Looking for Coherence within the European Community*

The Modern Law Review, 1993

2010

The EU was originally established in the Treaty of Maastricht in 1992 as a formal legal construct not entailing legal unity with the pre-existing EC. Almost 20 years later the Treaty of Lisbon explicitly ordains legal unity, thus catching up with legal and institutional practices, social reality and the perception of citizens and third states. This paper analyses the trend of harbouring, within the outer shell of the Union, various autonomous and interlinked entities with their own specific roles and legal regimes has been continued. Rather than thinking in terms of 'layers' implying images of vertical and horizontal separation it may be more appropriate to think rather of a looser and less sharply defined 'marbling' effect. Legal unity is in any event the order of the day and no longer 'in disguise'. The new Lisbon Treaty has the advantage that it in one fell swoop improves the systemic visibility and structural clarity of European integration processes. At the same time this catches up with social reality and the perception of citizens and third states already from the early days that the EU constitutes an organizational and legal unity. 3 The 'verdict' of both the Court of Justice in developing the 'living' constitution over time and the framers of inter alia the Treaty of Lisbon is that the legal system-and also the political system-of the European Union as such is developing as an institutional and legal unity. Such a unitary institutional legal system creates spaces for developing a variety of sub-legal systems not only within the Union itself, but also within the separate policy areas, a reality most recently consolidated in the Treaty of Lisbon. We begin by outlining in some detail our theoretical starting point for the analysis of the development of the legal system of the European Union as such, namely the 'institutional theory of law' (paragraph 2). This institutional approach constitutes in our view still the best possible theoretical framework for analyzing a complex modern legal system such as that of the European Union. In applying the core concept of this theory, 'legal institution', to the Treaty on European Union, we defend the thesis that already in this Treaty and its legal system an international organization with a unitary but complex legal character was established in 1992. Whether this legal 'picture' presented by the provisions of the TEU itself, is in fact operationalised in the institutional legal practices of the Union in the context of CFSP, CJHA and PJCC, is the focus of paragraph 3. Finally we make some concluding observations on the nature and refinement of the 'marbling techniques' employed both in the Treaty provisions and in their (future) operationalization in practice.

The New Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era, 2015

In this chapter, we largely agree with the claim that the EU has moved on from the Community method. However, we do not go so far as to say the Community method is so redundant as to be irrelevant. Rather, we examine the place of law within the new intergovernmentalism and make the claim that developments in EU law and our understanding of it do not represent a simple ‘retreat’ from law and replacement by political, consensus- based decision-making driven by governments and instrumentalized through de novo bodies. Instead, we see EU law in the post-Maastricht era as a heady blend of such a ‘retreat’ alongside newer forms of ‘hyperlegalism’, reliance on the procedural legitimacy afforded by law, differentiated forms of law, novel applications of legal principles, and increased significance of legal reasoning. None of the features of the post-Maastricht EU necessarily mean a decline in the importance of law. These novel legal forms may even be better suited to the political economy challenges in the post-Maastricht period. It will be obvious that we are relying upon an assumption that ‘law’ is distinct from ‘politics’—a view that is shared by most legal scholars, but not by all EU scholars. The implication of our overall argument in this chapter is not only that law plays a role in the new intergovernmentalist EU, but also that legal scholarship has important contributions to make to the continued debate over what the EU is, what it stands for, and how it works.

