Tobias Auberger and Tanja Hitzel-Cassagnes. EU-Enlargement and Legal Conflicts. Principled or Incidental? First Draft

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1 Tobias Auberger and Tanja Hitzel-Cassagnes EU-Enlargement and Legal Conflicts. Principled or Incidental? First Draft Paper prepared for the Workshop Integration or Absorption? Legal discourses in the enlarged Union, Hanover, September 28th to 30th Introduction Since the intensification of the enlargement debates during the 1990s the worries about potential failures and dysfunctional effects of accession increased in at least two different aspects. On the one hand, ongoing scepticism was raised with respect to the successful and structurally embedded incorporation of the acquis communautaire of the (old) European Union s legal status quo into the frameworks and practices of the legal orders of the new Member States. Efforts of Europeanisation, or better: Of harmonising the national legal systems with European Law during the pre-accession phase already revealed the systematic, structural and practical problems of streamlining bodies of national law in toto. Although smoothed through special transitional rules slowing down or delaying implementation, the overall task was nearly of revolutionary quality: It was about changing the legal systems ranging from civil codes via administrative statutes to constitutional law; in formal and procedural aspects as well as in substantial fields and issue-areas. Apart from that, the functioning of adjudication and practical implementation, esp. accustoming national judges to their role of being European judges at once revealed that the structural and institutional preconditions of effective transition were quite demanding 1. Early empirical studies accompanying the transition process drew a sceptical picture regarding the compatibility and adjustment of Eastern European legal systems to Western European and European Union standards. Predominantly, these studies demonstrated that factual gaps and differences existed in standards of (individual) rights, of remedies, and of judicial protection as well esp. in material fields related to social and labour rights, equality rights, minority protection, and to a 1 Later on we will discuss in detail the structural and institutional conditions enabling the harmonisation of the legal systems and of adjudication practices (see below).

2 2 certain extent citizenship rights (see Blanco Sio-Lopez 2006, Breda 2006, Gosewinkel 2005, Petersen 2005, Reich 2005, Sloat 2004, Pridham 2006). On the other hand, concerns about dysfunctional or disruptive effects to the very progress of (old)european Constitutionalisation have been raised reaching from fears of giving up a fragile but accomplished constitutional compromise and of impeding further constitutionalisation to fears of disrupting the institutional balance within the EU as well as the status quo of interaction between national and supranational (esp. legal) actors and institutions. A second class of concerns related in a broadest sense to what might be called Europeanness, or better: To the ideational preconditions of a functioning European Polity be it in the sense of a necessary common pre-political cultural identity or in the sense of a mere co-operative (and political) orientation and commitment to the rules of the game (depending on and varying according to the different notions of the European Union s finality ). A third class of concerns was articulated from a rather pluralist-sceptic point of view and emphasised the potential dysfunctional effects of increased plurality and diversity within an enlarged Union. These concerns related to quite different fields, to political processes in general as well as to concrete institutional practices. Anxieties about further fragmentation through enhanced co-operation, opt-outs e.g., and about deepening conflicts over cultural and political values, along with anxieties about disruptive effects of divergent collective memories were articulated. These although divergent kinds of considerations might at first sight suggest ways and strategies to answer the question whether the European Union s Enlargement poses obstacles that might be classified as either principled or merely incidental, i.e., whether these problems are of a genuine structural origin and of different kind or whether they hint to a re-articulation of conflicts that have ever been inherent to the process of European integration 2. However, in the following we will argue that this expectation proves to be too short-sighted. At a closer look, all the above mentioned scepticisms basically share one 2 We will come back to this assumption. For the moment it suffices to remind at a couple of hard cases in the course of European Integration. One conflict line that has since the late 1970s until today played a role was about how to classify the European Community as a Polity be it a funktionaler Zweckverband, a social or a democratic and political Community or Union. Deriving from these different basic notions, the character of the European Union s constitutional order and its material legal content has always been debated: Incremental or quasi-constitution, factual vs. normative (democratically justified) constitution, failed or constitution proper etc.

