The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit

The new institutional framework of subsidiarity is expected to lower the EU democratic deficit. In contrast to this optimistic scenario, I argue that the success of subsidiarity depends on its capacity to unravel the EU's ‘substantive’ democratic deficit. Linked to the Union's functionalist institutional design, this dimension of the democratic deficit has developed due to two limitations of EU‐level politics. First, the EU functionalist design has narrowed the range of topics open to democratic debate (horizontal substantive democratic deficit). Second, the proportion of the debate which we could genuinely describe as being political is declining as a result of the de‐politicisation of EU goals, underpinned by a massive accumulation of allegedly apolitical expert knowledge (vertical substantive democratic deficit). Against this background, I contend that by involving actors relatively alien to the EU functionalist thinking, subsidiarity could offer an opportune ground for the re‐politicisation of democratic ‘blind spots’ in EU policy making.     

The law and economics of supranationalism: the European Union and the subsidiarity principle in collective action perspective

This article, prepared for an issue devoted to the work of Judge Richard A. Posner, considers the implications of law and economics for the structure of supranational organizations, with particular attention to the application of collective action theory to the relationships among states in the EU. After discussing the connections between this approach and Judge Posner’s work, the article describes collective action theory and its implications for our understanding of the state and of relationships among states. From this perspective, supranational organizations such as the EU can be understood as institutional structures that facilitate collective action among states by reducing the transactions and enforcement costs of making and implementing collective decisions. At the same time, the delegation of authority to supranational institutions creates agency costs for states and their peoples because the interests of the state and its people diverge from the interests of the collective in some instances. Viewed in this perspective, the institutional structure of the EU—like that of other supranational organizations or federal nation states—reflects an effort to strike a balance between collective decision making and local control so as to maximize the collective gains and minimize the resulting agency costs. Understood in these terms, various features of the EU’s institutional design make sense. The ordinary legislative process permits the EU to act without the unanimous consent of member states, thus reducing transactions costs in those areas where collective action is necessary, particularly in relation to the creation and regulation of the internal market. The EU reduces enforcement costs through principles of direct applicability or effects and the supremacy of EU law, which are effective legal restraints in states governed by the rule of law. The institutional structure of the EU also incorporates a representative and deliberative process for collective action that helps control the resulting agency costs for member states and their peoples through supermajority and co-decisional requirements. The collective action perspective also illuminates the function of the subsidiarity principle and the enhanced role of national parliaments in its enforcement.     

Deficits in Theory of Mind,empathic understanding and moral reasoning: a comparison between young offenders and non-offenders

Previous research suggests a lack of pro-social skills is characteristic of an antisocial or offending personality. It is therefore reasonable to assume that an inadequate understanding of another's mental state may contribute to antisocial or offending behaviour. Forty-six young-adult male offenders and a control completed measures to assess: Theory of Mind (ToM), empathic understanding (EU) and moral reasoning. Significant differences in the performance of young-adult offenders and the control group were detected in ToM, EU and moral reasoning with young-adult offenders scoring lower than the control group. A positive association was also found between ToM, EU and moral reasoning. These findings contribute to a further understanding of how individuals make sense of, and respond to, the social world around them. The ability to measure ToM, EU and moral reasoning and subsequently identify any specific deficits, as well as recognise the link between these three key skills, is not only useful for researchers but it will also allow practitioners to tailor existing (or develop new) interventions specific to the needs of an individual. This could be particularly useful in terms of recidivism when applied to those involved in antisocial or offending behaviour.     

Mapping Human Rights, Reading the European Union

Abstract: The EU's human rights policy has provoked increasing scholarly attention over the last decade. Yet rarely has it been subjected to rigorous analysis in the context of any integration theory. This article is an attempt to rectify the omission. By building on the approach of historical institutionalism, whilst at the same time recognising its analytical deficiencies, a method of reading the EU and interpreting its human rights policies is promoted. Specifically, the article contends that an analysis based on the textual nature of the EU and the configuration of this text through ‘institutional narrative’ will enable a better understanding of the institutional logic behind the construction of human rights policy. An agenda for research and analysis is thus suggested that might map the development of human rights in the EU and predict the compass of future policy direction more effectively.     

Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.     

