the GDPR may undermine its main purpose – to establish an equal level of protection in all EU Member States through its ‘consistent and homogenous application’. After outlining the main challenges in this regard, the article concludes with a call for further research and regulatory frameworks adjustments aimed at developing a better governance regime for automated administrative decision-making that would allow for embracing technological progress while keeping threats to individual rights in check.     

Another type of ‘Other’ in EU Law? AB (2) MVC v Home Office and Rahman v Secretary of State for the Home Office

EU citizenship law has to date paid little attention to the extended family members of Union citizens, a group mentioned just once in Citizenship Directive 2004/38. This note suggests that the current EU legal framework gives too much discretion to the member states, providing scope for the rights of EU migrant workers to be breached with impunity. It also questions whether the new mechanisms for addressing misapplication of EU law are robust enough to hold national authorities to account for their treatment of other family members.     

Constitutionalism and Dissonances: Has Europe Paid Off Its Debt to Functionalism?

Abstract The negative outcomes of the French and Dutch referenda on the Constitutional Treaty have opened a period of profound constitutional disenchantment in relation to the EU. This impression seems confirmed by the recent Presidency Conclusions of the European Council which, although salvaging many important solutions contained in the Constitutional Treaty, explicitly sanction that ‘the constitutional concept . . . is abandoned’. In the light of this context, what role could the constitutional scholarship play? How to make sense of a polity in which the claims of constitutionalism as a form of power are politically unappealing though legally plausible? This article tries to respond to these questions by reaffirming functionalism as a valid analytical and normative perspective in facing the current constitutional reality of European integration. The analytical value associated with functionalism is evidenced by testing against the current context of the EU legal framework the accounts for EU constitutionalism which postulate functional equivalence between the EU and the Member States. The normative potential of functionalism, then, is discussed by arguing that there may be a value worth preserving in a degree of functional discrepancy between the EU and state constitutionalism and, notably, that the transformative and civilising dividend inherent in functionalism could still be exploited, at least in certain areas of EU policy making. Finally, the article suggests that the difficulties in accounting for EU constitutionalism in the light of state‐centred constitutional theory could be regarded as symptoms of European integration marking a moment in the theoretical evolution of constitutionalism.     

Federal democracy,distributive justice and the future of Europe

Discussions pertaining to advancing strategic policies and democracy in the EU cannot afford to disregard a fundamental institutional dilemma of the EU's political system, the conflict between intense interdependence and power sharing in a multilevel polity for one, and autonomy of governments as a condition for democratic legitimacy of power for another. Conceiving the EU as a federal democracy draws attention to this dilemma. This concept suggests democracy-preserving modes of governance instead of coercive coordination (policy adjustment to competition in the common market, joint decision-making among governments, central regulation by law and court decisions), which so far predominate in most relevant policy fields. It also calls for procedures to cope with issues of distributive justice stemming from territorial disparities in resources and burdens. The article conceptualises these challenges and outlines feasible steps to advance federal democracy in the EU.     

The European Union in international environmental negotiations: a legal perspective on the internal decision-making process

From an EU point of view, most international environmental agreements are mixed. This means that both the European Community (EC) and its member states are party to the agreement. As the participation of the EC in international negotiations and agreements is properly arranged by the Treaty establishing the European Community, but the EU member states’ participation is not legally organized on the EU level, the internal decision-making process regarding mixed agreements is rather complicated. Insights into this process are needed to understand the representation and the role of the European Union in international environmental negotiations. This article clarifies the legal framework of the EU decision-making process regarding such negotiations.

The reluctant activist: the Italian parliament and the scrutiny of EU affairs between institutional opportunities and political legacies

ABSTRACT

The article analyses the participation of the Italian Parliament in the scrutiny of EU affairs after the entry into force of the Treaty of Lisbon and its implementation through the national Law 234/2012. The empirical analysis highlights that notwithstanding the presence of favourable institutional and political conditions, the involvement of the Italian Parliament in EU affairs moderately increased. The Treaty of Lisbon and Italian legislation improved Parliament’s rights to participate in the ascending phase but without altering significantly the balance of powers between the European Commission and NPs, and between the Italian Parliament and the Government. Moreover, MPs perceive the EWS and the PD as not impactful on decision-making at the EU and the national level.     

