Self-Constitution of Europe: Symbols, Politics and Law

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1 Self-Constitution of Europe: Symbols, Politics and Law One day conference, Cardiff Law School, Friday 14th June 2013 Programme Welcome refreshments and introduction 9:00-9:15 Session I: European Constitutionalism in Global Societal Self- Constitutionalizations 9:15-10:45 The European Constitution and the peuple introuvable: No longer sui generis? Chris Thornhill, Glasgow University Early inquiries into the constitutional form of the EU struggled to find obvious analogues for it in existing constitutional traditions. These analyses concluded, accordingly, that it should be designated as a legal or constitutional order sui generis. At a specifically constitutional level, this was largely due to the lack of an obvious European pouvoir constituant, acting as an external or extra-juridical source of legitimacy for the emerging supra-national polity. The search for a constituent power, standing outside the constitutionalizing functions of European and national courts, has remained a recurrent concern in constitutional research addressing the EU. This paper contends, however, that the model of post-, multi-, a-, or even auto-constituent constitutionalism characteristic of the EU should not be viewed as a unique or stand-alone phenomenon. In fact, it traces a pattern of transnational constitutionalism, which is currently becoming increasingly consolidated as a general mechanism for global systemic formation. EU Constitutionalism and Societal Constitutional Claims: A Political Sociological Approach to Constitutional Politics Paul Blokker, University of Trento The original constitutional moment of the early 2000s has faltered not least due to a popular rejection of the European Draft Constitution in the referenda held in France and the Netherlands in While much investigation has gone into reasons behind rejection and the wider adverse (political) climate that informed the rejection, there is little sociological analysis available regarding positive, alternative constitutional projects that are constructed by transnational movements. The paper will discuss constitution-making in the EU context from a theoretical perspective, contrasting different understandings of the process of constitution-making, the constitutional subjects involved, and the nature of the constitutional product (including legal, political, societal and democratic understandings of constitutionalism). In a second step, the paper will analyze a number of constitutional claims that have emerged in the transnational public arena, endorsed by transnational pro-democracy movements. 1

2 Constitutionalism of European Society and it Functional Differentiation Jiří Přibáň, Cardiff University The current state of the EU, its policies, crises and public images and self-reflections, are specific examples of functionally differentiated supra-national society politically searching and legally constituting its minimum sense of togetherness and common destiny and looking for the art of common living at an unprecedented scale beyond sacred bonds of the modern nation state. In the absence of EU democratic statehood and constitutional polity, technocratic governance paradoxically remains a major force behind the evolution and self-reflection of European polity and continues to facilitate its both legitimation and delegitimation. The project of the ever closer Union, therefore, needs to be reconceptualized as the ever more functionally differentiated Union. Recent semantic inventions, such as constitutionalism without constituent power, executive federalism, multi-level governance and post-sovereign community, subsequently need to be critically reassessed against persistence of the political semantics of democratic representation, statehood and popular sovereignty. Instead of permanently re-designing the Union as political organization of alternatives to statehood or statehood in waiting, the Union has to be conceptualized as an organizational framework facilitating the constitution of European society by functional differentiation. Coffee break 10:45-11:00 Session II: Europe s Constitutional Pluralism 11:00-12:00 Legal Obligation Beyond the State: can the idea of a Principled Monism ground constitutional pluralism? George Pavlakos, University ofantwerp In the burgeoning literature on European constitutionalism, there has emerged a controversy around the meaning of pluralism. While an adequate explanation of the current practice and structure of EU law seems to involve the idea of pluralism, there is little agreement amongst scholars about the content and extent of the kind of pluralism at work. Part of the lack of agreement stems from another kind of pluralism: different authors set out to explain different aspects of the problem, and at that focusing on different explanatory tasks. In this paper I set out to tackle the question of pluralism as one about the grounds of legal obligation. My hope is that focusing on that question I will be able to employ something akin to Ockham s razor with a view to clearing the conceptual field from many a distinction that is blurring our understanding of the philosophical work that pluralism does for our understanding of the EU legal order. On the proposed reading, pluralism does not feature amongst the grounds of legal obligation but only on the level of implementing/enforcing legal obligations. Roughly put, what grounds legal obligations are such principles that may justify any instance of directing actions of people through institutions. Yet the enforcement or implementation of those principles does not follow the standard picture about the hierarchy of legal orders: basically any legal order that, for contingent reasons, is better placed in upholding the set of principles, which necessarily hold for all, can claim for itself hierarchical superiority. In conclusion, pluralism in the hierarchy of legal orders is itself grounded in a monism of principles. 2

