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Documents: Legal Perspectives on Democracy and New Modes of Governance
 

Empowering European Agencies – or How to Tame the Sorcerer’s Apprentice
Stefan Griller and Andreas Orator
NEWGOV Policy Brief no. 22, Spring 2008
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Self- and Co-Regulation Instruments in the EU Legal Framework: Limits and Conditions of Use
Egle Svilpaite
The European Commission has been busy lately promoting new alternatives to legislation within the broader agenda of better law-making. The belief is that self- and co-regulation could be successfully employed by the EU alongside the traditional Community Method to achieve effectiveness, flexibility, expertise, and to integrate society at large, while at the same time simplifying Community legislation. The paper inquires into the limits and conditions imposed on the use of self- and co-regulation by the Interinstitutional Agreement on Better Law-Making, various documents of the European Union institutions and other sources. The content of five main procedural and substantive conditions – compliance with Community law, added value for the general interest, transparency, representativeness and monitoring – is explored in detail along with the precluded areas of their use. In addition, the paper briefly analyses how the integration into the EU legal framework of self- and co-regulation as new European regulation mechanisms reflects and at the same time challenges the institutional balance of the European Union and whether these new modes of governance could lead to shared governance in the EU.
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Legal Evaluation of the Selected New Modes of Governance: The Conceptualization of Self- and Co-Regulation in the European Union Legal Framework
Egle Svilpaite
Since a few years, the European Commission has been engaged in vigorous promotion of alternatives to legislation within the broader agenda of better law-making. The belief is that self- and co-regulation could be successfully employed by the EU alongside the traditional Community Method to achieve better effectiveness, flexibility, expertise in regulation, and to integrate society at large, while at the same time simplifying law-making activities and legislation. Drawing on the Interinstitutional Agreement on Better Law-Making, policies and documents of the European Union institutions, this paper aims to address the degree of the conceptual integration of self- and co-regulation as a new European regulation mechanism into the EU legal framework. The paper starts with a short outline of the evolution of the legal framework for self- and co-regulation in the EU law. It identifies which private practices qualify for the integration into the EU regulatory framework under the definitions provided by the IIA. The paper also seeks to clarify what role – alternative or complementary - self- and co-regulation as alternatives to regulation play with respect to the traditional EU legislation. In the end, the paper addresses the possible implications for the wider debate on the new modes of governance which the integration of self- and co-regulation into the EU regulatory framework might have.
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Meroni Revisited – Empowering European Agencies between Efficiency and Legitimacy
Stefan Griller and Andreas Orator
While decentralisation and delegation of powers is not a novel phenomenon in EU Member States, an increasing trend of creating such entities and disposing them of public authority on EC and EU level can be assessed. European agencies are increasingly recurred to as an institutional answer for demands of increased efficiency, flexibility and visibility. The paper tries to investigate the “delegation issue” by identifying and differentiating the relevance of ECJ case law (Meroni, Romano) and discuss the underlying assumptions of legitimacy. The paper shows that general constraints to transposability of the Meroni doctrine do not exist and that, while it is conceivable that the courts would change their reasoning, Meroni remains “good law”. Following the basic assumption of our first working paper (D32a) that the more “intensive” the instruments a European agency disposes of the higher the necessity to legitimize the powers conferred to it, the authors describe and ponder more generally ways of legitimizing public authority. Following Scharpf’s widely accepted dichotomy of input-oriented and output-oriented legitimacy, two respective attempts to legitimize European agencies shall be presented. The authors would like to submit that the very strict limits to the delegation of powers to agencies as established by the ECJ’s jurisprudence might be loosened to a certain extent without giving up their legal fundaments. The basis for such a development would still be input-oriented legitimacy, in other words, an effort striking the balance between on the one hand side preserving the functioning of the transmission belt securing the implementation of measures which were adopted by representatives of the people, and on the other hand flexibility in the interest of efficient administration.
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Soft Law as a New Mode of Governance: A Legal Perspective
Anne Peters and Isabella Pagotto
After a brief review of the history and typology of soft law in public international law, we approach the concept deductively. We reject the binary view and subscribe to the continuum view. Building on the idea of graduated normativity and on the prototype theory of concepts, we submit that soft law is in the penumbra of law. It can be distinguished from purely political documents more or less readily, depending on its closeness to the prototype of law. Insights gained by the study of public international soft law are relevant to EC and EU soft law despite some differences between those legal orders. European soft law is created by institutions, Member States, and private actors. The legal effects of soft law acts can be clustered according to their relation to hard law. Both practical and normative considerations motivate reliance on soft law. An examination of the soft legal consequences of a disregard of soft law shows that compliance control mechanisms for hard and soft international law are converging. Moreover, some factors of compliance are independent of the theoretical hardness or softness of a given norm. In a legal policy perspective, the proliferation of soft law carries both dangers and benefits. Especially soft acts with a law-plus function do not weaken the respective regimes, but perfect them.
