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Europa Institute Mitchell Working Paper Series |
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| Papers in the series can be browsed and downloaded below. You can also use our RSS feed to keep up to date with new issues. |  |
| 2/2009 | | The Distinction and Normative Interdependence between ‘Government’ and ‘Governance’: The EU as a Regime of Governance | | Marcus Hahn | Abstract
Governing in Europe has taken more open, dynamic and informal shapes than the traditional notion of constitutionally based government conceptually covers. New styles of governing have been summarised by the rather modern notion of ‘governance’ or ‘new governance’. As governance goes beyond legally based styles and methods of governing, a systematisation is necessary. This paper intends to provide a systematic account of the contemporary governance debate, arguing that there is a lively interdependence between governance and government. The emergence of governance is therefore relevant for the understanding and development of constitutional law since governance complements and interacts with constitutionally based styles of governing. Still, however, both styles are clearly distinguishable according to their institutional characteristics. After an introduction, the paper will first consider the difference between governance and government. This will include an argument for the normative character of governance as governance creates inclusive institutional spaces below and beyond European constitutional law. As those spaces are responsive towards the normative preferences of their participants and the normative goals of constitutional settings, a merely descriptive-political notion of governance would not be sufficient. The argument leads to a legal-theoretical view on governance, taking place under, but also beyond, the ‘shadow of hierarchic government’. Those considerations will be applied to governing in the EU, both in the ‘multi-level’ and ‘multi-actor’ dimensions. With the support of some examples of policy making within both dimensions and drawing from the previous theoretical foundation, it will be argued that the EU is a regime of governance in lively interdependence with traditional notions of government. | Keywords
Classic Community Method, (New) Governance, Legitimacy, Normativity, Participation, Policy-making, Shadow of hierarchy | | Download paper (pdf) |
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| 1/2009 | | The Proportionality Principle and Union Citizenship | | Roderic O'Gorman | Abstract
In a seminal article on the treatment of the Citizenship articles by the ECJ, Prof Michael Dougan argues that the Court’s use of the proportionality principle in Baumbast “represents a new development in the Community's system of judicial review” and further, that this new use of proportionality should not be confined to the area of freedom of movement and residence. This paper seeks to investigate the novel use of proportionality in the context of Union citizenship, focusing on the development of the notion of ‘financial solidarity between Member States” which was first enunciated in the Grzelczyk decision. It is submitted that this concept of financial solidarity provides the basis for the use of proportionality review of Community legislation in the field of free movement and residency. The use of financial solidarity is examined across a number of cases and the nature of its relationship to the principle of proportionality is assessed. Finally, the jurisprudence is reviewed to see whether, contrary to Prof. Dougan’s argument, it is possible to confine this new approach to the application of proportionality to legislation surrounding Union citizenship. | Keywords
Union citizenship, financial solidarity, proportionality, social rights, non-discrimination | | Download paper (pdf) |
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| 7/2008 | | Consequences of the UK’s and Ireland’s Opt-Outs in the Area of Freedom, Security and Justice after the Lisbon Treaty | | Felix Netzer | Abstract
Since the Treaty of Amsterdam, the idea of a common internal market of identical shape in all Member States of the EU gave more and more way to the idea of flexible integration. One part of that progress is the UK’s and Ireland’s rights to opt-out. With the entry into force of the Lisbon Treaty, these rights and other instruments of flexible integration like enhanced co-operation and emergency brakes will be changed substantially. The Lisbon Treaty extends the scope of the Schengen Protocol and the Title IV Protocol and introduces the possibility to impose on the non-participating Member State the liability for the practical and financial consequences of an opt-out from measures amending the existing acquis communautaire. Sensibly used, the newly negotiated opt-outs may contribute together with enhanced co-operation and emergency brakes to a more coherent and adjustable progression of EU law. The idea of flexible integration however threatens the Union’s uniform development in every Member State overall in the Area of Freedom, Security and Justice. | Keywords
Area of Freedom Security and Justice, Opt-out, Schengen Protocol, flexible integration, emergency brakes, enhanced cooperation | | Download paper (pdf) |
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| 6/2008 | | Developing an Ever Closer Union between the Peoples of Europe? | | Síofra O'Leary | Abstract