The Decline and Decay of European Refugee Policy

This article challenges the view, implicit in much current researchon EU migration and asylum policy, that supranationalizationis a self-evident antidote to the exclusionary and securitizedmigration policy that has been enacted through inter-governmentalcooperation. It does so by treating supranationalization asan open question in need of empirical scrutiny. To develop thisthesis, it undertakes not only a critique of the current developmentstowards supranational policies, but also of the inter-governmentalpolicy-making system, pursuing a broad brush historical assessmentup to and beyond Amsterdam, with the aim of bringing fresh andfurther insights into the future development of EU asylum policy.It concludes that the current aims are less to do with the establishmentof a common European asylum system and more to do with reducingimmigration pressure and compensating for the perceived lossesof internal security in the wake of full freedom of movementinside the Union. Communitarization will not necessarily occursimply because the European Union is intent upon institutingever stricter immigration controls. Communitarization is doggedby the legacy of intensive trans-governmentalism. In particular,the British, Danish and Irish governments have only been preparedto support communitarization so long as they could have separateprotocols that legitimized their non-participation. The UK andIreland have opted into all proposals on asylum, illegal migrationand civil law but have opted out of practically all proposalsconcerning visas, borders, and legal migration. The securitarianframe still predominates and trans-governmentalism refuses todie. In January 2005, following the agreement on The Hague programme,there was change in decision-making rules from unanimous votingto Qualified Majority Vote (QMV) in the European Council andco-decision with the European Parliament. Yet, there is no guaranteethis will bring about more liberal asylum rules, as is clearfrom the ‘Schengen Borders Code’ which was agreedin June 2005. This is because European migration policy hasalways been fraught with internal contradictions, which haveyet to be resolved. Accordingly, the emergence of a rights-respectingmodel of asylum law based on the Geneva Convention 1951 remainsa distant dream.     

Envisaging the Post-Brexit Landscape: An Articulation of the Likely Changes to the EU–UK Competition Policy Relationship

In the light of the outcome of the 23rd June 2016 UK referendum to leave the European Union and the May government’s consequent approach to Brexit, this paper explores the likely changes that these will bring to a key EU–UK relationship, the competition policy relationship. It is suggested that changes are likely not only in public enforcement and private actions but also in the need for a new competition cooperation architecture between the EU and the UK. In order to appreciate how the competition relationship is likely to change after Brexit, an understanding of the current architecture in respect of the said areas is necessary and thus outlined early in the paper. Thereafter, it is argued that, post the implementation period, as the UK will no longer come under the direct jurisdiction of the European Court of Justice or indeed be a member of the Single European Market, a considerable loosening or separation of the strands that shape the current EU–UK competition relationship will occur. This unwinding of the currently intertwined EU and UK competition regimes will affect both public enforcement and private actions, thereby opening up the possibility of further regulatory divergence, unless consciously checked. Moreover, as the separation will see the Commission’s jurisdictional remit no longer include the UK, the domain will become the sole regulatory concern of UK institutions, particularly the Competition and Markets Authority. This will lead to dual regulatory capture, often of significant and complex antitrust and merger cases, given the overlapping nature of EU and UK markets. Clearly, this necessitates the UK regulator having the appropriate staffing to vet such cases, as it moves from essentially a regional player to one on a par with the Commission and regulators in the USA and China. In fact, the dual capture of such cases reinforces the importance of effective cooperation between the EU and UK regulators. However, given that the current competition cooperation relationship will end at the conclusion of the implementation period, the paper articulates a likely new EU–UK competition cooperation architecture, reflecting the fact that the UK would be outside the EU, but still enabling close, effective cooperation. Of course, and echoing the EU, it is also in the UK’s interest to agree similar competition cooperation bilaterals with key non-EU regulators. Yet, because this will take time, and because cooperation can indeed fail, the UK, like the EU, must ensure its competition instruments have the necessary extra-territorial reach.     

Regulating the invisible: interaction between the EU and Norway in managing nano-risks

Over the last decade, the need for governance of human health and environmental safety risks of nanotechnology (NT) has received increased attention at international, national and EU levels. There were early calls for increased funding of independent research, risk analysis and voluntary or mandatory regulation, but currently overall regulatory efforts have not materialised. One possible explanation is that research has revealed little need to regulate environmental and health safety risks of NT. Alternatively, there is a gap between politics and governance and the evolving state of knowledge. Such a gap can be caused by various factors including change in interests, saliency and organisation. Organisational challenges related to the science–policy interface at national, international and the EU can affect how new knowledge is channelled into decision-making processes. Decrease in public saliency is another possibility. Finally, opposition to regulation among affected producers may have increased and in turn stalled regulation through lobbying. The two explanations are analysed in a multi-level governance context. Norway is chosen as an interesting case: Highly profiled as a frontrunner i.a. in regulating gene technology, but currently awaiting regulations in the EU due to the European Economic Area agreement.     

Evaluating the predictive power of a procedural model for the European Union legislative process

This article analyses the European Union legislative process with the help of formal models of decision-making. The predictions gained from a procedural model are compared with the power of a much simpler model that is informed by the median voter theorem. The finding of the analysis shows that the simpler model out-performs the more complex one. The article proceeds by deriving the hypothesis that the more salient an issue is for EU policy-makers, the higher the probability becomes that the procedural model out-performs the median model. The test results show that this hypothesis can be confirmed.     

Extra Unionem nulla salus? Teaching and researching EU law in Norway and Switzerland

ABSTRACT

Brexit is creating great uncertainty in the UK, including as concerns the future of EU law as an academic discipline. This article tries to shed some light on the issue by describing the situation in two countries whose relations to the EU might provide a blueprint for future UK–EU relations: Norway and Switzerland. After outlining the current state of relations between these states and the EU, the authors describe the (rather flourishing) state of EU law in Swiss and Norwegian academia. The conclusion is that for EU law as a discipline, there is indeed salvation outside the EU. However, a precondition for success is a high level of economic and legal integration.