THE OTHER CONSTITUTION The White Paper on Governance and judicial review Hans Sundberg Joxerramon Bengoetxea
The Other Constitution • a conceptual problem: • constitution as text, • constitution as process, • constitution as a shared concept • the coming constitution • the Convention • the constitutional treaty • the IGC • the existing constitution • the economic constitution • the re-construction of the legal order by the ECJ • the "other" constitutions • the Charter of Fundamental Rights • the White Paper on Governance • even the Lisbon process
Governance - a working definition European Governance is understood as rules, processes and behaviour that affect the way in which powers are exercised at European level, particularly as regards openness, participation, accountability, effectiveness and coherence http://www.europa.eu.int/comm/governance/
The White Paper on Governance: why is it constitutional? • WP is not the Commission's draft constitution (Penelope) • introduced as a strategic document at a strategic time right between Nice and Laeken. Proliferation of IGCs since Maastricht. • Who defends the Commission's interests? • its main aim is constitutional: to preserve the community method and thus ensure supranationalism • governance is a constitutional issue: what institutions do with the power CITIZENS have vested upon them
The Community Method: the triumph of supranationality over intergovernmentalism • the Commission monopoly of initiative • the adoption of legislative and budgetary acts by Council and Parliament • implementation by the Member States and by individuals; monitoring of implementation of Community law and policy at domestic level by the Commission • the control of legality by the Court of Justice and domestic courts
Main points of the WP-1: betweeneffectivenessandacceptability • success of integration, completion of internal market, give meaning to citizenship • Need for a clear vision and shared principes in a complex and polycentric institutional setting: diversity of administrations and actors: who does what and how much (subsidiarity as a precursor of governance) • multiplicity of stakeholders: state, regional, local administrations, MS and EU institutions, the international community, NGOs, business, lobbies, social actors, experts, mass media, citizens • deregulation and glocalisation!
Main points of the WP-2the principles of governance • openness (transparency, accessible language) • participation of civil society (enhanced dialogue, improved consultation, inclusive approach from conception to implementation and evaluation) • accountability (responsibility, clarity of roles and competences) • effectiveness of policy (clarity of objectives, exchange of good practice, impact assessment) • coherence (mainstreaming of policies and action, political leadership and institutional responsibility in a complex system)
Main points -3 • Is there a legitimacy crisis? democracy and rule of law, transparency, participation, accountability, control and quality of practice at all levels • Inclusiveness and participation: Civil Society – experts, stakeholders - Regions – tripartite contracts, Committee of the Regions - and social actors – Social Dialogue. At which level do we find the demos composed of citizens providing legitimacy? • Choose law or policy: are rights involved? access to justice, standing and judicial review, • strategic choice of legal instrument: how much regulation, self-regulation and co-regulation, framework laws, quality of legislation, • strategic choice of policy tools: Voluntary Codes of Conduct, network based initiatives, global ethical norms, educational, information campagins, OMC with indicators best practice and peer review, funding and incentives
judicial function • WP makes little reference to ECJ • Court ensures rule of law: legal norms, official law-making sources • judicial dispute resolution can be a deliberate choice in the palette of law and policy making options • many of the principles of governance are hardly justiciable or amenable to the discourse of rights • BUT rule of law affects a part of the whole picture of governance • Court does not control policy instruments and soft law • even subsidiarity, loyalty and coordination resist judicial dipute resolution • no judicial protection: what protection? international ethical audit, ombudsmen (network of ombudsmen), petitions and parliaments (network of parliaments), Committee of Regions and ECOSOC
Social Dialogue • Created by agreement between 3 major cross-industry organisations before "Maastricht IGC" • First Protocol and Agreement, now in the Treaty • No changes in Convention proposal
Article 138 EC • 1. The Commission shall have the task of promoting the consultation of management and labour at Community level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties. • 2. To this end, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Community action. • 3. If, after such consultation, the Commission considers Community action advisable, it shall consult management and labour on the content of the envisaged proposal. Management and labour shall forward to the Commission an opinion or, where appropriate, a recommendation. • 4. On the occasion of such consultation, management and labour may inform the Commission of their wish to initiate the process provided for in Article 139. The duration of the procedure shall not exceed nine months, unless the management and labour concerned and the Commission decide jointly to extend it.
Article 139 EC • 1. Should management and labour so desire, the dialogue between them at Community level may lead to contractual relations, including agreements.2. Agreements concluded at Community level shall be implemented either in accordance with the procedures and practices specific to management and labour and the Member States or, in matters covered by Article 137, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission.The Council shall act by qualified majority, except where the agreement in question contains one or more provisions relating to one of the areas for which unanimity is required pursuant to Article 137(2). In that case, it shall act unanimously.
Social partners • UNICE (Union of Industrial and Employers’ Confederation of Europe) • CEEP (European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interests) • ETUC (European Trade Union Confederation) • UEAPME (European Association of Craft Small and Medium-sized Enterprises or Union Européenne de l'Artisanat et des Petites et Moyennes Entreprises)
T-135/96 UEAPME v Council • Two lines of argumentation (apart from the usual direct and individual concern arguments)- whether UEAPME had a right as such to negotiate- whether its participation was necessary to ensure representativity • assessment of representativity conducted within the admissibility test (Plaumann) • Alternative approach C-70/88 EP v Council, whether UEAPME:s prerogative as a legislator had been disregarded
Social Dialogue and Governance • Formulation shared between Comm and Social Partners • Formalisation primarily by SP, Comm role secondary • Implementation depend on instrument – traditional Cty labour law or by signatories in accordance with national practices • Evaluation – SP reserved right to evaluate in agreements concluded • General character – between tri-partite IR at Cty level and self-regulatory system
Conclusion • WP affect potentially every stage and all aspects of governance • accountability and control (judicial review) If the citizens have a problem, what remedy is there available for them • as regards the Commission: who defends it?
Conclusion 2 • Karl-Heinz Ladeur - The Changing Role of the Private in Public Governance: "Recently this model has been challenged by new informal types of co-operation between private and public actors which develop beyond the forms of the welfare state model, and which have not found adequate institutional forms"
Contact us • Please send comments or questions to • Jose.Bengoetxea@curia.eu.int • email@example.com • Article to be published in Europarättslig tidskrift in late spring 2004