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The concept of ‘civil society’ has been rediscovered in contemporary discourses concerning the relationship between democracy and governance. This paper analyses this rediscovery in the more specific context of the European Commission’s 2001 White Paper on European Governance. However, processes of transnationalisation, governmentalisation and autonomisation may compromise much of the potential of ‘European civil society’ as an intermediating sphere of social action. By reinforcing these processes, the White Paper undermines the normative claims made for a civil society premised upon the voluntary nature of its associative forms and its distinctive open, communicative and deliberative rationality. [ABSTRACT FROM AUTHOR]

The paper explores the evolution of private powers in the digital landscape, developing a quadrangular systematisation of such a phenomenon based on four main aspects: space, values, (private) actors, and (digital) constitutional remedies. Taking a trans‐Atlantic approach, the paper shows how these categories, typical of constitutionalism, apply to the context of the Internet and of new digital technologies both in the United States and in Europe. On the one hand, the United States has up to now maintained the supremacy of the notorious Section 230 of the Communications Decency Act. On the other hand, European legislation has undergone a significant change, moving from a phase of digital liberalism, of which the 2000 E‐Commerce Directive is the emblem, towards a new era of digital constitutionalism, passing through the age of judicial activism of European courts. In this sense, Europe has increasingly attempted to introduce limits to private (digital) powers, with a view to better protect and enforce (also horizontally) users' fundamental rights. Additionally, the evolution of digital constitutionalism, from a vertical‐sectoral approach to a horizontal and procedure‐based one, significantly showcased by the recent Digital Services Package, is underscored, signalling the recent movement of the EU into its second phase of digital constitutionalism. In this respect, the paper argues that the great benefit of stressing the procedural dimension, which may be defined as a European application of "due (data) process" to the relationship between individuals and private powers, is that it is potentially able to help consolidate a (necessary) trans‐Atlantic bridge. [ABSTRACT FROM AUTHOR]

This paper focuses on Habermas's notion of cosmopolitan democracy. Reconfiguring the basic ideas of democracy in postnational terms is inevitable if social and political integration is to succeed on a supranational level. In exploring Habermas's ideas, we draw on Rancière, whose thought stands in a complex relationship to Habermas. On the one hand, Rancière largely shares Habermas's diagnosis of the present. Both bemoan the erosion of the political caused by post‐democracy and censure the rise of right‐wing extremism in Western societies. On the other hand, and in contrast to Habermas, Rancière holds that these problems should be addressed not primarily by strengthening political institutions and reaching a consensus between conflicting parties, but by rethinking conflict and resistance. We show that Habermas's and Rancière's propositions can be productively brought in dialogue by focusing on the paradigmatic types of political subjectivity involved in their accounts: the citizen (Habermas) and the plebeian (Rancière). [ABSTRACT FROM AUTHOR]

The division of responsibilities in the regulation and supervision of financial markets between 'public' regulatory agencies and 'private' market actors is not fixed; it has radically changed across time. This paper argues that the financial crisis of 2007-2009 has triggered the latest turn in the 'public-private' divide in the regulation of finance. Focusing in particular on the extensive reforms that have been introduced in the regulation of over-the-counter derivatives, credit rating agencies and hedge funds in Europe and internationally, this paper argues that the response to the financial crisis has brought to a halt the reliance on self-regulation and market discipline as primary regulatory mechanisms that had characterised the approach of regulators prior to the crisis. However, while public regulatory agencies have consolidated in their hands the authority to regulate and oversee markets previously left outside their regulatory oversight, the content and the purpose of their regulatory intervention continue to present significant element of continuity with the pre-crisis regulatory model. [ABSTRACT FROM AUTHOR]

