The Bologna Process: From a European Law Perspective

The Bologna Process, an intergovernmental process of voluntary policy convergence towards a common higher education structure, poses several concerns from a European law perspective. The Bologna Process takes place outside the institutional framework of the EU, while there would have been legal competence to enact the content of the Bologna Declaration as a Community measure. Hence it could be argued that Member States have straddled the borders of loyal cooperation by avoiding the institutional framework of the EC with its built‐in checks and balances. They have obstructed the Community in the attainment of its tasks, which stands in tense relation to Article 10 EC. Moreover, there exist several other objections against the Bologna Process, particularly in terms of democracy, transparency and efficiency. The Bologna Process resembles a deal done in a smoke‐filled room, and its voluntary character combined with a lack of coordination prevents its effective implementation.     

The reasonable citizen: A model for bridging ethics and politics in the EU

The ethical-political model of the EU needs normative rethinking after the pandemic. Using Dworkin's ‘thesis of continuity’ between ethics and politics, I argue that a strong model of the citizen, called on to exercise duties and civic virtues, is badly needed by the EU. The legitimacy of EU political institutions is not enough, if we want to promote the participation of citizens to their functioning. The basic point is that of arguing in favour of the model of ‘the reasonable citizen’, aimed to overcome the dominant liberal model of ‘citizenship as rights’. This is shown by the ‘European Social Model’, but its weaknesses need to be supplemented by a republican conception. In order for the reasonable citizen not to be just an abstract ideal, some measure of operationalisation is proposed through ‘progressively increasing constellations of common identities’; these rely on and respect the multiple demoi of the EU.     

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.     

EU Citizenship and Political Identity: The Demos and Telos Problems

Citizenship is the cornerstone of a democratic polity. It has three dimensions: legal, civic and affiliative. Citizens constitute the polity's demos, which often coincides with a nation. European Union (EU) citizenship was introduced to enhance ‘European identity’ (Europeans’ sense of belonging to their political community). Yet such citizenship faces at least two problems. First: Is there a European demos? If so, what is the status of peoples (nations, demoi) in the Member States? The original European project aimed at ‘an ever closer union among the peoples of Europe.’ Second: Citizens are members of a political community; to what kind of polity do EU citizens belong? Does the EU substitute Member States, assume them or coexist alongside them? After an analytical exposition of the demos and telos problems, I will argue for a normative self‐understanding of the EU polity and citizenship, neither in national nor in federal but in analogical terms.     

Europe Entrapped

The EU in 2013 finds itself at the crossroads of either something considerably better or something much worse than the status quo; in other words, in a crisis. That much is nearly universally understood, both within Europe and widely beyond. So I am certainly not alone in believing that the current crisis, a crisis that is the cumulative outcome of a financial market, sovereign debt and EU integration/democratic deficit crises, is an extremely serious and unprecedented one, frightening due to its complexity and uncertainty. If it cannot soon be resolved (but nobody knows how soon is ‘soon enough’) through a major institutional overhaul of the EU, both the political project of European integration and the global economy will suffer badly—to say nothing about the massive social suffering it has caused already in the countries of the European periphery.     

European integration assessed in the light of the ‘rules vs. standards debate’

The interplay of various legal systems in the European Union (EU) has long triggered a debate on the tension between uniformity and diversity of Member States’ (MS) laws. This debate takes place among European legal scholars and is also paralleled by economic scholars, e.g. in the ambit of the ‘theory of federalism’. This paper takes an innovative perspective on the discrepancy between ‘centralized’ and ‘decentralized’ law-making in the EU by assessing it with the help of the rules versus standards debate. When should the EU legislator grant the national legislator leeway in the formulation of new laws and when should all be fixed ex ante at European level? The literature on the ‘optimal shape of legal norms’ shall be revisited in the light of law-making in the EU, centrally dealing with the question how much discretion shall be given to the national legislator; and under which circumstances. This paper enhances the established decisive factors for the choice of a rule or a standard in a national setting (complexity, volatility, judges’ specialization and frequency of application) by two new crucial factors (switching costs and the benefit of uniformity in terms of information costs) in order to assess law-making policies at EU level.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

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.     