The purpose of this paper is to explore the relationship between the Court's case-law on the original provisions of the EEC Treaty on the free movement of persons and secondary legislation adopted thereunder and its more recent judicial output on EU citizenship. The jurisprudence the Court is in the process of developing on the basis of the Treaty provisions on EU citizenship has borrowed heavily from its existing free movement case-law. Little attention has been paid, however, to whether principles developed by the Court specifically with reference to EU citizenship are feeding back into the case-law on the free movement of persons. The possible justification for and effects of this cross-pollenisation in the case-law on the rights of EU citizens, whether economically active or inactive, are examined. Should a distinction continue to be made, as it once was, between these two categories, or indeed between further sub-categories, of migrants? The paper focuses on recent decisions on migrant workers and on the bulk of the case-law generated by the provisions on EU citizenship to date, case-law which deals with issues relating to rights of residence, the principle of non-discrimination on grounds of nationality and EU citizens' entitlement, on that basis, to social benefits in host Member States or, in the case of returning migrants, in their Member States of origin. | Keywords
Free movement of workers, European Union citizenship, rights of residence, principle of non-discrimination, entitlement to social benefits | | Download paper (pdf) |
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| 5/2008 | | Employment Rights, Free Movement under the EC Treaty and the Services Directive | | Catherine Barnard | Abstract
The market access test adopted by the Court of Justice in the field of free movement of persons has long threatened to undermine national employment law. The decisions in Viking and Laval brought these fears into sharp focus. When the Services Directive was being negotiated, the trade unions made submissions to the European Parliament on the ways of ring-fencing national labour law from the tentacles of the Services Directive. In many ways they were successful. However, their victory may well be pyrrhic: the EC Treaty continues to apply and, as Viking and Laval show, it may well be difficult in practice to justify national employment laws in the strict terms required by the ECJ. | Keywords
Services Directive, national employment law, Viking, Laval, market access, non-discrimination | | Download paper (pdf) |
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| 4/2008 | | The Rule of Law and the EU: Necessity’s Mixed Virtue | | Professor Neil Walker | Abstract
The maintenance of the Rule of Law is a concern for all established polities. For a still emerging polity such as the EU, it has a more fluid and more dynamic significance. If we examine the various functions that the Rule of Law is capable of performing – regulatory, authorizing, instrumental, community-identifying and promotional – all of these hold significant potential in the EU context. At the same time, however, the EU’s effective capacity to exploit that potential is highly precarious. This paper argues that the promise and the vulnerability of the Rule of Law in the supranational context are two side of the same coin. They spring from the same background political circumstances of limited and uncertain ‘polity legitimacy.’ The paper concludes nevertheless that, provided investment in the Rule of Law embraces an awareness of these difficulties and is suitably modest, it still has a vital role to play in the development of a legitimate supranational order. | Keywords
Rule of law, globalization, identity, constitution, authority | | Download paper (pdf) |
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| 3/2008 | | The Consequences of Europe: Multilateralism and the New Security Agenda | | John Peterson, Mark Aspinwall, Chad Damro, Christina Boswell | Abstract
What are the consequences of Europe for global politics? What do the EU and its Member States contribute to security – broadly defined – in the international system? Is Europe succeeding or failing in its stated aim of promoting 'effective multilateralism'? This paper focuses on the role the EU plays in the wider international system. We begin with a review of the current state of the art in the study of Europe as an international actor. We use it as a platform to propose an integrated research programme on the international consequences of Europe generally, and the EU's contribution to multilateralism specifically. | Keywords
European foreign policy, multilateralism, regionalism, security
| | Download paper (pdf) |
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| 2/2008 | | The Accidental Strategist? Military Power, Grand Strategy and the EU’s Changing Global Role | | Michael E. Smith | Abstract