This paper seeks to reveal the institutional interests of the Council of Ministers, the European Parliament and the Commission in the comitology system. This is done by an investigation of the 2006 comitology reform, which introduced the regulatory procedure with scrutiny. This reform was the result of developments in four areas: the Lamfalussy reform in the area of financial regulation; the controversial use of comitology in the area of GMOs, food safety and the environment; the failed Constitutional Treaty; and the amending of the 1999 comitology decision. The analysis shows that the reform was the result of a two-dimensional constitutional struggle. The first dimension concerns the relative supervisory position of the two legislative actors, the Council and the European Parliament. The second dimension concerns the relationship between the legislative and the executive branch of the EU system. In theoretical terms, the analysis demonstrates an example of T.M. Moe's 'politics of structural choice'. The paper ends by drawing lessons for the negotiations on the new comitology system following the Lisbon Treaty. [ABSTRACT FROM AUTHOR]

The word 'governance' has become an increasingly central policy motif in the European Union and elsewhere yet its meanings are ambiguous and often poorly understood. This article examines the genealogy of that concept focusing in particular on the European Commission's claim to have developed a new, more open and progressive model of 'European governance'. The paper is set out in four steps. The first analyses the European Commission's claims for 'governance' as a concept integral to its new vision for Europe. The second interrogates some of the conflicting definitions and meanings inherent in the term and examines the highly selective paradigm of governance that has been developed in official Commission discourse. The third addresses two specific areas where the Commission's governance model has been applied: the Green paper on The Future of Parliamentary Democracy and the Open Method of Coordination. The fourth turns to analyse these findings using critical social theory. I conclude that far from laying the grounds for a more inclusive, participatory and democratic political order, the Commission's model to governance represents a form of neoliberal governmentality that is actually undermining democratic government and promoting a politics of exclusion. [ABSTRACT FROM AUTHOR]

Moving from Michel Foucault's criticism, in the mid-1970s, of a‘theory of the State’, this paper addresses the relevance—for the current process of making the‘Constitution’ of the European Union—of the obsolescence of the state concept and the emergence instead, in the course of the twentieth-century, of an idea of‘social control’ as a way to represent conditions for social order within the new mass democratic society. Such conditions, and the theory thereof, first developed in North America, and then increasingly in Europe after World War II and especially since the 1970s. From such a comparative-historical perspective, the paper then tries to shed light on the debate that was ignited by Dieter Grimm on the very possibility of a‘democratic constitutionalisation’ of Europe. The connections between language, social control, and a (democratic) European constitution are then discussed, and specific attention is given to the nexus that has been constructed in today's Europe between migration, criminalisation and security, as a sort of test bench of those connections. [ABSTRACT FROM AUTHOR]

This paper focuses on the adoption of a number of Community regulations, each for a specific sector, to be implemented not just by a supranational administration (central or peripheral), but by a plurality of national, supranational and sometimes mixed authorities, with a special role assigned to a Community office set up by the same legislation for a given sector, and granting it legal personality. The purpose of this paper is to verify whether the various regulations by sector ought not to be regarded as variants of an emergent general model of joint exercise of certain Community functions. It is argued that such general model is still in the making, but it is in the process of becoming consolidated, notwithstanding the variety of approaches adopted by European legislators. Such a pattern is characterised by specific, differentiated organisational and procedural features. This conclusion is relevant in several different ways, the first of which is that it provides new conceptual tools for interpreting and explaining the process of administrative integration between supranational and national public authorities, in particular by specifying the taxonomy of the patterns through which a Community function can be carried out by two different authorities acting jointly. Second, the decentralised integration model should be considered as a sound and feasible option for the administrative evolution of the Community legal system. [ABSTRACT FROM AUTHOR]

The European Parliament has often been understood along the lines of theories of European integration—compared to regular parliaments by Federalists or belittled as merely an international assembly by intergovernmentalists. This paper proposes an understanding of the European Parliament not along theories about what the EU should become, but what it is and surely will continue to be, that is a very distinct federal structure. The European Parliament is a parliament in an executive federalism—with farreaching consequences for its form and functions. After outlining the characteristics of this federal structure, these consequences will be demonstrated by analyzing the European Parliament in contrast with two ideal types of parliaments: the working parliament, separated from the executive branch and centered around strong committees (like the US Congress), and the debating parliament, characterized by the fusion of parliamentary majority and government as well as plenary debates (like the British House of Commons). Dwelling thus on a comparison to a legislature in a non-parliamentary federal system, like the US Congress, this paper argues that the European Parliament might best be understood as a special case of a working parliament. Finally, it will be proposed to consider the influence of executive federalism not only as fundamentally shaping the European Parliament but also as rendering the EU generally a semi-parliamentary democracy. [ABSTRACT FROM AUTHOR]