3 3 common feature: They conceive the Enlargement-process as a rather one-sided process of transformation characterised as an adjustment on behalf of the new Member States. This view relies on the notion that transformation is a pre-defined path, that it is unequivocally pre-figured and hence procedurally and substantially closed. The problem is that this view neglects, that, firstly, transformative processes will also affect the status of the (old) Member States. Therefore, enlargement implies a mutual adjustment rather than merely a onesided one. Secondly, the status quo and modus operandi of the European Union is affected too so it is much more plausible to regard Enlargement as a transformative process within the European Union itself. Both objections lead to the conclusion, that openness and reversibility are so far neglected though, to our mind, systematically they are procedural features of the Enlargement process. But let us have a quick look at the problems associated with the incorporation of the aquis communautaire and the constitutionalisation process of the European Union. a.) Regarding the above mentioned worries about successful implementation of the acquis communautaire, the picture is fall less clear than stated by the critics. The development of the European Union is characterised by continuous conflicts about the substantial content and scope of law that can be qualified as being part of the acquis. Thus, the acquis itself has always been a contested concept, and its acknowledgement by the national legal orders in particular hesitant and disputed. Apart from that, there have always been conflicts about the material content and meaning of the acquis as a body of law. The reasons for this are of various kinds: Firstly, the acquis communautaire is fragmented into quasi-constitutional principles of law (supremacy and direct effect on the one hand, basic and individual rights, proportionality on the other), procedural and administrative statutes, and material codes in different areas (from purely economic/competition/market-law to social and political rights like citizenship). Secondly, the legal instruments of the acquis are differentiated according to range and binding effect depending on the kind of legal source (treaty-law, regulation, directives, and precedents). Thirdly, and that might be the most crucial aspect, the structure of the aquis highly depends on a broader definition of the European Union as a functional, social or political community these background orientations are not least determining the concept of

4 4 rights associated with them, e.g. negative rights of (economic) freedom on the one hand vs. positive (social, political, and procedural) rights on the other. These systematic difficulties can very well be illustrated by concrete conflicts about the legal status quo of the European Union: E.g., the enforcement of supremacy and Direct effect as cornerstones at the level of constitutional principles ; the jurisdiction relating to non-discrimination and equality (the extension from a negative, market-related principle to a universal norm of equality even allowing affirmative action) is another striking example, as well as the incremental incorporation of social rights and protective measures; since the inclusion of European Citizenship in the treaty of Amsterdam the jurisdiction about the political and procedural notions of citizenship-rights has been contested (regarding different access-rights for instance). Consequently, one practical effect of these disputes is that the actual implementation of what might be called the acquis varies among the (old) Member States existing opt-out and enhanced cooperation agreements are but one example; apart from that, however, it is illusionary to expect harmonisation to be unitary and fully accomplished. Regarding the enlarged integration, it is quite obvious that the idea of transposing the aquis is crucial for upholding the very idea of a Community (but this is always the case) yet, the above mentioned examples show that any streamlining of the European system by means of fully and in toto incorporating the aquis is a process that is (still) open-ended and reversible. Problems of incorporation might well be rooted in structural and practical defects, but they may as well be provoked by serious, principled and justified contestation. To our mind, in order to clarify the source of the problems, a procedural openness is necessary to enable mutual and reciprocal dialogue to adjust the aquis acceptable to all participants (see below). b.) This line of argumentation indicates to a certain extent that in quite a similar way the worries about the constitutional status quo of the European Union take a wrong way. It is misleading to consider the status of the Constitutionalisation of the European Union as accomplished. The picture the critiques draw of the situation of accession is too prefigured and static insofar as it suggests that accession is for the new Member States just a matter of receiving a constitutional order prêt-a-porter.

5 5 Even in reality, as certain studies showed, things went better: The prospect of enlargement created in the first place the opportunity and practical pressure for further constitutional developments after Copenhagen. The accession process offered the chance (which was willingly used) to set up debates and dialogues about foundational constitutional principles (esp. democracy) of the Union (see Dangerfield 2006, Ellison 2005, Walker 2003, Weiss 2005). The according institutional reforms were highly influenced by the vision of an enlarged Union: The eastern enlargement influenced the constitutional developments in the EU even beyond the issue of merely institutional reforms. The political conditions for membership set at the Copenhagen summit and the importance of these values in the accession negotiations helped to stimulate the sensitivity for democracy and basic values within the EU and its constitutional order itself, which influenced the agenda at Amsterdam IGC (Weiss 2005: 3, stress by Auberger/Hitzel-Cassagnes). In systematic terms, this quote hints at two important points. On the one hand, we should give up notions of the Enlargement as an external reference point: Enlargement (or better: the process of accession) is inevitably part of the European Constitutionalisation and vice versa. At the same time but on the other hand, if we take this internal perspective (not differentiating between in- and outsiders in a way), we can conceptually interpret the present situation as a foundational one insofar as the inclusion of new voices creates a new constitutional moment of its own. Thus, the focal point should not be the potential loss of the old order but the openness of constitutional processes and revisions. We want to take these introductory remarks as a starting point for introducing a normative interpretation of the Enlargement process which we will take as a conceptual background to evaluate the legal, i.e. constitutional, conflicts and developments relating to the above mentioned question of the structural impacts of enlargement (2). For the sake of clarifying the systematic and normative challenges associated with an enlarged Union we will discuss four selected issues exemplifying considerations of fragmentation, incommensurabilities and asymmetries (3).