The European Union (EU) is one of the most unusual and widest-ranging political actors in the international system. With its growing range of capabilities, the EU is better equipped than ever before to raise its global political "actorness" to a level nearly equal to its global economic “actorness”. Moreover, these changes in institutional competencies and resources have been increasingly accompanied by various degrees of strategic thinking and planning on the part of EU elites. Given the increasingly wide range of EU policy competencies, and the increasingly complex demands placed on the EU as a global actor from both internal and external sources, this paper attempts to frame these efforts though the conceptual lens of grand strategy. It does so by first arguing that the EU's efforts as a global actor can be interpreted in terms that conform to the three basic components of grand strategy: physical security, economic prosperity, and value projection. Second, the paper analyzes the content of the EU's grand strategic goals under each of these headings, at three levels of analysis: intra-EU, regional (or neighbourhood), and global. Finally, the paper analyzes the EU's implementation of its strategic goals at these three levels in light of two dimensions: whether the EU is a status quo or revisionist actor, and the extent to which its goals conform to those of other key global actors, particularly the U.S. The paper concludes by speculating on the future of the EU as a global actor in light of these considerations. | Keywords
EU foreign policy, grand strategy, coherence, CFSP, ESDP | | Download paper (pdf) |
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| 1/2008 | | US Democrats = the True Europeans? Public Opinion and Foreign Policy | | John Peterson | Abstract
This paper, based on a ceremonial lecture, develops three main arguments. First, we know far more today about public opinion globally than we have ever known before. Second, foreign policy is becoming a less cloistered, elite-dominated arena of public policy. Third, all of this has implications for transatlantic relations. On most questions of values – including those which underpin US foreign policy – Americans are more alike than different from one another, and both exceptional and distinct from Europeans. On questions of policy, the real divide is often not between Europe and America, but between American Republicans and everybody else. One consequence of the polarisation of American society is that American Democrats share many views on policy that are ‘European’ in nature. | Keywords
Public Opinion, Foreign Policy, Transatlantic Relations
| | Download paper (PDF) |
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| 6/2007 | | Old Wine in New Bottles? From the ‘Country of Origin Principle’ to ‘Freedom to Provide Services’ in the European Community Directive on Services in th | | Dr Rachael Craufurd Smith | Abstract
This article considers the fate of the ‘country of origin principle’ in the Commission’s 2004 proposal for a services directive. It argues that although all references to this principle were removed from the final version of the Services Directive, it lives on under a new name ‘freedom to provide services’. The European Parliament was ultimately not prepared to amend this aspect of the Commission’s proposal in the radical way that Evelyne Gebhardt, rapporteur for the Committee on the Internal Market and Consumer Protection, advocated. Instead, the concerns voiced by the European Parliament over the deregulatory forces potentially unleashed by operation of the country of origin principle were addressed through the wholesale exclusion of a range of sectors and activities from the scope of the Directive. Questions regarding the legality of the particular form of negative integration created by the Services Directive remain: in particular, the suitability of Article 47.2 EC as a legal base for the Directive and the compatibility of the ‘freedom to provide services’ principle with Articles 12 and 50.2 of the EC Treaty. | Keywords
Country of origin, negative integration, mutual recognition, regulatory competition, reverse discrimination, positive integration. | | Download paper (PDF) |
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| 5/2007 | | A Regional Rescue of the Nation-State: Changing Regional Perspectives on Europe | | Charlie Jeffery | Abstract
It is now around 20 years ago that regional governments began to try to influence EU decision-making in more systematic ways. They remain, though, largely marginalised by structures of decision-making in the EU which privilege member state central governments. That experience has produced a shift in strategy from one designed, in the early 1990s, to challenge the centrality of the member state to one in the 2000s focused more on instrumentalising the member state to support regional ends. The paper focuses on the articulation of this member state-focused strategy by a group of ‘legislative’ regions during the European constitutional debate in the European Convention and beyond. It embeds that discussion in a wider consideration of shifts in the scale at which public authority is exercised – regional, member state, European – and the ‘multi-level’ interactions between those scales. | Keywords
Multi-Level Governance, Regions, European Constitution, Citizenship
| | Download paper (PDF) |
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| 4/2007 | | The WTO Dimension: The General Agreement on Trade in Services | | Joseph A. McMahon | Abstract
The Services Directive concentrates on the internal market, whereas this contribution examines the external dimension of trade in services. It does this through an examination of the negotiations on services in the multilateral context – the General Agreement on Trade in Services and the Doha Negotiations, and in the bilateral context of the six Economic Partnership Agreements currently being negotiated between the EU and its partners in the African, Caribbean and Pacific countries under the Cotonou Agreement. Both sets of negotiations, if successful, will have a major impact on the provision of services within the EU.
