Jean Monnet Center at NYU School of Law


4. Objections

Back to the beginning. The legitimacy of transnational governance powers deriving neither from national constitutional law nor from some a priori super-ordinate polity is, as asserted at the outset, the core and enduring problem of European law. The integration concepts of ordo-liberalism and functionalism as developed in the German tradition, so the second argument went, identified this primordial problem properly. The rationality criteria they wanted to institutionalise at European level are, however, not (at any rate, not any longer) adequate. Accordingly, the White Paper's demand to advance from legal and economic rationality to European governance is, in principle, justified.

But what about the legitimacy of the type of governance outlined in the White Paper? The proposals on regulatory policy, on which these comments were focused, insinuate a type of transnational polity that does not exist. They presuppose that Europe be hierarchically ordered, and have a common sovereign whose will a transnational administration is empowered to implement. Undoubtedly, this description contains nothing of what the White Paper says about participation, communication, the role of civil society and the "five principles of good governance". From a systematic viewpoint, these principles have a fundamental role. They are supposed to domesticate the "regulatory surplus" that traditional conceptualisation of transnational governance was unable to cope with; they are to do so by supplementing the "double democratic mandate" on which European governance rests by a third one. This alternative, it is submitted, is inconclusive. If account is taken of the questions that European legislation is already leaving up to the implementation process, and of the fact that the White Paper advocates further slimming down of legislative frameworks (p 24 ff.), then it becomes clear, primarily, that the topics that the Commission and its executive agencies will have to address are extremely important economically, and highly sensitive politically. What entitles actors from civil society and the expert communities referred to in the White Paper to assume such a far-reaching mandate? Nowhere are questions of interest-representation discussed systematically. Are the actors simply to appoint themselves? Is the Commission to monitor these appointments? Delegation of law-making powers is a necessity, which all constitutional states have had to face. The responses within constitutional states vary and may often be unconvincing.59 Community law cannot simply imitate national models. But, it must look for functional equivalents.

All this compels us to recall the committee system despised by the White Paper as a specifically European response to the delegation problem. The, up to now, seemingly irresistible rise of the committee system has factual as well as normative reasons. In comparison with regulatory agencies that follow the American pattern or the type of executive agencies that the White Paper advocates, comitology has the enormous advantage that it structures regulatory policy pluralistically even in its "implementing stage". This type of implementation remains sensitive towards social and cultural differences in the "internal market". It ensures that national bureaucracies are confronted with the concerns, experiences and positions of their neighbouring states. It constrains the decision-making discretion that the White Paper wishes to allot to the Commission; it does not completely rule out diversity in regulatory policy, and it actually ensures that new events and insights can lead to its revision. All the same, rebus sic stantibus, the committee system has weaknesses that seem to mirror those in the White Paper's programme: while the White Paper invites the whole world to participate but does not indicate who will really be allowed access, the access routes to the comitology networks seem far too narrow from the outset. It is still, however, conceivable that, in the decentralised communicative contexts to which the comitology actors are committed, the still primarily nationally organised publics can bring in their interests, concerns and arguments, and that these publics can take note of these and the comitology contribute to interweaving them. Instead of complaining of this plurality, one should ask what opportunities might lie in the coming together of plural publics - and how these opportunities can be institutionally stabilised so as to establish "transnational deliberative fora" which would become the basis of legitimate transnational governance, a normative construct with which all levels of governance - the nation-state, the EU, WTO - can, and should, be confronted, but to which the EU comes closest.60

In an analysis of comitology in the foodstuffs sector,61 Jürgen Neyer and I have used the term "deliberative supranationalism" - not "deliberative democracy" - for a twofold process: on the one hand, for the "restraints" imposed upon the "internal" decision-making processes in constitutional states resulting from the guarantee of European rights, from commitments to take account of "foreign" interests, and from the binding of these nation states by transnational principles and duties to justify their policies. We have called this supranationalism "deliberative" because it bases its validity claims not simply on a hierarchy of sources of law but from constitutional ties of politics.62 The second dimension of this deliberative supranationalism is an unavoidable consequence of the interdependency arising from the effects just mentioned. We have argued that governance in such polities cannot claim the same type of democratic mandate as constitutional states; it will, instead, have to invoke the quality of its opinion-forming and decision-making; and it will have to respect irresolvable differences. In this context and in this sense, I have also repeatedly talked of "good governance",63 particularly, because the term "Verwaltung" (administration) does not contain that (inter-)governmental element that is essential to the management of the internal market, because the formula of "good" governance at least expresses a normative claim intended to raise governance in the internal market above mere strategic negotiation - though, admittedly, without claiming to decipher the metaphor of good governance conclusively, and/or Ambrogio Lorenzetti's famous picture.

Is this conclusion too gloomy? Those Prussian reformers who, with the help of administrative reforms, wished to meet the demands for a genuine constitution and/or prove it superfluous, were unable to tranquillize their contemporaries, and, instead, paved the way to the revolution of 1848. Prussia's reformers did not have that on their banners, yet it was a good thing for Germany, as we know today.

59 Cf., the contributions by G. Haibach, E. Picard, A. Tomkins, A. Türk in M. Andenas/A. Türk (eds.), Delegated Legislation and the Role of Committees in the EU, Den Haag-London-Boston 2000, 53 ff. On the example of Article 80 of the Basic Law and the historical basis of that provision, cf., Ch. Möllers, Das parlamentarische Gesetz als demokratische Entscheidungsform - Ein Beitrag zur Institutionenwahrnehmung in der Weimarer Republik, in Ch. Gusy (ed.), Demokratisches Denken in der Weimarer Republik, Baden-Baden 2000, 415 ff..

60 Ch. Joerges, Law, Science and the Management of Risks to Health at the National, European and International Level: Stories on Baby Dummies, Mad Cows and Hormones in Beef, Columbia Journal of European Law 7 (2001), 1 ff., at 16 f. See, also, the sociological studies by Eder, Herrschaftskritik und die Suche nach ihrem Träger. Zu einigen Vermutungen über den europäischen Demos. Oder: Wie ist eine heterodoxer sozialwissenschaftlicher Diskurs möglich?, manuscript Berlin 1999; K. Eder, Zur Transformation nationalstaatlicher Öffentlichkeit in Europa. Von der Sprachgemeinschaft zur issuespezifischen Kommunikationsgemeinschaft', Berliner Journal für Soziologie, 10 (2000) 167 ff., and on the broader constitutional context recently J. Habermas, So, why does Europe need a constitution?,

61 Ch. Joerges/J. Neyer, From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology', European Law Journal 3 (1997), 273 ff..

62 Cf., for an elaboration, Ch. Joerges, Das Recht im Prozeß der Konstitutionalisierung Europas, EUI Working Papers Law No. 6/2001, 46 ff.

63 N. 56 supra.




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