6 6 2. Enlargement as a normative challenge for the European Union In normative terms, the idea of constitutionalising the European Union is compared with the standards traditionally associated with constitution-making proper ambiguous in several aspects: First of all there is a lack of a factual foundational moment including something like a constitutional assembly and in particular a visible pouvoir constituant, able to articulate and execute a general, constitutionalising will. On the other hand, basic features of the development of the European legal system (i.e. supremacy, direct effect, the incorporation of human and fundamental individual rights, the establishment of a system of judicial review and appeal) have frequently been characterised as being part of a process of constitutionalisation however, in normative terms, these qualifications have always been subject to disagreement. If one is willing to accept the factual and incremental development of the European legal system as a process of Constitutionalisation, serious questions about the justification and legitimacy of such a Constitution arise questions, the European Union itself has tried to tackle by establishing such fora like the charter of fundamental rights and the Convention. Although we cannot at this point argue for it in detail, we do not want to deny the genuine constitutional status of the European legal system; however, in normative terms this (factual, incremental, mainly informal and elite-driven) constitutionalisation can be legitimised only if it takes the form of processes of justification, because only processes of justification can guarantee reciprocal understanding as well as mutual recognition and acceptance 3. Legitimate processes of justification therefore have to meet two sets of normative criteria. On a general level, such processes have to be essentially discursive or dialogical, in other words: A reciprocal game of reason-giving and reason-taking has to be established, furthermore, they have to be open for contestation. Both aspects imply the notion of equal concern and respect which has to be realised by the equality of voices on the one hand and the potential inclusiveness of all stakes on the other hand. On the procedural level in concrete, these processes of justification have to be characterised by the principles of transparency, 3 In the same vein we cannot in extenso outline and justify this normative starting point basically relying on conceptual notions of discourse theory and deliberative democratic theory. For further and principled elaboration see Habermas (1992, 1994, 2001 and 2003), Forst (1999 and 2005), Schmalz-Bruns (1995), Michelman (XX). For different approaches relating to the supra-, trans- and international level see Bohman (2004), Closa (2005), Gerstenberg (2002), Eriksen (2005), Auberger/Hitzel-Cassagnes (2005), Schmalz-Bruns (2005), Menendez (2005), Joerges (2002).

7 7 openness and reversibility. Thus, constitutionalisation can only be regarded as being legitimate if it is able to meet these normative standards. Processes of justification inevitably rely on a specific structure embodying these principles, and ensuring the normative quality, or better: the rational acceptability of the outcomes. The accession of the new Member States, resp. the enlargement of the European Union, has often been viewed as a mere extension of the constitutionalising process we have so far observed, that means, not touching the status quo of the polity itself. Part of this view forms the idea that the new Member states fit in smoothly without really making a difference. The problem is that this view is not able to acknowledge the new Member States status as equally being able to induce change and to influence the very process of constitutionalisation bluntly speaking, this view represents much more a perspective of colonialisation. Another idea is related to the expectation, that the new Member States incorporate the body of existing European law (i.e. the acquis communautaire ) of the European Constitution without dissent and derogation. Furthermore, they are not expected to shift the margins of interpretation and dispose of contested meanings and concepts. We have already remarked that this perception is in normative terms dissatisfying because it neglects the requirement of procedural openness of processes of European constitutionalisation in order for them to be acceptable and legitimate. Apart from that, we suggest to regard accession as a foundational situation that should be considered as being in normative terms an opportunity or chance. To our mind, it is useful to interpret enlargement as a kind of structurally determined point of constitutional reflexivity. In this perspective, accession should be seen as a Sollbruchstelle of European Constitutionalisation. Insofar as the new Member states are of equal stance for European Integration, their participation includes the possibility of contestation and potential reversibility which are, in our point of view, exactly the normativeprocedural requirements of constitutionalisation. So, within this framework, integration is to be conceptualised as processes of mutual recognition and understanding. In particular, it highlights the role of reciprocal dialogues which, apart from ensuring the acceptability of the outcomes, foster mutual learning-processes. At this point of the argumentation, we would like to take the idea that mutual learning processes form the baseline of (in normative terms successful) accession-processes as a point of departure for a closer look at different (institutional, structural or practical) problems associated with an enlarged Union. This