FRAME Working Papers, 2016

This report is submitted in connection with Work Package 8 of the FP7 FRAME (Fostering Human Rights Among European Policies) project. The report falls within Cluster Two, tasked to look at the actors in the European Union’s Multi-Level, Multi-Actor Human Rights Engagement. Work Package 8, ‘Coherence Among EU Institutions and Member States’, examines the principles, competences, actions and interactions of EU institutions and the Member States that characterise human rights policies and that lead to coherence or incoherence in the EU and Member States’ promotion of human rights. The potential for ‘horizontal’ coherence and incoherence was examined in the Work Package’s first report, Deliverable 8.1, ‘Report on coherence of human rights policymaking in EU Institutions and other EU agencies and bodies’. The Work Package’s second report, Deliverable 8.2, ‘EU and Member State competences in human rights’, examined ‘vertical’ coherence and incoherence, produced by the interaction between the EU and its institutions and the Member States. In this report, we try to put a face on the results of previous reports in Work Package 8 and to get a sense of how coherence or incoherence appears in practice in the activities and discourse of policymakers in EU institutions, the Member States and in their vertical and horizontal interaction. The report is based almost entirely on interviews with policymakers, which includes primarily EU officials, but is interpreted broadly to include also Member States and non-state actors. Given the emphasis on actors for this Cluster and the Work Package, the report maintains the focus on them, in this case both as the basis for the choice of interview subjects and in terms of the research question, with an emphasis on different actors as potential ‘agents of coherence’. The questions that have been posed during the interviews are based on the findings from previous reports in Work Package 8. They begin with the understanding of coherence developed in Deliverable 8.1, which sees incoherence arising from three potential sources: structural, policy (in terms of competing concepts and visions or policy regimes) and interests. Policymakers have been asked specifically about their own experiences of coherence/incoherence in the context of EU human rights policy. The main body of the report (section II) looks at EU institutions as potential 'agents of coherence' or avenues for incoherence. Through the views of policymakers working in the context of the principal EU institutions, it provides an account of the role of the institutions in promoting or undermining coherence in EU human rights policy, including examples of best practices of coherence, as well as what are considered to be the main sources of incoherence in the views of the policymakers involved. Section III is devoted to Member State policymakers with responsibility for EU policies, and is limited to the analysis of the views of representatives from two Member States interviewed for the present study. Finally section IV is devoted to a thematic case study on 'Coherence in EU Business and Human Rights Policy', which examines how coherence or incoherence appears in practice in the activities and discourse of EU institutions, the Member States and other actors on the subject of business and human rights. Overall, the report has found that different types of incoherence emerge in the work of all EU institutions and bodies. Each EU institution has a role as an ‘agent of coherence’ in EU human rights policy, while at the same time at risk of facing different types of incoherence in its work. The same is true for Member States and more generally for policymakers involved in the development of EU human rights policy. All EU institutions show good practices and potential avenues to aid coherence. However, while all EU institutions play a role in the coherence of EU human rights policy, some are institutionally better placed to act as ‘agents of coherence’ in EU human rights policy. In this regard, the report has highlighted best practices as well as limitations and sources of incoherence. Each institution was also found to report potential limitations and shortcomings in the context of the coherence of its human rights work, some of which were found to be more irresolvable than others. Further, different EU institutions show very different levels and sources of incoherence, whether structural, policy or interest-based. On the whole structural incoherence dominates the accounts of interviewees, which in turn may give rise to other sources of incoherence, including policy or interest-based incoherence. The complexities of the institutional set up of EU human rights policymaking clearly emerges and provides a perhaps worrying picture of competing processes, structures and mandates overwhelming the policymakers themselves. On one hand, there appear to be too many processes taking place at the same time, with some overlap. On the other hand, the resources to follow all such processes as well as carrying out the necessary human rights related work were regularly reported to be limited and insufficient. Further, interviewees often reported to be working in a context of 'information overload' in which keeping on top of all relevant knowledge was a challenge in itself. At the same time communication barriers within and between institutions made it impossible to attain full knowledge of all competing processes. The issue of policy incoherence, in terms of competing concepts and visions or policy regimes, received some attention from the interview subjects. The most prominent example reported by many interviewees was the fundamental rights/human rights divide, which resulted from the internal/external aspect of incoherence in EU human rights policy. This theme was also related to the role of international human rights instruments and standards, on one hand receiving insufficient attention from EU policymakers and institutional actors, on the other providing a useful avenue to avoid the internal/external disconnect in EU human rights policy. The issue of interest-based incoherence, which by definition requires more in depth thematic studies, received less attention from interviewees. The case study on business and human rights (section IV) presents a useful example of the type of research necessary to fully investigate issues of interest-based incoherence, which remains a problem for numerous other areas of human rights and other institutions. The case study investigates the role of a wide multiplicity of actors in relation to one cross-cutting theme, including how they relate to the different policy frameworks, and how they relate to each other in relation to a specific theme and push forward the debate, issues and ultimately human rights policy. Overall a varied picture of challenges and recommendations emerges from the accounts of the different actors involved, who offer a range of practical solutions to overcome the sources of incoherence which often underlie their work. A number of concrete recommendations - emerging from the views of the interviewees and informed by our own analysis - have been put forward on each institution and are listed in the final section of this report (section V).

