Carlo Panara

Changing the guard—The price of democracy: Lessons from the Arab Spring on constitutionalism

In 2010 the self-immolation of a Tunisian street vendor—Mohamed Bouzazi—unwittingly encapsulated the frustration of corruption and heavy-handed administrative structures by the vast bulk of Tunisia’s populace. What would have been an isolated act and a country specific phenomenon morphed into potent totemic symbolism for Arab citizenry in coming weeks. Civilian unrest on the streets rapidly toppled the Tunisia government generating a political earthquake across the Arab World. The perception in the liberal West and elsewhere has been that Islam is incompatible with democracy. This Chapter while taking into account the different trajectories encapsulated by the Arab Spring seeks to illustrate that constitutionalism informed by principled governance is a process as well as a goal. In particular it cautions against the pitfalls of implementing monolithic liberal preferences for a “corporatist” State, followed by two illustrative case studies focusing on Libya and Egypt—two examples which illustrate the pitfalls of modularised political/constitutional templates. Keywords:Arab Spring; constitutionalism; corporatist; democracy

Another Defeat for the Principle of Secularism: Recent Developments on the Display of the Crucifix in Italian Courtrooms

The Italian Court of Cassation recently sanctioned the dismissal of a judge who refused to hold hearings due to the presence of crucifixes in the courtrooms. This ruling (taken together with the ruling of the Grand Chamber in Lautsi) marks a significant defeat for the principle of state secularism.

Multi-level governance in the EU and EU democracy: Democratic legitimacy, democratic accountability and transparency of the European offices of the English local authorities in Brussels

ABSTRACT This paper seeks to examine the role and functions of the representative offices of English local authorities in Brussels by considering the democratic legitimacy (i.e. linkage to elected councillors or mayors), accountability and transparency of the office’s activities. The study demonstrates that the offices differ in their governance arrangements and funding, which has a direct impact on the approach to democratic legitimacy and accountability, noting that those offices which rely most heavily on direct funding from a single authority or a combined authority have the closest links to the authorities concerned. The transparency of the offices varies considerably, with clear distinctions between offices that are creatures of contract or where offices are an emanation of the authority concerned. The pattern here is less dependent on the pattern of funding of the office and depends more on the availability of resources and the approach adopted by the office itself.

The Contribution of Local and Regional Authorities to a 'Good' System of Governance within the EU

The participation of the local and regional authorities in EU processes should be promoted and enhanced by the EU, the Member States and the same local/regional authorities. These should perform a stronger role in the constitutional architecture of the EU. In this way they would contribute more effectively to a limited, balanced and legitimate system of governance based on constitutionalism within the EU. The participation of sub-national authorities in the EU reconciles European integration with the multi-level systems of governance of the Member States; strengthens the legitimacy of EU and national (EU-related) decision-making processes; and reinforces the legal limitation of the decision-making power of both Union institutions and national authorities.

Multilevel Governance in the EU

In the previous chapter, it was shown that the EU is a ‘multilevel system’, of which the sub-national authorities are an integral part. The existence of such a ‘multilevel’ and ‘multidimensional’ EU requires the development of principles and tools coordinating the action of the different levels of government. This explains why concepts such as multilevel governance and subsidiarity are increasing in importance in the EU. Whilst most studies of multilevel governance deal with this concept from a political science or economic perspective, legal scholars use the same notion as a descriptive formula illustrating the existence and role of the sub-national authorities in the EU. However, multilevel governance has never been studied as a legal concept, nor have its constitutional foundation, rationale and legal consequences been explored. For the first time, this chapter analyses multilevel governance in the EU, specifically from a legal perspective. It will be argued that multilevel governance is a legal/constitutional principle stemming from the European ‘constitutional composite’. This principle is ‘procedural’ in that it commands a ‘method of governance’ consisting in the involvement of sub-national authorities in the EU decision-making process and in the implementation of EU law/policy (Sect. B). In this way, multilevel governance contributes legitimacy to the participation of the Member States in the EU and to EU decision-making activity (Sect. C).