8 8 starting point should provide us with a kind of heuristic device in order to identify the status of the problems and to examine their normative relevance in particular. The introductory remarks about the difficulties associated with the incorporation of the acquis and the integration of the new Member States in the European constitutional order demonstrates a great variety and disparity of the kind of defects identified. They ranged from mere practical considerations to fundamental doubts about the structural preconditions for successful integration. Although we cannot systematically discuss all of these aspects we would like to elaborate on a few, distinct and exemplary, issues: (1.) differences and difficulties of implementation in the field of mainly individual rights, (2.) cultural fragmentation and incommensurabilities, (3.) asymmetries of voice, and finally, (4.) Differences of concepts of law. By discussing these issues we will sort the problems along the lines sketched out above, i.e., we will evaluate their status in terms of structural impact on the one hand, and in terms of effectuating the normative quality of Constitutionalisation on the other hand. Accordingly, the idea of mutual learning-processes serves, as mentioned above, as a heuristic framework esp. to assess integration in the enlarged Union. In this way we hope to specify some kind of enabling conditions of transformation. 3. Enlargement and reflexive integration 3.1. Difficulties of implementation The first sort of problems relates to a diagnosis of fundamental differences within the enlarged Union regarding all those individual and group rights considered to be crucial to any broader concept of democratic participation, i.e., minority rights, non-discrimination rights and to a certain extent social rights (see Darke 2005, Hartkamp 2004, O Hagan 2004, Reich 2005, Schmidt 2006, Sloat 2004, Wiener/Schwellnus 2004). The implementation of the acquis communautaire, i.e. the transposition of its distinct and substantial elements into national law has been at the core of the adjustments demanded of the candidate countries. Regarding the set of concrete requirements spelled out by the Copenhagen criteria, most of them can be challenged in normative terms depending on the peculiarities of different approaches to individual and human rights as well as on the particular conceptions of democracy and the rule of law principle. Yet, the most contested part was the required implementation of minority rights. On the one hand, the protection of minorities played an im-

9 9 portant role in the European foreign policy after 1989 and especially in its accession strategies while, on the other hand, the candidate states differed widely with respect to an active minority policy, to the recognition of internal minorities, and to the granting of minority rights. The practices of implementing minority and non-discrimination rights by the candidate states during the accession negotiations showed that the actual influence of EU conditionality depended on internal conditions especially in the Eastern European countries and that national legislation differed substantially (see Wiener/Schwellnus 2004). Although the factual existence of internal and external minorities and the constellations of internal actors played a decisive role, differences regarding the incorporation of minority rights might also have stemmed from the lack of a single and coherent minority policy of the 'old' Union towards the candidate countries. During the accession negotiations the European Union accepted and promoted quite divergent conceptions of minority protection and accordingly, different legal remedies and procedures. As the studies of Wiener and Schwellnus reveal, at the time, the Union's minority policy referred to conceptions borrowing from doctrines of the United Nations on the one hand, the OSCE and Council of Europe on the other hand which are conflicting insofar as the UN's definition of minorities is rather broad and comprehensive whereas the OSCE's conception of minority rights restricts its scope to citizens, i.e., excluding emerging groups of unsettled and precarious (legal) status (see Wiener/Schwellnus 2004: 33). This very sketchy reference might suffice to point out that within the European Union, the status of minority protection and the concepts of minority rights have been heterogeneous as well as internally contested and ambivalent (esp. if one takes Wiener s remarks seriously, pointing at a kind of hypocrisy emphasising minority rights with regard to the new member states but neglecting them in an internal perspective). A similar picture can be drawn by examining the incorporation of the acquis in various fields like equality, non-discrimination and social rights. The European regulation of social and working standards, of non-discrimination rights and of measures to promote gender equality has been formally implemented in the new member states at quite an early stage. Again, rather similar to the old member states the new member states vary with respect to the conceptualization of social rights, to concrete measures and institutions as well as to the overall scope of accomplishment (see Sloat 2004). So, in a way, the mere observation of

10 10 differences can not, at first hand, be considered to be a structural feature the new member states share exclusively, because even within the 'old' union social standards and rights relating for instance to gender equality are contested and far away from being unitary (see Wiener/Schwellnus 2004, Thym 2005, Tully 2006). Both fields of rights show that the Enlargement of the European Union is more than just easily extending the existing Union with a settled and coherent corpus of (esp. individual) rights. Quite on the contrary, the problems of incorporating a unified set of individual and human rights revealed the contested nature of those rights in terms of protection spheres, scope of application, procedural guarantees and remedies, and to a certain extent of the normative core of the acquis within the 'old' Union in these respects. Considering these problems of ambiguity, enlargement should rather raise expectations to foster reciprocal understanding in the framework of a discursive project; insofar it could serve as a departure point for a reflexive consideration of the normative, substantial and procedural basis of individual and human rights within the European Union and its member states Cultural incommensurabilities The second group of concerns brought up about a functionally successful and normatively valuable constitutionalisation of an enlarged Union refers to differences of the (political-) cultural background 'dividing' parts of the new members from the old European Union. The most prominent and fundamental aspect among these concerns is the rise of ethnically based nationalisms in Eastern European states after the fall of the Soviet system. Although far from being new ideologies without historical roots and precedents patriotic and nationalist concepts reawakened after and were even reinvented (Priban 2005: 151) - as a perceived cultural fundament of the constitutional transformation from socialist states into democratic (nation-)states. Even if these identity based concepts may vary with respect to extent and (discriminatory) quality, it is apparent that in each of the new member states the rise of ethnically constructed nationalisms is a common feature this phenomenon has frequently tried to be explained in theoretical terms as a transformational problem, i.e., that the (more or less) fragile new states had to rely on strong common identities in order to succeed in transforming into a modern nation state (see Kitous 2006, Blanco Sio-Lopez 2006, Marin 2006).

