Jean Monnet Center at NYU School of Law


1. Introduction

The White Paper project that the Commission launched with a view to developing prospects for democratically reformed "European Governance"1 nourished hopes and met with reservations. The sceptics called the practical utility of the whole undertaking into question. They saw their views confirmed when, on 26 February 2001, the Treaty of Nice produced a result that made follow-up conferences not just seem inevitable, but absolutely necessary. In fact, if the ratification process had taken its expected course, then what immediately came to be called the "post-Nice process" would have immediately dominated the European political agenda, leaving scarcely any room for the White Paper. Now that the Irish referendum has unleashed its own confusion, the White Paper, finally published on 25 July 2001,2 may once again reckon on greater attention. Its authors, too, evidently see it this way: the Irish "no" to this Treaty is seen as an expression of dissatisfaction with politics and institutions (p 9)3 - something already dubbed as disenchantment with politics [Politikverdrossenheit]4; the phenomenon does not affect Europe alone. Additional reasons seem to militate for such an interpretation of the Irish failure of the Nice Treaty. Do the abstention and rejection by the Irish not once again confirm the notion that European politics has slipped past the intergovernmental mode of IGCs and has to seek new patterns and further expressions? Is it not the Commission's task here to take new initiatives to overcome the stagnation and tackle the resulting dangers to the integration project? Was Romano Prodi, then, well advised to give such high priority to programmatic renewal of the practices of European governance? Is it even appropriate to bring in historical references and recall Prussia's position in the early nineteenth century, when brilliant, energetic reformers sought, through a "constitution of government", to smooth the path towards an overall constitution?5

Measured against such historic examples, the final text of the White Paper looks rather modest. The introductory statements to the White Paper, already mentioned, sometimes read like a piece of marketing. And if many Europeans feel, as stated a little later, "alienated from the Union's work" (p 7), this may be ground for concern, but it is hardly an analytically adequately precise starting point for institutional or programmatic reforms.

All this seems to prove the sceptics right. Yet, it is also true that both the preliminary and accompanying work,6 perhaps more than the rather all too complacent sounding White Paper itself,7 do, at any rate, discuss in depth some extremely interesting questions of European politics and of the Governance project, and, indeed, do take up, at least from a legal viewpoint, the persisting core problem of the integration project as such and of the approach to it. For the keyword - indeed, buzzword - "governance" is a response to the emergence and growth of the genuinely transnational governance structures which arose when the Member States of the European Community agreed, back in 1958, to maintain more than purely intergovernmental relationships with each other, and set up more than an international organization - and these governance structures were bound to arise if autonomous actors were to find the way to a form of co-operation intended to reach common solutions to common transnational problems on a lasting basis. Undoubtedly, since 1963 at the latest, Europe has become familiar with the judicial view that its Treaties are not to be understood as mere intergovernmental agreements, and that the European powers are not to be legitimised purely in terms of international law.8 But, at least since the 1987 Single European Act, the European Union has also grown beyond the Community that the ECJ was contemplating in 1963, when it found that the Member States had limited their sovereign rights, "albeit in limited fields", thereby bringing into being a new legal system whose legal subjects are not solely the Member States but also individuals. "Governance", the key term in the White Paper, is, at any rate, a positive appellation for this otherwise always purely negatively couched aliud and the metaphor of "good governance" is a way - not purely metaphorical in the Commission's mind - of presenting the peculiar indeterminate state that the Union has got into since the view has come to prevail that the "constitutional charter" it has no longer suffices,9 without it being clear what kind of a constitution ought to replace that charter.

These statements are to be clarified in the next section (2), in a reconstructive procedure which recalls the legal justifications for legitimate transnational governance from the formative state of the European Economic Community and reaches back in order to reconstruct them in the period of the Weimar Republic. This recourse to German traditions will look one-sided. Yet, a historically-oriented reconstruction is not conceivable in a manner which is not "one-sided". All legal systems organised as nation states cannot but define the preconditions for internationally functioning co-operation for themselves. Only gradually are they able subsequently to discover whether and to what extent they will have to move to a transnational perception of transnational problems. In terms of European supremacy over national legal system, what sort of common governance may and/or should states (themselves democratically constituted, and, indeed, declaring this form of government to be fundamentally untouchable as Article 79 (3) of the Basic Law does) accept or strive for?

It is no coincidence that specifically the Basic Law has endorsed both principles, an absolute commitment to democracy and, in Article 24, the principle of "open statehood" [offene Staatlichkeit].10 It is equally no coincidence that, specifically in Germany, traditions which promised to resolve the obvious tensions between both principles were, in fact, available. All this militates very emphatically in favour of proceeding "one-sidedly" in reconstructing legal justifications for the legitimacy of transnational European governance; it is in the very reconstruction of the different starting points of the Member States in the integration project that its later achievements can be made apparent - among them the gradual development of transnational governance structures. The White Paper's programme seeks to arouse awareness of this process, take it further and, at the same time, make it democratically acceptable. Anyone aware of the difficulties of this process and the conceptual problems it entails will have problems with the style in which the White Paper deals with them. However, to raise objections (see Section 4 below) is not to assert that there are any ready-made recipes available.

1 Cf., especially, the Commission's Working Programme on "Enhancing Democracy in the European Union", SEC (200) 1547, 7 final 11 October 2000;; the ongoing work was documented on the website It should by now contain the concluding reports of the 12 Working Groups, which have supported the Commission's Governance Team. - These documents will have their impact on future debate and policy processes. The analysis submitted here, however, focuses on the document that the Commission has adopted. It does not seek to do justice to the preparatory efforts and the reports of the working groups, which are by now available at the Commission's website.

2 COM(2001) 428.

3 Page numbers in the text refer to the White Paper.

4 Typing the German term into the Google search-engine gives 5690 hits within 17 seconds.

5 See R. Koselleck, Preußen zwischen Reform und Revolution. Allgemeines Landrecht, Verwaltung und soziale Bewegung, Stuttgart 1975, 163 ff.; G.-Ch. von Unruh, Die Veränderungen der Preußischen Staatsverfassung durch Sozial- und Verwaltungsreformen, in: K.G.A. Jeserich/H.Pohl/G.-Ch. von Unruh (eds.), Deutsche Verwaltungsgeschichte, Band II (Vom Reichsdeputationshauptschluß bis zur Auflösung des Deutschen Bundes), Stuttgart: Deutsche Verlags-Anstalt 1983, 399-470.

6 See n. 1.

7 See n. 2.

8 Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, ECR [1963] 1 at 23 f.

9 As a further historical aside, these issues have been ventured in private international law for more than a century; it received its classical formulation by Bartin and Kahn and found its truly transnational solution in Ernst Rabel's concept of an international characterization; the boundaries between legal disciplines are, unfortunately, dense.

10 Cf., M. Zuleeg in R. Wassermann (ed.), Reihe Alternativkommentare. Kommentar zum Grundgesetz, Neuwied-Darmstadt 1984, Vol. 1, Art 24 Abs. 1 paras. 3 ff.




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