Teaching labour law in a technical college

In this lecture, the author identifies six themes in UK (predominantly English) and European practice which have permeated his 19 years in quality assurance: the vagueness of the term ‘quality assurance’; its uncertain purposes in the early years; the critical importance of its ownership and financing; the increasing tendency for quality assurance to be seen as a proxy organ of external power and control over autonomous higher education institutions; the rise and growing importance of developments in Europe; and the uncertain future direction of quality assurance. He examines changes in the purposes informally ascribed to the process and concludes that there has been a shift first from, and then back towards, accountability as the dominant purpose, and that this may displace enhancement as a key objective. The ownership and financing arrangements of the QAA limit its independence of action and possibly its effectiveness. They are also indicative of the government's desire to influence the direction of external quality assurance. In the European arena, the quality assurance aspects of the Bologna Process are described in terms of a jockeying for power over higher education between universities, governments and the European Commission. The lecture ends with some general observations about quality assurance.     

A Duty‐Free Europe? What's Wrong with Kochenov's Account of EU Citizenship Rights

This article disputes the recent argument of Dimitry Kochenov advocating an ‘EU Citizenship without Duties’. His thesis rests on an untenable form of philosophical anarchism that overlooks the role played by our political obligations to state structures in securing rights. At best, his argument suggests a ‘thin’ form of EU citizenship that allows European citizens to choose which of the Member States they wish to become morally obliged to. A ‘thicker’ form of EU level citizenship could only arise by creating civic obligations at the EU level, the position he rejects. To the extent certain Court of Justice judgments in this area reflect parallel reasoning to Kochenov's, they too suffer from a similar failure to appreciate the role of civic duties to particular Member States (or, eventually, the EU) in creating and securing the status of citizens as equal rights bearers.     

Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration

European economic integration with a minimalist social policy at EU level was in part made possible by strong domestic labour market and social welfare institutions. The main contention of this paper is that EU market liberalisation was embedded within institutions of social citizenship at domestic level, which served to counter the liberalisation of the internal market. But this settlement has been put under strain. In addition to the challenges posed to the sustainability of European welfare states by the global economic crisis, the internal market jurisprudence of the Court of Justice casts doubt on the sustainability of the ‘embedded liberal bargain’. This paper focuses on the role of the Court, in particular in its jurisprudence on the interaction between (EU) market freedoms and (national) labour law, which undermines the ability of states to retain their regulatory autonomy over labour or social welfare law and, arguably, speeds up the unravelling of the ‘embedded liberal bargain’.     

The Limitations of a Multilingual Legal System

The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant texts, which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law.     

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.     

Democracy in Europe: Why the Development of the EU into a Transnational Democracy Is Necessary and How It Is Possible

Can the process of European unification lead to a form of democracy that is at once supranational and situated above the organisational level of a state? The supranational federation should be constructed in such a way that the heterarchical relationship between the Member States and the federation remains intact. The author finds the basis for such an order in the idea of the EU constituted by a ‘doubled’ sovereign—the European citizens and the European peoples (the States). In order to sustain such an order, reforms of the existing European treaties are needed. It is necessary to eliminate the legitimation deficits of the EU in a future Euro‐Union—that is, a more closely integrated core Europe. The European Parliament would have to gain the right to take legislative initiatives, and the so‐called ‘ordinary legislative procedure’, which requires the approval of both chambers, would have to be extended to all policy fields.     

Applying Precaution in EU Authorisation of Genetically Modified Products—Challenges and Suggestions for Reform

In this article, I endeavour to examine concrete challenges that arise with regard to implementation of the precautionary principle in the field of European Union regulation of genetically modified organisms (GMOs). Developed by the European courts into a general legal principle, precaution requires EU regulators to strike a balance between scientific and political legitimacy when taking decisions on risk‐entailing products. Following this understanding, the current GMO legislation creates precautionary governance structures that allow for a broad input into the authorisation process, not only of scientific, but also of ‘other legitimate factors’. At the same time, it can be criticised for narrowly defining precaution as a decision rule, which, if applied correctly, will lead the decision maker to the ‘right’ decision. I argue that this misconception is one of the reasons why, in the current authorisation practice, the EU institutions fail to apply the principle in a balanced way, falling into the extremes of either purely science‐based decision making or a highly politicised precautionary rhetoric. I suggest that in order not to be paralysing, precaution should be understood as a procedural principle that provides for precautionary governance, thus enabling regulators to make appropriate risk choices.     