11 11 Apart from the fact that these constructions are not and have never been uncontested and apart from the fact that in most of the new member states minorities that are excluded from the ethnically determined notion of nation exist(ed), there are several problems on a more general level. The construction of shared identity, substantialised on the basis of ethnos is in any way based on an ethnical and cultural rigidity not open to contestation and procedural reversibility, so it inevitably falls short with respect to the fundamental normative idea of mutual recognition. And it is obviously even more awkward if ethno-nationalist attitutes have to come to terms with European Integration and European constitutionalisation in particular: In this perspective, the absence of even the slight chance of successfully constructing or inventing a shared (political and civic) identity on European level along the given national paths seems to render further integration unfeasible. The suspicion is that the Eastern European countries will be defending their recently gained national sovereignty at the cost of further integration and at the cost of their European partners. Insofar as there are these kind of stumbling stones for the establishment of a European civic identity, based on a secular, rights-based and political ethos, further integration is itself seriously encumbered. But although the newly 'emerged' nationalist movements may seem to refer to a greater extent to notions of ethnicity than their Western and Southern European counterparts, it is definitely too short-sighted to believe these debates to be uniquely an Eastern European phenomenon. Even if we neglect the regional and regionalist conflicts, we should acknowledge that within the 'old' European Union similar arguments relying on culturalist and ethnic foundations have always played a role in different contexts be it in arguing against a democratically based Union with reference to the non-existence of strong European identities or be it simply in defending existing strong identities at the national or sub-national level 4. Although most of these authors do certainly not share a strictly exclusive notion of the nation and the nation-state based on ethnicity, they nevertheless stress that democratic states rely on the prerequisite of a shared and given identity, or in other words (but boiling down to the same): Democracy relies on factual presupposition (shared identity) it is not able to reproduce itself. So in a way, these remarks again hint at the fact that the problems the new Europe is confronted with are the same perhaps in different cloths as the old Europe has been and is experiencing. 4 Compare exemplary the approaches to European democracy by Böckenförde (XX), Grimm (XX), Preuß (XX), Offe (XX), but also Scharpf (XX).

12 12 At that point, however, we can argue for an alternative view, i.e., against the notion of democracy necessarily and exclusively being based on strong identities. Contrary to this perspectives we can trust in the institutional engineering capacity of democratic institutions insofar as political institutions and esp. inclusive and participatory procedures and processes can foster identity building 5. The establishment of political institutions and their democratic domestication may in general very well be accompanied by emerging civic identities, in particular if they are backed by positive participatory rights. The European process of constitutionalisation should insofar as it successfully establishes a thick net of constitutional law guaranteeing political and civil rights to its citizens at the European level, e.g. by enriching the notion of European citizenship with enforceable positive individual rights be considered to be able to counter or to neutralise (Priban 2005) the set of primordial identities in the shape of strong ethnical, cultural and national identities. Although European identity cannot be expected to simply substitute the national ones due to its multilayered constitutional structure, multidimensional identities and solidarities may be developed. Nevertheless, the prospect of fostering a political or civic sense of identity within the framework of an open-ended project of Europeanisation will certainly rely on the legitimacy of the participatory processes. Only if these processes are rendered inclusive and transparent, open to reciprocal understanding and mutual acceptance, European citizens can be expected to accept the European Union as legitimate, and not to be alienated from the polity as such. Only under these conditions one can hope that the emergence of a new civic European identity is in Priban's (2005: 251) words indeed able to marginalise ethnos as a foundational principle Equality or Asymmetry? Reforms of the founding treaties as well as the drafting of the Charter of Fundamental Rights and the work of the Convention were highly intertwined with the pre-accession processes and the enlargement-debates in general. Neither having been represented in all institutional contexts preparing and negotiating constitutional reforms nor having been endowed with equal voting-power, the (at the time) candidates of enlargement were highly involved in these debates. They took part, for instance, in the preparation and discussion of the Draft Constitution where they were granted hearing-rights (see Anderson 2005, Walker 2003, 5 Habermas (XX), Michelman (XX), Gerstenberg (XX), for instance, argue in this direction.