Introduction: A Legal Study of Multilevel Governance

The notion of ‘governance’ is typically used to indicate a new mode of governing that is distinct from the hierarchical model of the past. It is a cooperative mode of governing where non-state players are involved in authoritative decision-making in the public sphere through public or private networks. Significantly, Schmitter and Kim write that ‘MLG can be defined as an arrangement for making binding decisions that engages a multiplicity of politically independent but otherwise interdependent actors – private and public – at different levels of territorial aggregation in more-or-less continuous negotiation/deliberation/implementation’ (emphasis added). Accordingly, in the phrase ‘multilevel governance’, the adjective ‘multilevel’ refers to the increased interdependence between different political arenas (national, sub-national, supranational), whilst the term ‘governance’ signals the growing interdependence between public authorities and nongovernmental actors at various territorial levels. Aligned with the Committee of the Regions’ 2009 White Paper on Multilevel Governance, this study focuses on the role of public authorities that are expression of a territorial community (territorial authorities), that is, according to the terminology used by the Italian legal scholar Massimo Severo Giannini, those public authorities (including the state) that are ‘enti esponenziali di collettivita’ (‘exponential entities’, or better ‘representative institutions’, of territorial communities).

The Sub-national Dimension of the EU

The emergence of the ‘Third Level’, i.e. the sub-national dimension of the EU, raises the question of the status of the sub-state authorities in the EU. Are these authorities full European players in their own right (i.e., with their ‘own’ rights and duties in the EU multilevel system), or is the EU a ‘union of states’ in which only the Member States (and their citizens) are subjects of rights and duties stemming from the EU multilevel system? The Union is not a State, and as such it does not have a constitution comparable to a State constitution, even though the ECJ regards the Treaties as the ‘constitutional charter’ of the Union. The creation of the Communities and later of the Union placed a further echelon of power above the Member States. One of the results of European integration is that the European citizen nowadays is subjected to the authority of the State and also to the authority of another entity, the Union, above the State, which is responsible for certain policy areas. Whilst until the 1950s (or maybe, more realistically, until the Single European Act of 1986) the exercise of public power had to abide fundamentally by only one constitution in each Member State (the State constitution), today the State constitution regulates only the State power. The authoritative decision-making of the Union is largely regulated by another, albeit coordinated with the former, ‘tier’ of constitutional law, i.e., EU primary law (the Treaties). This landscape suggests that there must be a degree of homogeneity between the State constitutional law and the EU primary law. Only States with a liberal-democratic setting, market economy, respectful of human rights, can join and remain members of the Union. The coexistence of multiple layers of authority (State and supranational) and of multiple constitutional levels corroborates the idea that the European constitutional space is a constitutional mosaic resulting from the EU and the Member States’ constitutions.

The Principle of Subsidiarity

The driving idea of subsidiarity is that public functions should be exercised as close as possible to the citizen. Only if the ‘closest’ authority is not in a position to perform a function or to do it effectively will this function be allocated to a ‘higher’ level of government. Subsidiarity is based on the assumption that ‘closer’ authorities are better suited to respond to certain social demands stemming from their community. Only those demands that are not limited to a given community or that require action on a wider scale or that can be better fulfilled by another authority shall be exercised by other (higher) tiers of government. Ideally, each, ‘higher’, tier of government should only perform a ‘subsidiary function’ in relation to other tiers of government ‘closer’ to the citizen.

Summary Thoughts and Agenda for Future Research

Sub-national authorities are an integral part of the European edifice and enjoy rights and duties in accordance with the asymmetric constitutional mosaic resulting from the combination of EU and domestic constitutional laws (multilevel constitutionalism theory). A number of elements corroborate this submission:

The Regional Responsibility for European Integration: Baden-Württemberg (Germany), Lombardia (Italy), Merseyside (UK)

In this chapter, I will address the constitutional problem of regional and local participation in EU lawmaking and policymaking from a different perspective. In the previous chapters, I followed the traditional ‘top-down’ approach consisting of looking at the constitutional duty of the EU and of the Member States to facilitate regional and local involvement in the EU lawmaking and policymaking. In this chapter, I will adopt a ‘bottom-up’ approach looking at what the sub-national authorities themselves are constitutionally required to do to perform a role in the EU. A useful concept in this context is that of ‘responsibility for European integration’ (Integrationsverantwortung) created by the German Federal Constitutional Court, which refers to the necessary involvement of the national legislative bodies in all the decisions broadening the responsibilities of the EU. The scope of the notion of ‘responsibility for European integration’, however, can be further expanded. Martin Nettesheim suggests that this concept ‘implies that the organs of an organisation whose self-rule is limited by supra-state decision-making, must engage in the exercise of supra-state authority in a manner which suits the democratic principle (idea of compensation)’. In this way, he widens the scope of the concept both horizontally and vertically. On the one hand, ‘responsibility for integration’ is not limited to the transfer of powers to the EU and comes to embrace potentially the entire spectrum of Union action (horizontal dimension). On the other hand, the ‘responsibility’ is not confined to central organs of the state; it also applies to the Lander, the sub-national level (vertical dimension).