3 EU Constitution-making beyond the EU Petr Agha, Centre for Law and Public Affairs, Academy of Sciences of the Czech Republic If we need to reconsider our ideas about EU Constitution-making, what does this mean for the idea(l)s that have guided the movement in the first place, the movement from the local (particular) to the European (universal), from government (politics) to governance (principles)? And how do these ideals fuel new ways of thinking about what it might mean to constitute a community of States, one that seeks to constituionalize itself? What role do subaltern legal orders and the local cultures they represent have to play in retaining a productive tension between constitutive people's organization and new constitutional dispensations/insitutions? Lastly what role does EU constitution-making play is keeping open ever new possibilities of the foundational values the process of EU constitution-making was based on (beyond institutions)? One might well ask, what does the proces of EU constitution-making do with the foundational values of domestic legal systems and by extension the very (foundational) idea of EU constitution-making? Session III: EU Constitutionalism and Justice 12:00-13:00 Negative Constitutionalism? Dimitry Kochenov, University of Groningen In the absence of an idea of justice that would go beyond the text of the Treaties, outside of the sphere of strictly economic regulation, the European Union, through the operation of its law and the establishment of the Internal Market and EU citizenship, mobilises the nationals of the Member States disappointed with the outcomes of the national political process without offering a fullfledged political alternative. Although this mode of operation, which allows the Union on a growing number of occasions to intervene in the interests of those who are not happy with national-level regulation de facto improves many lives, it does not lead to a coherent development of a double constitutional system to include both national and supranational levels. Member States stand constantly corrected by the Union, but also use the latter as a scapegoat for own unpopular policies. The system of credit for successes and responsibility for missteps is profoundly disrupted. The paper brands the current status quo as negative constitutionalism and focuses on its strong and, crucially, weak sides. Negative constitutionalism carries with it purely corrective symbolism and falls short, by virtue of its very design and operation, of empowering the Union to make a definitive step towards justice, which would focus on the plight of all citizens, boasting a positive side. The latter should necessarily be divorced from the market ideology, making the Union turn to the great promise of the first decade of integration: peace, dignity and prosperity for all. Chessmate Beyond the Corner: Why Judicial Networks Can Jeopardize the European Rule of Law? Daniela Piana, University of Bologna The Rule of Law is unquestionably made of two parts: the rule and the law. For trivial this remind sounds, it recalls the need of an homogenous ruling based on equal laws holding erga omnes in the entire territory of a State. Citizens should not only objectively offered with full garanties of equal right enforcement - since a nomos that varies over a closed territory of a State does not look really like a regulative order - but also should they be provided with reliable expectations about the uniformity of the legal order they benefit from as right holders. 3