13 13 Weiss 2005, Dangerfield 2006, Barani 2006). On the other side, in anticipating the joining of the European Union the candidate countries started to reform their legal systems and made first efforts to Europeanise their legal codes in order to prepare enlargement esp. after they became obliged to gradually harmonise their national legal systems (see Kühn 2005). On the one hand, this process led to various negotiations about specific transitional measures and, on the other hand, it influenced the efforts of constitutional and institutional reforms insofar as the inclusion of the candidate countries was ameliorated and their concerns were taken more seriously into consideration. However, it might be inspired by an ex-post-facto evaluation of this situation exactly this experience of just being allowed to articulate one s own stance without being systematically and formally empowered to participate, that nurtured anxieties about a potential asymmetric functioning of the European Union with regard to the new Member States after enlargement. If we have a look at these concerns, different levels of political and legal integration have to be regarded, in the first place distinctively the formal and the informal level of the European Union s functioning. Regarding the formal level of changing the institutional composition and the decision-making and voting rules in the treaties the readings are rather optimistic insofar as the formal adjustments are appraised to enable an equal participation and cooperation between old and new member states (see Bertea 2005, Dangerfield 2006, Ellison 2005, Osajda 2006). However, this is only one side of the medal especially acknowledging the Unions rather informal and sub-institutional mode of functioning in policy-formation and law-making the informal level is quite crucial in twofold distinct areas. Firstly, considering the inter- and intra-institutional will-formation, far more than procedural cornerstone-rules matter; decisive in this respect are the informal techniques and practices of cooperation, deliberation and bargaining, so that decision-making processes are highly a result of a complex web of negotiating games between institutional (and non-institutional) actors, also relying on settled forms of coalition- and block-building. Apart from worries about the decision-making efficiency in general (esp. in the Council and the Commission) worries about the cooperative scheme and the equal footing of the new actors within these games were articulated. Now again, this situation might be interpreted as of just being a question of (elite) socialisation in order to adapt the traditional rules of the game and fit in smoothly. Yet, it might also be a starting point to sensitise for potential

14 14 structural discrimination, for the need of enabling reciprocal learning-processes and for needs of structuring these processes more formally and to render them more transparent 6. This awareness can be reinforced by keeping in mind a second aspect of the informal nature of the Union s functioning. The institutional infrastructure of the European Union is composed of the hard treaty-institutions, of institutions/sub-institutions established through delegation (committees and agencies, for instance), and of soft institutional configurations like issue-related expert groups and lobbying actors as well as of interest groups of different kinds (public- and common-interest groups, actors from social, environmental and civil-rights movements, NGOs etc.) that influence the decision-shaping process through different channels. Embedded in the broader contexts of the constitutionalisation-debates, esp. those relating to the democratic deficits of the European Union, efforts of institutional reform towards accountability, transparency and democratic quality lead to a strengthening of information- and access-rights on the one hand, to secondary law-production relating to transparency and openness, and to a set of soft legal instruments like best-practice declarations, codes of conduct, Whitebooks and so on - mostly inspired by the upcoming discourses about Good Governance (see XX). And indeed: Since the late 1990s there has been an enormous rise in participation of external actors at different levels of the law-making process and in different institutional settings. The problem still has ever been that these forms of participation are not structured by transparent and formal procedures allowing for active intervention by those who are concerned. Access is highly a question of resources and organisation-power, and of perception on the side of the institutional actors who decide upon who is heard. So in practice, we are frequently dealing with an ad-hoc inclusion and a biased representation (see Tömmel XX), but not with equal access, or an equal right to be heard. To our mind in fact, these processes pose serious normative, procedural and practical problems; because in such informal configurations, structural discrimination, i.e., 6 In this respect obviously further empirical studies are needed to get to a balanced evaluation of the institutional practices and esp. of the quality of deliberation-processes. Although we can at present not rely on elaborated empirical insights, we can articulate a kind of scepticism about the (normative) quality of the institutional practices underlying the notion of transparent process of justification (see above). Apart from that, a quick look at actual institutional compositions might well reveal a situation that is open to asymmetries and not just resolvable by socialisation. The European Courts, for instance, have in plain numeric terms been stocked up in proportional adequacy. At second sight, two figures are quite striking: In relation to the Advocates General at the ECJ (which is in substantial terms a crucial position) as well as in relation to the heads of chambers at the Court of First Instance (which is in hierarchical terms a position that matters) there is an obviously unproportional relation between old and new judges.