Though the impact of EC law on the legal status of national powers has been fairly well examined, little attention has been paid to the overall evaluation of the relations developed between national authorities. The paper argues that the mutation of the Judiciary and the Executive role vis-à-vis the Legislature appears to be an application of an emerging doctrine in EC public law that conspicuously resembles the 'Checks and Balances' theory of American constitutionalism. The action of one public authority is— or must be—countered by the reaction of another for the benefit of EC law. Apart from identifying the features of this 'principle' in comparison to its equivalent American doctrine, the paper deals with the question of a possible coexistence of this new model of governance with the traditional one. The comparative perspective is necessary here. Whereas in Germany the constitutional model appears to cope with European demands, in France it seems largely opposed to such a dynamic conception of the separation of powers. [ABSTRACT FROM AUTHOR]

This paper responds in its first sections to a series of articles in which Rainer Schmalz-Bruns developed a concept of legitimate governance beyond the constitutional state, which he called ‘deliberative supranationalism’ and contrasted with what Jürgen Neyer and the present author had suggested under the same title. The Epilogue of the paper first comments on more recent critiques brought forward especially by contributors to this Special Issue of the ELJ and then on the programmatic rejection of comitology by the European Commission’s White Paper on Governance in the EU. Our querelles allemandes were not specifically Teutonic: while Schmalz-Bruns presented his approach as a systematic elaboration of the theories of deliberative democracy, based, in particular, on recent contributions by Joshua Cohen, Michael Dorf, and Charles Sabel, Jürgen Neyer and I had offered an interpretation of institutional innovations and decision-making practices as observed in the European market-building project. This discussion has had precursors and follow-ups in various contexts, among both lawyers and political scientists. This essay should hence be understood as a contribution to an ongoing debate. [ABSTRACT FROM AUTHOR]

Abstract: The paper reviews key aspects of the new constitutional framework for the European Union, once the Treaty of Amsterdam has been ratified, in the light of the core challenges of managing flexible integration in an enlarged Union and securing adequate legitimacy for the integration project. Reviewing briefly the general debates on flexibility, and its relationship to different constitutional and political futures for the Union which are suggested by those involved in the debates, the paper examines the principal provisions governing what is termed `closer cooperation' within the new Union treaties. The emphasis is placed on the framework provisions of the TEU, and those in the First Pillar. It is noticeable that the Treaty takes a `non-ideological' approach to flexibility, eschewing direct support for those who interpret flexibility as meaning more or less integration in the future. It provides a framework for future cooperation which is likely to be too restrictive to be workable, except in very limited circumstances. However, particular instances of flexibility are provided in the Treaty, in the form of the opt-outs from the new free movement title and the communitarisation of Schengen for the United Kingdom, Ireland and Denmark, and some might even describe these as `pick-and-choose'. The paper concludes by reviewing the flexibility debate against the background of the ongoing legitimacy challenge for the Union, arguing that, as currently conceived, flexibility is more to do with balancing political interests than with securing or enhancing legitimacy. [ABSTRACT FROM AUTHOR]

The general principle of equality in European law is often held to be inconsistently applied by the European Court of Justice ( ECJ) and insufficiently supported by methodology. Contrary to this assessment, this paper argues that there is substantial coherence and theoretical underpinning to the court's equality reasoning. First, it shows that the respective case-law can be subdivided into three groups, depending on the level of scrutiny applied. Second, it establishes that the prevailing accounts have difficulty in explaining the court's choice of scrutiny due to their limited selection of analytical parameters. Third, it concludes that comparative institutional analysis offers an alternative framework to make the ECJ's testing approaches in equality matters more intelligible. [ABSTRACT FROM AUTHOR]