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Democracy and New Modes of Governance in Europe - Some Basic Reflections
Stefan Griller and Elisabeth Rumler-Korinek
Today’s democratic systems are undergoing dramatic transformations. National governments face increasing restrictions in political agenda setting and determining important policy choices. Important decision-making powers are transferred to supranational and international bodies. The focus is often on the problem-solving capacity of such steps. Efficiency replaces democratic mechanisms to a certain extent; ideal democracy is often rejected as unrealistic. At the same time, the intensity of statal interventions in economic and societal affairs is under scrutiny and subject to criticism, in addition to the effects of globalisation. In this paper the authors argue that the basic conceptions of democracy are still important and perhaps especially important in a time of transformation. However, the classical approach based on the idea of political steering through representative assemblies and the hierarchial control of administrations by political leaders faces difficulties in a complex and globalised world. In a second step, the paper analyses the political system of the EU, arguing that the remoteness of European decision making from European citizens is the core of the European democratic deficit and that accountability structures are fragmented. Enhancing parliamentarism at EU level by making the EP a fully fledged co-legislator together with the Council would be an important step to reduce the so-called democratic deficit. Additional measures like strengthening the deliberative components of EU lawmaking are desirable, and specific solutions have to be found for "new modes of governance". It would be important to scrutinise in detail new developments in the fields of privatising public tasks, co-operation strategies between public bodies and private actors, transferring powers to private actors, mechanisms of auto-regulation, and the use of soft law.
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European Agencies: Piecing the Puzzle together - 2nd version of the chapter for joint monograph
Stefan Griller, Andreas Orator
This paper constitutes the second version of the chapter for the joint monograph. The chapter focuses on a stocktacking of European agencies as the chosen new mode of governance. It aims at conceptualizing the ever growing variety of European agencies by developing an approach oriented at the instruments attributed to the agencies and thereby contributes to analysing the Emergence, Execution, Evolution and Evaluation of this new mode of governance.
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“Mapping the Jungle”: A Legal Attempt to Classify European Agencies
Stefan Griller/Andreas Orator
An increasing trend of delegating specific tasks to European agencies, active in most diverse fields and dispersed all over EU territory, is clearly discernible. The provision of impartial and highly specialized expertise, increased transparency and visibility of EU decision-making may account for an explanation of the agency “mushrooming” phenomenon. The authors assume that the Commission’s definitions and typologies of European agencies do not suit the purposes of highlighting the delegation issue. In order to identify common issues and possible problems like delegation under the perspective of democratic legitimacy, it is imperative to develop a coherent and comprehensive concept of a definition and typology of European agencies. An exhaustive stock-taking shows that the vast majority of European agencies disposes of other than decision-making powers. So far, three agencies are empowered to adopt binding decisions (OHIM, CPVO, and EASA). Without closer examination it remains, however, doubtful whether EASA would also be the first agency with binding rule-making authority. The respective typology seems to be suitable to regroup agencies in order to identify common legal problems. Questions of liability, oversight, legal remedies, composition, and, more generally, delegation of powers, and democratic legitimacy play different roles and have different impacts when considering a “simple” information-gathering agency, an agency issuing binding decisions on trademarks, let alone a general law-making agency.
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'Governance' und 'Accountability' - Reine Modeworte oder Schlüsselbegriffe einer Demokratie auf EU-Ebene?
Elisabeth Rumler-Korinek
Die neuere EU-bezogene Demokratiedebatte wird durch zwei Schlagworte, die aus dem Englischen kommen, beherrscht; es handelt sich um die Begriffe governance und accountability. Beide Termini sind äußerst vielschichtig in ihrer Bedeutung und schwer ins Deutsche zu übersetzen - was in Summe oft zu Missverständnissen und Unklarheiten führt. Das Hineinfließen dieser beiden unscharfen Begriffe in die aktuelle Demokratiediskussion bringt zudem die Gefahr einer Verwässerung des traditionellen Demokratieprinzips mit sich. Dieser Aufsatz ist ein Versuch mit Hilfe einer Begriffsexplikation Ordnung in dieses 'Wirrwarr' zu bringen. Darüber hinaus verfolgt die Explikation das Ziel, die demokratiebezogene Bedeutung der beiden Begriffe von ihrer management- und rein legitimitätsbezogenen Bedeutung abzugrenzen sowie auf die oben genannte Gefahr einer Verwässerung des Demokratieprinzips hinzuweisen. (published in: Journal für Rechtspolitik, Verlag Springer, Jg 12, Heft 4, 2004).
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