THE OTHER CONSTITUTION

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THE OTHER CONSTITUTION

• The White Paper on Governance and judicial review
• Hans Sundberg
• Joxerramon Bengoetxea

2
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

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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/

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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

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Governance a model
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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

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Main points of the WP-1 between effectiveness
and acceptability

• 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!

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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)

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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

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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

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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

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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.

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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.

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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)

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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 UEAPMEs prerogative as a legislator had
  been disregarded

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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

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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?

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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"

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Contact us

• Please send comments or questions to
• Jose.Bengoetxea_at_curia.eu.int
• hans.sundberg_at_curia.eu.int
• Article to be published in Europarättslig
  tidskrift in late spring 2004