The 1995 ruling of the European Court of Justice in Bosman was a pivotal point in the relationship between the European Union and sport. It has had an immense impact upon professional team sports, most notably football, in terms of liberalising the transfer system and abolishing player quotas. This paper will chart the development of a European sports law policy generally and will specifically discuss two current proposals concerning the reintroduction of playing quotas in football. We will examine the legality of these proposals with reference to Article 45 of the Treaty on the Functioning of the European Union and will evaluate the political context within which these proposals have been promulgated. It will be suggested that a possible solution, which should end legal uncertainty, could be the adoption of a collective agreement or directive based on the methodology of reflexive labour law. [ABSTRACT FROM AUTHOR]

This paper identifies key obstacles of law enforcement that may frustrate a policy that fights the facilitation of collusion. It outlines remedial actions against features that facilitate collusion and examines to what extent authorities––such as Directorate General (DG) for Competition, National Competition Authorities and regulators––have the powers and ability to take these actions. The analysis covers a number of legal tools including the theory of harm of coordinated effects in European merger control, Articles 101 and 102 Treaty for the Functioning of the European Union, stricter national laws and regulation. I conclude that DG Competition has little powers to act, except for merger control. Although NCAs and regulators may enjoy broader powers, tough challenges lie ahead in terms of the exercise of discretion, error and effectiveness of remedial actions. [ABSTRACT FROM AUTHOR]

This paper deals with the issue of non-regression clauses, which, despite a twenty-year history, has been addressed by domestic and European case law only recently, and only with regard to the field of flexible employment. This essay argues that the Court of Justice case law on non-regression clauses (the Mangold and Angelidaki rulings) leads to a weakening of these instruments, rendering them ineffective. This ineffectiveness is due to the controversial idea of Fixed-Term Work in the era of flexicurity, and to the difficult justiciability of the particular clause in itself, as demonstrated by the most recent Court of Justice's ruling, Sorge. In addition, this essay provides an explanation of the difficult enforcement of non-regression clauses, in light of the new course of European employment policies. [ABSTRACT FROM AUTHOR]

Currently the Member States' nationalities, short of being abolished in the legal sense, mostly serve as access points to the status of EU citizenship. Besides, they provide their owners with a limited number of specific rights in deviation from the general principle of non-discrimination on the basis of nationality, and-what is probably more important for the majority of their owners-trigger legalised discrimination in the wholly internal situations. Viewed in this light, the requirement to have only one Member State's nationality enforced in national law by 10 Member States seems totally outdated and misplaced. This paper focuses on the legal analysis of this controversial requirement. [ABSTRACT FROM AUTHOR]

This paper discusses the relationship between the idea of coherence and the legal order set up by the European Community. It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists. [ABSTRACT FROM AUTHOR]

Last year the European Commission published itsAction Planon European contract law. That plan forms an important step towards a European Civil Code. In its Plan, the Commission tries to depoliticise the codification process by asking a group of academic experts to prepare what it calls a‘common frame of reference’. This paper argues that drafting a European Civil Code involves making many choices that are essentially political. It further argues that the technocratic approach which the Commission has adopted in the Action Plan effectively excludes most stakeholders from having their say during the stage when the real choices are made. Therefore, before the drafting of the CFR/ECC starts, the Commission should submit a list of policy questions regarding the main issues of European private law to the European Parliament and the other stakeholders. Such an alternative procedure would repoliticise the process. It would increase the democratic basis for a European Civil Code and thus its legitimacy. [ABSTRACT FROM AUTHOR]

The theme ‘law and disorganised civil society’ raises the fundamental question concerning the junction between legal order and disorder, hence the passage from instituted legal order to the institution of legal order. The emblematic manifestation of this passage, in the framework of the European legal order, is the acquis communautaire: what is the nature of the process that leads from acquired community to acquiring a community? In a first, preparatory, step, it will be argued that determinate conceptions of truth, time and the giving and taking of reason underlie the process of acquiring a European community. These findings are confronted, in a second step, with Antonio Negri's theory of the multitude as a constituent power, which opposes revolutionary self-determination to representation. Deconstructing this massive opposition, this paper explores three ways in which representation is at work in revolutionary self-determination. As will become clear in the course of the debate, instituting (European) community turns on the interval linking and separating law ‘and’ disorganised civil society. [ABSTRACT FROM AUTHOR]