4 For law is not applied in vacuum but its enforcement heavely depends on the way justice and security institutions daily work factors such as court administration, prosecution accountability, access to justice play a key role either as facilitating or as undermining conditions vis-à-vis the actual implementation of this institutional ideal that we all name "rule of law". At the sunset of the XX century the European institutions which are most of all engaged in the promotion of the rule of law made a move toward a new or newly taylored policy sector: the promotion of the quality of justice. In doing so their action started to impinge upon the national models of court administration, of judicial training, of judicial evaluation, etc. in short upon the largest part of those dimensions that are coupled into a general model of judicial governance. Since the supranational institutions are not vested with any competence in this realm they can not help circumventing the format limits set up by their constitutional rules. Hence a comprehensive process of standard setting has been launched. Despite being considered not harmful, a set of standards should be held as an opportunity for national and sub-national actors to introduce in the judicial institutions standard-based or standard compliant reforms. Since, a huge and largely unknown number of micro reforms have been adopted in the judicial offices in all EU member States. To be sure these reforms use the standard as a leverage but do not aim at create uniform application of it. In fact no mechanisms of monitoring is enacted a posteriori. A fresh and unveiling analysis about the effectiveness of these standards to ensure an equal level of rights enforcement in the EU should be carried out. Lunch break 13:00-14:00 Session IV: EU Governance and Constitutionalism 14:00-15:00 Constitutionalising expertise: from agencies to impact assessments Stijn Smismans, Cardiff Law School Constitutional theory builds bridges to democratic theory and to sociological concepts as identity and citizenship. However, it is focused on democratic electoral representation, and aggregating interests, but has neglected the question of the nature of expertise in policy-making. In fact, political science and regulatory literature has increasingly paid attention to expertise in policy-making as policy-makers themselves have developed discourses and procedures aiming at sound evidence and scientific expertise. In the EU, the debate on the place of scientific expertise and sound evidence has emerged from the mid 1990s onwards and been intensified particularly since the 2000s. The debate has attracted the attention of both policy actors and political scientists. The central question was one of institutional design and focused particularly on whether the creation of European agencies may ensure better use of scientific expertise in policy-making than comitology procedures, which had led to some disastrous policy outcomes, e.g. in the context of the BSE crisis, as decision-making was biased towards the interests of some Member States, rather than based on sound evidence. However, although the debate on European agencies has strongly been influenced by the example of agency governance in the US, European agencies tend to be non-regulatory, i.e. executive or information agencies, as opposed to their American counterparts. The question of sound evidence 4

5 appeared to be a topic mainly picked up by administrative lawyers, and neglected by constitutional and legal theorists. However, the European legislative level has not escaped the call for sound evidence and scientific expertise. While regulatory agencies remain an exception in the European institutional set-up, more recently the objective of sounds evidence and scientific expertise have been brought to the legislative level by way of the instrument of impact assessments. We argue that the arguments underlying the creation of European agencies are very similar to those underlying the use of impact assessments, with the latter aiming at extending the same logic to the legislative level. This paper is built up in three sections. We will first analyse how constitutionalism and legal theory has neglected the issue of expertise in policy-making, while we argue it is a central question of constitutional design. In the second section we will briefly recall the debate on European agencies and explain its approach to the question of expertise. We will explain why the debate didn t but should figure as an issue of constitutionalism. The third section looks more closely to the role of impact assessments, addresses the relationship with the agency debate, and analysis more closely its challenges in terms of constitutionalism. Constitutionalizing Intermediaries: Corporatism, Neo-Corporatism and Governance Poul F. Kjaer, Department of Business and Politics, Copenhagen Business School The strong reliance on and systemic importance of various sorts of governance mechanisms within the European Union is often considered as a central barrier for its constitutionalization. A central argument advanced in this paper is however that the existence of strong inter-mediate structures located in-between a political system and the rest of society is not a phenomenon which is particular of the European Union. On the contrary, such structures are also an essential component of nation state institutional set-ups as expressed in the emergence of corporatist and later on neo-corporatist frameworks throughout Europe from the mid-19th century onwards. Adopting a historical perspective the paper examines similarities and differences between corporatist, neo-corporatist and governance institutional set-ups. This is done on the basis of the hypothesis that the three types of institutional formations fulfil identical dual functions under changed structural conditions: The internal stabilisation of specific segments of society and the enabling of transfers of social components, such as political decisions, legal acts, economic resources and scientific knowledge, between different segments of society. The legal stabilization of this dual internal/external function is furthermore seen as the central function of constitutions. Coffee Break 15:00-15:15 Session V: Crisis of governance, crisis of constitutionalism? 15:15-16:15 EU constitutionalism, or death by governance? Michelle Everson, Birkbeck College, University of London This contribution will investigate in the light of financial and sovereign debt crisis a negative trend in EU governance structures which threatens to undermine the EU constitutionalisation project. New governance structures designed to regulate Europe s financial services markets and an emerging banking union might be an immediate response to crisis. At the same time, however, they reduce technocratic structures to their reduction ad absurdum. Governance in the EU is now 5