Incentives and beneficence

Whether an action is beneficent may depend on its effect on incentives for future behavior of the beneficiary. This strategic consideration makes our moral account of beneficence far more complex than most discussions suggest. Its effect on utilitarian and Kantian moral theories is discussed. In general, strategic incentive considerations recommend institutional rather than individual resolution of many problems, so that moral theory must in part be political and institutional.     

When EU Citizens become Foreigners

Although EU citizenship has matured as an institution, a combination of hope and caution ought to accompany the tale of its evolution. Contradictory processes of inclusion and greater equalisation coexist with exclusionary logics. These would have to be taken into account, and be addressed, by assessments of its present state and its future evolution. A focus on three key manifestations of state sovereignty, namely, the erasure of citizenship status, expulsion and the disappearance of individuals owing to extraordinary rendition, sheds light onto the edges of EU citizenship and the undesirable effects of untrammelled state power on the lives of individuals. Probing into the moments when EU citizens are treated as aliens or foreigners, and the troublesome ambiguities, tensions and limitations surrounding them, reveals the gaps in the protection of EU citizens and the constraints that stand in the way of change in the institutional scheme of things.     

The Lisbon Judgment of the German Constitutional Court,the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

The ECJ has long asserted its Kompetenz‐Kompetenz (the question of who has the authority to decide where the borders of EU authority end) based on the Union treaties which have always defined its role as the final interpreter of EU law. Yet, no national constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the German Constitutional Court (FCC) has asserted its own jurisdiction of the final resort' to review future EU treaty changes and transfers of powers to the EU on two grounds: (i) ultra vires review, and (ii) identity review. The FCC justifies its claim to constitutional review with reference to its role as guardian of the national constitution whose requirements will constrain the integration process as a standing proviso and limitation on all transfers of national power to the EU for as long as the EU has not acquired the indispensable core of sovereignty, i.e. autochthonous law‐making under its own sovereign powers and constitution, and instead continues to derive its own power from the Member States under the principle of conferral. Formally therefore, at least until such time, the problem of Kompetenz‐Kompetenz affords of no solution. It can only be ‘managed’, which requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate jurisdiction to decide the limits of the EU's powers—a prerogative which, if asserted by both parties without political sensitivity, would inevitably result in a constitutional crisis. The fact that no such crisis has occurred, illustrates the astute political acumen of both the FCC and the ECJ.     

Is EU Administrative Law Failing in Some of Its Crucial Tasks?

Beneath the surface of steady changes in EU administrative law lurk a number of long‐term, structural problems. In this article, I argue that, because of these structural problems, EU administrative law is failing in some of its crucial tasks: (1) finding a balance between administrative convergence and administrative diversity within the EU legal system, (2) structuring administrative power and its exercise, (3) governing administrative instability. EU administrative law, however, is not necessarily trapped in the status quo. By identifying and articulating a number of long‐term problems, this article aims at providing some tools that future research could use in the discussion on the possible ways forward. More generally, it suggests that EU administrative law should be reshaped as a project of institutional design.     

Does the Emperor Have Financial Crisis Clothes? Reflections on the Legal Basis of the European Banking Authority

The European Union institutional package launched in response to the financial crisis used Article 114 TFEU as its legal basis. The author explores the legal basis for one of the European Supervisory Authorities recently established – the European Banking Authority (EBA). The use of Article 114 TFEU, the main Treaty basis used to harmonise laws in order to further the internal market, as the foundation for the EBA, is considered in detail. A paradox of contemporary EU institutional law is assessed here, considering whether on the one hand, the EBA is functionally both too narrow and too broad as a matter of law, while on the other hand, it may prove to be central to restoring confidence in EU regulatory powers, rendering it ‘too big to fail,’ despite its slender foundations in Article 114 TFEU.     

A two‐tier conception of European Union peoplehood: A realist study of European citizens’ bonds of collectivity

The European Union (EU) struggles to legitimate its rule. This realist study develops a conception of peoplehood in the EU polity, because, in contemporary Europe, ‘the people’ remains the sole source of political legitimacy. From a realist perspective, a conception of peoplehood should yield a coherent story why EU citizens should accept, or at least acquiesce, to EU rule. This study explores the possibility of a pluralistic conception being either multi‐layered, multi‐faceted or both. Taking a practice‐dependent approach, I first analyse the institutional systems that structure relationships between EU citizens. I secondly propose conceptions of EU citizens’ bonds of collectivity. Thirdly, I develop a novel two‐tier conception of EU peoplehood in which individuals remain bound together as national peoples, while these peoples are in turn united by commercial and liberal bonds. I submit that this conception can lay the foundation for a convincing story to legitimate EU rule.     