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.     

The Proposed ‘Common European Sales Law’: Legal Framework and the Agreement of the Parties

The European Commission's Proposal for a Regulation on a Common European Sales Law (‘CESL’) seeks to create a European scheme of contract law available for parties to choose to govern cross‐border contracts for the sale of goods, supply of ‘digital content,’ and for the supply of related services. This article explains the background to the Proposal, sketches out the purposes and scope of the CESL, and considers and criticises its legal framework (and in particular its relationship with private international law) and the key requirement of the parties’ agreement. In the author's view, the CESL scheme remains an unconvincing basis for the achievement of its economic purposes and, as regards consumer contracts, puts too much reliance on the agreement of the consumer as a justification for the loss of their existing protection under EU private international law rules.     

The changing landscape of higher education: an analysis of how national change might be brought about in American higher education compared with the Bologna signatory states

Throughout much of the world higher education has been subject to scrutiny, including for example cost, outcomes, stakeholder value, and change. The intensity of the scrutiny and the possible consequences in terms of change have accelerated as a result of 2009 being the year of financial turbulence and scarce resources being used to prop up failing industries such as the automobile industry, compounded by measures such as quantitative easing and huge amounts being made available to the banking sector. This article looks at the different contexts and legal frameworks regarding change being required as a result of legislation rather than happening through some organic way. The article does not focus on the merits of possible change but on how change may be brought about. The European context is that of the Bologna Process (with a brief reminder of the European Union's competency in this area), the US context is that of change at national, regional or state level but with the primary focus being national level change.     

‘Consumer’ versus ‘Customer’: The Devil in the Detail

According to the European Commission, the objective of EU competition rules is enhancing ‘consumer welfare’. In EU competition law, however, ‘consumer’ means ‘customer’ and encompasses intermediate customers as well as final consumers. Under Article 102TFEU, harming intermediate ‘customers’ is generally presumed to harm ‘consumers’ and where intermediate customers are not competitors of the dominant undertaking, there is no requisite to assess the effects of conduct on users further downstream. Using advances in economics of vertical restraints and, in particular, non‐linear pricing, this article shows that there are instances where the effect on ‘customer welfare’ does not coincide with the effect on ‘consumer welfare’ and the presumption can potentially lead to decisional errors. Thus, if the law is to serve the interests of ‘consumers’, the Commission should reconsider this presumption and its interpretation of the ‘consumer’ in ‘consumer welfare’; otherwise, it remains questionable whose interests EU competition law serves.     

European educational policy on shifting sand?

European integration makes educational policy even more important, especially as an instrument to forge the future of Europe. This growing consciousness is a motivation to critically analyse and compare the educational policies of the countries of the European Union. This investigation is only realistic on condition that the research objectives are clearly set out. Therefore, the following questions guide the article: 1. Concerning the ‘facts’: – Can the history of European educational policies provide us with a taxonomy to distinguish ‘types’ of educational policy? – What are the main changes concerning both structures and role conceptions in the field of educational policy? – Is educational policy autonomous or is this policy influenced by other leading sub-systems? – What is the impact of supra-national organisations on educational policies? – Are educational policies in the EU visibly influenced by (new?) underlying ‘ideologies’? – What are the main current policy issues in the EU-countries? 2. Concerning the ‘trends’: Is it possible to deduce certain ‘trends’ from the comparative analysis of the mentioned ‘facts’? 3. Concerning the ‘critical analysis’: – Does the literature on educational policy analysis provide us with ‘critical interpretation schemes’? – What will the outcome be if the discovered ‘facts’ and ‘trends’ are confronted with such-like schemes? The article concludes with some critical recommendations concerning the future of educational policy in the EU.