6 strangling the growth of political community within Europe. This trend must be combated as matter of urgency. Constitutions at the Semi-Periphery: The Case of Portugal Pierre Guibentif, ISCTE-IUL, Lisbon As a consequence of the crisis measures inspired by the advices of the EU-IMF Troika that currently monitors the country are soon to be taken by the Portuguese government, aiming at a thorough transformation of the State. The announcement of these measures has sparked an intense public debate. One important topic is the constitution. Are the measures planned compatible with it? But also, more radically: is it still a valid framework now that European guidelines appear to be the dominant reference? Recent theoretical proposals on societal constitutionalism in times of globalization are of great help in the analysis of this debate, of its context, and of its possible impact. Conversely this analysis draws the attention on questions that could deserve a broader development in the current theoretical discussion. Two of them are: What is the impact of the political inequalities between EU-Member States on the status of the different national constitutions? And what is the constitutional locus of individuals? This question is particularly relevant where individuals gained political capabilities just a few decades ago, and right now are loosing a significant part of their economic capabilities. Coffee break 16:15-16:30 Session VI: Legitimacy of EU Constitutionalism 16:30-18:00 The Beheading of the Legislative Power: The European Crisis - Paradoxes of Constitutionalizing Democratic Capitalism Hauke Brunkhorst, Universität Flensburg The European Union today finds itself in the midst of its greatest crisis. The crisis is due not only to one of the greatest breakdowns in the history of the global economy, but also to the fascinating internal evolution of the European constitution since its beginning, shortly after World War II. Parallel to the growth of constitutional law, latent legitimation problems began to arise and grow cumulatively. However, once the big global banks, corporations and hedge-funds began a concerted attack on the European periphery, the long lasting neoliberal turn from democratic capitalism to capitalist democracy has reached whole Europe, and the legitimation crisis becomes manifest. Europe the technocractic do-gooder: trying to reach the heart via the wallet Gareth Davies, Vrije Universiteit Amsterdam The EU faces a social legitimacy challenge which results in part from its technocratic orientation. Its law lacks expressive and symbolic weight, and citizens do not feel recognised in its policies. Solutions are often put forward in terms of more politics within the EU, but politics only works if the possibilty for political choices exists. The thesis of this paper is that political freedom within the EU is constrained by the nature of EU powers - its limitation to attributed functional competences. 6

7 This gives it a narrow instrumental orientation, which is essential for constitutional control and protection of Member State autonomy, but also means that it cannot offer a breadth of vision which could engage citizens or provide politicians with room for choice. The power of the EU exceeds its constitutionally constrained legislative imagination. A body hard-wired to be a narrow expert agency has become the de facto regulator of social organisation as a whole. The Future of European Democracy William Outhwaite, Newcastle University Given that we have democracy of a kind in most of Europe, and that there seems a reasonable prospect of its survival in, and extension to the rest of, the sub-continent, my question is whether and to what extent we also need European-level democratic politics. This paper examines the current state and prospects of democratic politics in the European Union. Session VII: Concluding Comments and Discussion 18:00-18:20 Dinner, 7pm, Park Plaza Hotel 7

REGIONAL POLICY MAKING AND SME

Ivana Mandysová REGIONAL POLICY MAKING AND SME Univerzita Pardubice, Fakulta ekonomicko-správní, Ústav veřejné správy a práva Abstract: The purpose of this article is to analyse the possibility for SME