Polish Review of International and European Law, 2018

According to I. Pernice, the European Union has to be distinguished from an international organization for four reasons at least.First, there is no international organization where citizens have their own political representation and participate in the decision-making process. Second, direct legal action against individuals by directly applicable legislation does not happen. Third, the question of protection of fundamental rights against such ‘international’ power is not an issue. Last but not least, ‘no international organization provides for legal remedies of individuals against measures of that organization since there is no action having direct effect to the individual’. Therefore the author believes that the EU is an organization of citizens albeit having an appearance of an organization between states.Nevertheless one needs to remember that the European Union was founded as an intergovernmental organization by the European states on the principles of international law. That is...

2017

European Law Journal, 2005

Journal of Constitutional History / Giornale di Storia Costituzionale, 2023

www.storiacostituzionale.it I testi inviati alla redazione sono sottoposti a referaggio anonimo da parte di due esperti selezionati dalla Direzione sulla base delle proprie competenze e interessi di ricerca. Responsabili del processo di valutazione sono i Direttori della rivista. The papers submitted for publication are passed on two anonymous referees (double-blind paper review), which are chosen by the Chief Editors on the base of their expertise. The Chief Editors are responsible for the peer review process. Sommario / Contents giornale di storia costituzionale n. 45 / I semestre 2023 journal of constitutional history n. 45 / I semester 2023 Rule of Law and Rechtsstaat. Historical and Procedural Perspectives (second part) / Rule of Law e Rechtsstaat. Prospettive storiche e procedurali (seconda parte) Introduzione / Introduction luigi lacchè Fondamenti «EU's legal history in the making». Substantive Rule of Law in the Deep Culture of European Law / «La storia giuridica dell'Unione europea in divenire»: lo Stato di diritto sostanziale nello strato profondo della cultura del diritto europeo martin sunnqvist The Concept of the Rule of Law-Just a Political Ideal, or a Binding Principle? / La nozione di Stato di diritto: ideale politico o principio vincolante? juha raitio 47 Obtaining and Assessing Information about Rule-of-Law Compliance in Member State Courts. Using the European Arrest Warrant as an Illustration / Ottenere e valutare le informazioni sul rispetto del rule of law da parte dei tribunali degli Stati membri. Il ricorso al mandato d'arresto europeo come esempio lotta maunsbach 77 The Rule of Law Deficit in EU Competition Law-A Time for Reassessment / Il deficit del rule of law nel diritto della concorrenza dell'Unione europea: tempo di bilanci cristina teleki 91 Judicial Review in the Digital Era: Safeguarding the Rule of Law Through Added Safeguards? / Il controllo giurisdizionale nell'era digitale: è possibile preservare lo Stato di diritto tramite garanzie aggiuntive? annegret engel 103 The Action Brought by European Organisations of Judges against the Council of the European Union over the release of EU Recovery and Resilience Funds to Poland giornale di storia costituzionale / journal of constitutional history 45 / I 2023, pp. 11-35

Eunomia Rivista Semestrale Di Storia E Politica Internazionali, 2012

After a quick look at some of the new provisions introduced by the Lisbon Treaty, the article aims to bring to light some of the legal and ideological implications related to the decision of erasing all references to the term "Community" from the Lisbon Treaty. Starting from an etymological analysis of the term "Community", the research explores how the decision to give such a name to the first successful experiments of European integration in 1951 and in 1957 was, on the one hand, a cultural legacy of the Thirties and Forties and, on the other hand, necessary in order to achieve some political goals. In line with this, it will be possible to understand how the term «Community», quite unusual in the context of international organizations, allowed for more opportunities than the term "Union", which seems, prima facie, to embody the old federalist dream of the United States of Europe.

American Journal of Comparative Law, 2021