Abstract: Community agreements with third countries frequently contain provisions on State aids. These provisions are designed to achieve a range of different objectives, related both to developing trade between the contracting parties and to economic and legal/regulatory development within the partner State. This paper takes a particular model of State aid clause—those found in the Europe Agreements (EAs) and the Stabilisation and Association Agreements (SAAs)—in order to explore the implications of a harmonisation obligation applied within the context of accession to the EU. In these agreements the State aid rules—and in particular those relating to the application of Community-based criteria—are intended to contribute to the pre-accession adoption of the acquis communautaire by the associate States (including those who are not yet candidates). These clauses are striking in their emphasis on the full adoption of Community-based standards for the approval of aids, including large quantities of ‘soft law’, while saying very little as to the appropriate procedures for enforcement. The experience of implementing these clauses illustrates the practical difficulties of applying Community norms and standards outside the procedural structures, integration mechanisms and single market objectives of actual EU membership. The associate States are required to demonstrate their capacity for applying and enforcing the Community-derived rules while balancing the needs of their own economic development against an undefined ‘common interest’. [ABSTRACT FROM AUTHOR]

Since the ratification of the Europe agreements, Eastern European accession countries are transposing community law into their national legal framework. The law approximation process in the field of health concerns three themes, viz public health, health–related issues, and the internal market. Although the health acquis has been largely focused on public–health issues, it is increasingly becoming clear that internal market treaty provisions may also affect health–related rights. For candidate member states this means that the common market has important consequences for health and their health–care systems. Therefore, this paper will examine the impact of relevant treaty provisions on acceding countries’ (public) health legal framework. [ABSTRACT FROM AUTHOR]

Building upon the experience of the Convention for the elaboration of the Charter of fundamental rights and upon the suggestions of the White Paper on European Governance, this article puts forward proposals for a better involvement of the 'civil society' in the system of the European Union. It offers a general diagnosis of the misunderstandings surrounding the notion of 'civil society' and the relationship of representative democracy to participatory democracy. It then draws some lessons from the experiment in deliberative democracy which led to the drafting of the Charter of fundamental rights. Finally, it focuses on the contribution the organisations of the civil society can make to good governance in the European Union. Altogether, the proposals presented tend to encourage a better structuration of the actors of the civil society. Such a structuration, the article concludes, although it is usually considered with suspicion even by those whom it would most benefit, must be seen instead as a condition for the effective exercise of whichever participatory rights might be granted to the organisations of the civil society. [ABSTRACT FROM AUTHOR]

The paper addresses the role of the Court of Justice in the European integration process, as well as, more broadly, tensions between constitutionalism and new governance. I propose an account, according to which the judiciary should not be seen as standing in an aloof place in the political order, and as opposed to a—pluralistic, irrational, and anarchical—society, but rather as part of a continuum on which other governance arrangements are also placed according to their share in ‘tribunality’—the deliberativeness of their decision-making processes and their openness to new facts. [ABSTRACT FROM AUTHOR]

This paper will examine the theoretical arguments for and against the importance of new business forms for the growth of start-ups. Part I briefly reviews the recent history of business organisational law and reform within Europe. Our review of extant European business forms reveals that the absence of new business entities (and structural reforms) may be due to status quo bias and other network effects. Turning to the importance of new business forms, Part II addresses the question which organisational and legal structures are favourable for the growth of start-ups. It is suggested that the introduction of an efficient organisational form for start-ups is crucial to further stimulate the development of a successful venture capital market in Europe. In Part III we give consideration to the possibility of developing new business forms, based on US mechanisms, which could lead to an increase in the level of high-tech start-ups. The prospect for the emergence of new business forms depends in part on the removal of legal and non-legal barriers. The final section evaluates whether we can project a pattern of regulatory competition in the business organisation context that could prompt lawmakers to innovate by introducing new legal entities. [ABSTRACT FROM AUTHOR]