15 15 hierarchies and asymmetries are in a way invisibilised. Regarding enlargement, i.e., regarding the integration of a new set of actors manoeuvring in these processes without disposing yet of the institutional experience and knowledge but in the need to canalise and integrate various concerns and interests, it does not seem to be too far fetched to imagine them in a potential asymmetric situation. This potentiality of structural asymmetry is, however as we have tried to point out, not genuinely an effect of enlargement but rather a constitutive attribute of European politics in its present shape. Profitable in general normative terms and surely in practical terms for the new member states would be to render these processes more transparent and procedurally more formalised: By these means the need to argue for and to justify inequality, hierarchy and power-asymmetries would rise and processes of justification trying to figure out solutions acceptable to all those concerned could be furnished Concepts of law The qualification of the Union as a Community of law (Rechtsgemeinschaft) and the notions of the idea of integration through law highlight the status of law as a constitutive principle of the Unions architecture and functioning as well as its practical relevance in guaranteeing the proper functioning of the integration-process (see Graig/de Burca 1999). That is to say, the functioning of the European integration project is based on the rule of law on the one hand, on legal and juridical instruments of policy-formation and -implementation, and highly relies on a compound scheme of legal enforcement integrating national judiciaries at all levels of the legal systems. In the course of the European judicial attempts to enforce the uniform application of European law there have always been conflicts about the status of European law and, at the other side of the medal, conflicts about the integrity of the national constitutional systems and about competence-allocations (esp. with regard to, firstly, the role of individual and human rights, and, secondly, of democratic rights and organisational principles). And as we can observe right now, there are quite similar disputes between the ECJ and the highest and constitutional courts of the new member states as have been taking place since the 1970s between the ECJ and the German and Italian constitutional as well as the French higher courts (see Albi 2004, Capeta 2005 and 2006, Kowalik-Banczyk 2005, Kühn 2004 and 2005, Lefevre 2004).

16 16 Apart from ever reoccurring conflicts about legal hierarchies, equal protection-spheres, legitimacy and competence-competences the European judiciaries successfully managed to establish the principle of indirect effect (see Graig 1997, Hartkamp et al. 2004) and to commit national judges to their role of being European judges at the same time so that lower judiciaries not only practiced a rather pro-european interpretation of national law but even tried to enforce European law ignoring national legal hierarchies and bypassing the higher/constitutional national courts. This situation, however, seems to have changed radically within an enlarged Union, some observers go as far as to see the compound management of legal integration at stake. But let us have a look at the circumstances. 1. The so-called principle of indirect effect is related to the function of national judiciaries to enforce the uniform application of European law. Beside the main procedural remedy of preliminary rulings national judges are expected to interpret domestic law in conformity with Community law 7. According to the principle of indirect effect which formulates an interpretative rule, national courts are demanded not only to take European law into consideration when they interpret domestic legal provisions, but to interpret these provisions in the light of European law, i.e. as close as possible to European law, and to set aside provisions that are incompatible with European law (see cases XX). One consequence of this duty is in a way that it modifies the canon of interpretation, hierarchies of interpretative considerations and methodological understandings. Courts are in fact asked to depart from the textual base of positive law and to neglect legislative intent insofar as it does not conform to what EU-law requires from the domestic legislature. In the line of the ECJ s own interpretative canon which is very much a mixture of teleological, purposive and functional reasoning (see Auberger/Hitzel-Cassagnes 2005, Hitzel-Cassagnes 2005), in this light considering different legal sources and levels of law-generation and adjudication in comparative perspective national judiciaries are very much induced to use teleological methods in order to arrive at conform results. This implies a certain measure of de-formalisation with respect to the methodological corpus of interpretation and diversification of the available techniques of interpretation so as to arrive at the results conform to Community rule. 7 The enunciation of interpretative rules was surely inspired by the necessity to enforce supremacy and direct effect as dogmatic cornerstones and to guarantee the uniform interpretation of European law and its efficiency, to a certain degree it responds to the lack of a horizontal direct effect of European law, esp. directives.

17 17 2. By requiring national courts, esp. lower courts, to question and if necessary to adjust the outcomes of domestic legislation, the ECJ has not just influenced the interpretative legal cultures (see Dann 2005, Bogdandy 2003, Heutger 2003 and 2004, Lefevre 2004) of the legal systems but also the role and functioning of national judiciaries, their embedding in the legal hierarchy as well as their involvement in political processes. Identifying tendencies of judicial empowerment regarding the lower courts, in general further judicialisation of politics on the one hand and some kind of Politisation of law and of the judiciary on the other hand are but different ways of capturing a phenomenon one could describe as a transformation of the status of judiciaries. Within the European legal system(s) judiciaries are much more taking part in institutional engineering which implies an altogether altered allocation of functions between judiciary and legislature, a different relation between constitutional and lower courts, and consequently a rise of political and social responsibility. Both aspects, the adoption of a politicised role of being a European judge and the adaptation of discursive techniques effectuating legal integration, are seen to be crucial for the functioning of the European Union. At the same time, regarding the functioning of the legal systems of the new member states, these features are rather absent, so that the question is whether there might be a structural incompatibility. The potential incompatibilities can be regarded at three different levels, in relation to an interpretative, an institutional and a legal divide. Firstly, at the bottom line of what might be called legal culture, it has been marked that the legal tradition of most of the new member states do not see interpretation as an important part of judicial work, at least not in terms of creative interpretation (see Kühn 2004 and 2005). The general understanding of interpretation is predominantly a positivist, literalist and textualist reading of law, oriented towards mechanical subsuming, and in this respect irreconcilably in conflict with the European interpretative scheme 8. Compared with the practices of the European Courts four differences can be depicted: Teleological and purposive aspects are rather neglected; there are hardly recourses to abstract legal principles and to reasons in the light of principles (rule of law, proportionality etc.); precedents and case law is not systematically seen as a binding and/or persuading source of law 9 ; and fi- 8 It has several times been pointed out that both, legal education and legal practices rely on positivist, simplistic and a parochial Savigny kind of reasoning, in the sphere of constitutional and administrative law as well as in the sphere of private law (see for the latter aspect Manko 2005). 9 This is among others an aspect that helps understanding the conflicts between constitutional and lower courts, see for instance Kühn 2004, Albi 2004 and Capeta 2006).