| Keywords
WTO, GATS, Most Favoured Nation Treatment Principle, Economic Partnership Agreements (EPAs), NAFTA, Liberalisation of Trade in Services.
| | Download paper (PDF) |
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| 3/2007 | | Setting the Scene: How did Services get to Bolkestein and Why? | | Bruno de Witte | Abstract
This paper traces the origins of the recently adopted general services directives of the European Union, and addresses the question why such an important piece of internal market legislation was adopted so recently, and anyway well after the 1992 deadline for the completion of the internal market. It argues that piecemeal liberalisation of services has occurred on a regular basis ever since 1992. For each of those specific service directives, the EU institutions decided on the appropriate regulatory mix between liberalisation and targeted harmonisation. This regulatory mix was largely abandoned in the Commission’s original proposal to introduce the country-of-origin principle across all services covered by the directive. It is argued in this paper that this regulatory shift was ill-advised and explains the strong political resistance which the original ‘Bolkestein’ draft encountered from the side of other political and civil society actors, leading to a rather different outcome in the final version of the directive. | Keywords
General services directive, Strategy Paper for Services, Lisbon Council, Horizontal Approach, Targeted Harmonisation, Country of Origin, Mutual Recognition | | Download paper (PDF) |
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| 2/2007 | | Services, Citizenship and the Country of Origin Principle | | Gareth Davies | Abstract
The country of origin principle requires states to apply different legal regimes to companies and persons according to their state of origin. This looks rather like nationality discrimination, contrary to Article 12 EC. It is also fundamentally at odds with one of the central pillars of citizenship, both national and European; equality between citizens. The preference for a relatively unfettered country of origin principle in the Services Directive raises doubts whether the directive has an adequate legal basis, and in any case makes it undesirable. It is an example of economic law that has profound impacts on many non-economic aspects of life. It fragments jurisdictions, and therefore societies. Yet it has been made with only the narrowest of trade interests in mind. It shows the danger of allowing technocracy-led legislation. And nor are the economic arguments even good. If Member States cannot apply their law within their jurisdiction, then their capacity to develop coherent regulatory regimes is undermined, and the competition between these regimes which might revitalise national legislation, to the benefit of economic and non-economic life, cannot take place. The degree of openness of markets is only one part of wealth creation, and so should be part of regulatory competition, not a precondition for it.
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Citizenship, Country of Origin, Regulatory Competition, Article 12 EC, Discrimination
| | Download paper (PDF) |
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| 1/2007 | | Promoting the Consumer Interest in an Integrated Services Market | | Stephen Weatherill | Abstract
The story of this initiative is one of radical change rejected. When first presented by the Commission in 2004, it was heralded as a means to re-distribute regulatory competence in favour of home States to the exclusion of host States, thereby to intensify cross-border competition in the notoriously fragmented and inefficient services sector. It has finished up, in its 2006 version, as little more than consolidation of the existing law and exhortation to make it work better in practice. This has been an exercise in making a molehill out of a mountain. | Keywords
Lisbon Council, horizontal approach, targeted harmonisation, country of origin, mutual recognition | | Download paper (PDF) |
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This Project was funded by the British Academy |
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