Abstract: The paper seeks to analyse certain paradigmatic cases of dialogue--or, indeed, non-dialogue--between national judges and the ECJ, though within the (still possibly emblematic) limits of a focus on the law on the transfer of undertakings. The analysis is less concerned with portraying the detailed impact of the ECJ's decisions on the domestic legal order, and is focused more upon the 'modality' of the dialogue to date carried out between Italian and European judges. The logic, which guides this dialogue (or, the lack of its evolution), furnishes us with a better understanding of the production, circulation and impact of ECJ jurisprudence. This dialogue seems to be characterised, by non-uniform, or multi-speed, developments. On the one hand, Article 177 references have been concentrated around the theme of undertakings in critical difficulties or subject to a creditors' arrangement procedure. In this area, the Italian courts have engaged in explicit dialogue with the ECJ and have made the greatest effort to read--not without some technical-juridical struggle--the national norm in the light of the provisions of the Acquired Rights Directive and its interpretation by the ECJ. By contrast, however, with regard to other specific issues (in particular, those concerning subcontracting) it is apparent that not only were the Italian courts (and the Corte di Cassazione in particular) loathe to enter into direct dialogue with the ECJ, but also that the ECJ's jurisprudence, built up through dialogue with other national courts, was not even consulted in an effort to guarantee an interpretation of national norms, in conformity with Community law. [ABSTRACT FROM AUTHOR]

Abstract: This paper details certain fundamental considerations intended to clarify and advance the notion of a 'co-operative relationship' within the current lively debate on the relationship between European law and constitutional law. The argument is set against the background of the constitutional theory of separation of powers. [ABSTRACT FROM AUTHOR]

Abstract: By virtue of conceptual abstraction, the notion of nationality plays a pivotal role in liberal democracies, governing distinctions in the allocation of 'absolute' and 'relative' rights, and determining that while national citizens, as full member of a sovereign political community, enjoy both human and political/social rights, resident aliens are excluded from the scope of these latter, community-related, rights. Further, The European Convention upon Human Rights appears to countenance this dichotomy, allowing sovereign states to restrict the political activity of aliens. This paper nonetheless argues that such a distinction undermines the democratic imperative upon which liberal constitutional states are founded. A 'social integration thesis,' holding that individuals should enjoy, as a fundamental right, the possibility fully to develop their personalities though establishing and pursuing secure social contacts, as well as interpreting those contacts in the light of prevailing cultural perceptions, not only raises the right of stable residence to one of most fundamental attaching to the human condition, but also indicates that political rights--a mere extension of self-expression and self-fulfilment within civil society--should be recast as a universal entitlement. Article Three of the First Protocol ECHR may be construed in line with the social integration thesis, and consequently, in the matter of the definition of the members of the national community, the political sovereignty of the Nation State must be limited. [ABSTRACT FROM AUTHOR]

The independence of the European Central Bank is legally defined in very clear and strict terms. Although most scholars in economics describe this status as a crucial condition of the Bank's efficiency, it is frequently criticised by politicians and political scientists as a contradiction to democratic theory. This paper will examine the emerging practice of parliamentary control of the ECB, from its installation until September 1999, in order to understand which kind of 'accountability' is elaborated in this unprecedented relationship between 'politicians' and lsquo;technocrats'. It will first show that MEPs have rejected all forms of parliamentary control based on a logic of constraint. It will then describe the numerous institutional links created between the Bank and the EU political organs to favour their cooperation. Finally it will analyse the recent initiatives taken by MEPs to influence central bankers and to convince them to submit their decisions to public debates. The hypothesis developed from these empirical analyses is that a new kind of 'accountability' is emerging in the EU. From a horizontal point of view (inter-institutional controls), it is based on influence rather than traditional parliamentary constraint. From a vertical point of view (accountability to citizens), it focuses on responsiveness rather than on classic responsibility. [ABSTRACT FROM AUTHOR]