Justice,Legitimacy and the Authority of Legislation within the European Union

What are we to make of the authority of legislation within the EU? EU lawyers have questioned the significance of legislative decision‐making within the EU. This article challenges these views and argues that the EU legislature must enjoy adequate freedom to shape EU law with the general interest in mind. Institutional accounts that seek to curtail the authority of legislation tend to rest upon ‘content‐dependent’ conceptions of political legitimacy, according to which the legitimacy of a decision depends on its moral qualities. Such conceptions overlook reasonable disagreements on justice and rest upon an overly optimistic (pessimistic) view of the Court (the legislature). The article argues for a content‐independent conception of legitimacy, following which the benefits of legislative decision‐making are more easily understood. The authority of legislation deserves wider recognition among EU lawyers for reasons of political legitimacy and because the EU legislature is better positioned to decide in the general interest.     

Constitutions,Constitutionalism, and the European Union

The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties.     

The Constitution of a European Democracy and the Role of the Nation State

Starting from the presupposition that European democracy is necessary to the survival and development of the European Union, the author deals with the process which may entail a European constitution, and discusses the elements of the present legal structure of the EU which are conducive to a European Democracy. In particular, the author focuses on the incomplete, polycentric, and dynamic character of a possible EC/EU constitution, and on the duality of its legitimating principle. This claim is that these characteristics necessitate some institutional modifications of democratic principles if compared with national democracy, and that Euro-democracy is possible if we do not simply apply the standards of democracy valid for Member States, but succeed in developing criteria which are adequate to the institutional qualities of the EC/EU. Finally, the author maintains the legal character of the regulatory power of the Community, and invokes the mutual legal bonds linking the Member States and their peoples as the source of the Community.     

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.     

The Transposition of EU Law: ‘Post‐Decisional Politics’ and Institutional Autonomy

The transposition of European Union (EU) law into national law is a significant part of the EU policy process. However, political scientists have not devoted to it the attention that it deserves. Here, transposition is construed as part of the wider process of policy implementation. Drawing on implementation theory from the field of public policy, the article outlines three sets of factors (institutional, political, and substantive) that affect transposition. Second, the article examines the manner in which eight member states transpose EU legislation, and identifies a European style of transposition. An institutionalist approach is employed to argue that this style is not the result of a process of convergence. Rather, it stems from the capacity of institutions to adapt to novel situations by means of their own standard operating procedures and institutional repertoires. It concludes by highlighting (a) the partial nature of efforts at EU level to improve transposition, themselves impaired by the politics of the policy process and (b) some ideas regarding future research.     

National Parliamentary Control of EU Policy: The Challenge of Supranational Institutional Development

The history of the EU is characterised by rapid and complex institutional development. This leaves European Affairs Committees (EACs) in national parliaments with a moving target problem in their endeavours to control the government's EU policies. This paper investigates how EACs react to this challenge. Building on the rational delegation literature, it is argued that EACs are likely to adapt control instruments in tandem with institutional changes at the supranational level. Using McCubbins and Schwartz (1984, American Journal of Political Science, 28, 165–179), it is further argued that EACs are likely to want to impose both police patrol and fire alarm control on the government. These arguments are investigated in the case of Denmark during the 50-year period since the first Danish application for EU membership in 1961, and considerable support is found for the authors' hypotheses.     

Transformation or Dilution: Fundamental Rights in the EU Social Space

Abstract:  This article argues that in developing social rights to counterbalance economic freedoms, the EU has begun to reformulate traditional notions of rights. Instead of creating rights in their traditional individualised, negative, judicially enforceable, and fault-based form, a new proactive model is emerging, which aims at institutional change, based on the notion of the active citizen and the centrality of participation in both rule formation and enforcement. It is argued that while this model has important advantages, its weakness lies in its dependence on political will. The challenge is therefore to ensure that proactive strategies are firmly centred on fundamental rights rather than political discretion. Part I briefly sketches the development of social rights in the EU; Part II examines the applicability of Third Way ideology; Part III considers European employment strategy and gender mainstreaming, asking whether they represent a dynamic new manifestation of fundamental rights at work, or a betrayal. Part IV applies a similar evaluation to the EU Charter.     

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.