18 18 nally, the style of reasoning is rather minimalist and quite modest in explaining and justifying decisions which might be read as a hint to an altogether dogmatic style of interpretation, neither open nor oriented to dialogues and discursive reasoning. This background might also help to explain the dominant perception of harmonisation in formal terms, i.e., as a formal process of enactment of legal acts containing provisions that are the same as EU legal acts 10. A second difference which is very much related to the positivist and formalistic notions of law concerns the institutional self-interpretation and role within the political system. In this context a strong and strict reliance on a rather simplistic doctrine of the separation of powers still seems to be hegemonic. In consequence, the starting point for the judicial self-interpretation is a vision of the judiciary as an institution subordinate and secondary to the (national) legislature which is seen as the sole authority of binding law-making. This rather formalist and static view of the separation of powers precludes the idea that judges share political and societal responsibility. Capeta (2006) for instance has argued in this way: The separation of powers doctrine shields judges from social responsibility, so for her, it is highly questionable whether judges are beyond that background motivated by the possibility of their own empowerment. But there is another consequence which is of relevance, especially that law relies on a strong legal hierarchy within a framework of a closed legal system, and that this hierarchy is reproduced at the institutional level regarding the competence-allocation between constitutional and lower courts. So, at the end of the day, it seems quite obvious why it is so difficult for the judiciaries of the new member states (at least for most of the lower judiciaries) to apply and interpret European Law (probably rather International Law in general), i.e. different sources of law including soft legal acts and case-law (Kühn 2004: 552). At the same time it helps understanding the difficulties of introducing a system of decentralised judicial review in order to apply and enforce European Law. No doubt, all these conceptual and institutional attitudes influence the (third) legal level in a narrower sense. The fixation on static state law, a dichotomist vision of validity, and the formalistic orientation be it the handling of constitutional concepts (individual rights, democracy, rule of law) or constitutional doctrines (separation of powers, hierarchies of norms, public-private divide) does not only prejudge the general institu- 10 Most authors explain this status quo as a result of the socialist legacy not only retaining but strengthening a formalist and positivist approach to law relying on a strict differentiation between binding and non-binding sources of law that characterised Europe following the codifications of law in the 19th century.

19 19 tional role and function but also the practice of concrete adjudication. This, of course, is rather a substantial question regarding the possibility and effectiveness of judicial remedies and the Rechtswahrungsfunktion of courts. Although we cannot deal with these substantial issues in this context we would like to hint at two phenomena that might lead to the conclusion, that the present system of judicial remedy is rather deficient in term of protecting individual rights and interests: Firstly, there are rather obstinate and persistent conflicts between constitutional and lower courts regarding the interpretation and enforcement of European law (whereas, most of the time, the constitutional courts are the pro-european and anti-formalist parties); Secondly, individual as well as public- and corporate-interest plaintiffs try to bypass the national system of judicial review, searching for judicial remedies at the European level for instance (esp. the CfI, ECJ as well as the ECHR) or searching for conflict resolution at non-state extra judicial institutions like tribunals, arbitration bodies etc. (see XX). 4. Conclusion Resuming the different kinds of difficulties associated with the functioning of an enlarged Union and the processes of (re)constitutionalisation, only the final point questioning the legal compatibility of the new member states and the European constitutional system might lead to quite a pessimistic view with regard to the prospects of integration. The other aspects be it related to substantial conflicts about the status and meaning of the acquis, to plurality and cultural differences or to institutional settings and participation-modes were not able to raise serious scepticism about potential structural incompatibles. At closer look, the situation somewhat revealed either that similar kind of problems have always been constitutive for the development of the European Community/Union due to their very nature of being principled conflicts about the nature and the scope of integration, or that the problems are attributable not genuinely to the new member states but to the European Union as a polity, questioning its functioning and the modes of institutional processes. In this context we have pleaded for a problem-solving mode that is aiming at open and symmetric learning processes, and that is, at the same time, stepping back from the notions of prefigured constitutionalisation and one-sided adaptation. Instead, the inclusion and participation of potential new voices should be taken seriously, and as a chance for reflexive re-assurance on the one hand and as a change for mutual and reciprocal learning-processes on the other.