Damian Chalmers

'Food for Thought': Reconciling European Risks and Traditional Ways of Life

The European Food Safety Authority marks a new stage in European Union governance. It has no direct regulatory powers, but is entrusted with developing norms of food safety, which are to inform the material content of EC food law. The hope is that its independence and expertise will restore popular confidence both in the EU and in the food we eat. The irreducible nature of lay-expert conflicts about hazard suggests that a more likely scenario is that such disputes become recast as opposition to EC law. Such conflict is most likely to manifest itself in national courts through challenges to or non-compliance with EC law. The current principles for resolution of such conflicts are hopelessly outmoded. The article, therefore, argues for a constitutional resettlement, which sets out principles germane to the nature of the EC regime, namely that of a multi-level regulatory State. It argues for a new defence of regulatory balance. Individuals could argue for the disapplication of EC norms where these violated a valued local regime which had given consideration to the issues raised in the EC legislation and whose positive value to its subjects exceeded its negative impact on the interests protected by the EC legislation.

The Reference Points of EU Judicial Politics

Explanations of the dynamics of EU judicial politics must also account for its incidence. Incidence relies on a relationship between three arenas – those for norm-setting, litigation and judgments – with each conditioning the possibilities for action in the others. Through a study of all 2007–2009 preliminary rulings we find two predominant dynamics here. ‘Patrol norms’ dedicated to securing common policies give rise to low salience judgments dominated by transnational enterprise and national administration litigation. ‘Thickly evaluative norms’ are concerned with articulating certain values. Dominated by litigation by domestic undertakings and non-commercial actors, these norms generate the Courts most salient judgments.

The Reconstitution of European Public Spheres

The strength of participation in its political processes has increasingly become the yardstick against which the legitimacy of the European Union is measured. Yet experiments in deliberative and participatory democracy suggest that their practice invariably falls short of their lofty ideals. A reason is their failure to consider the process of communication itself. As understanding of communication is constituted through a number of surrounding communicative contexts, communication, per se, can never be said to be good or bad. More important is a constitutional framework for communication which provides the contexts—performative, institutional and epistemic—that enable communication to contribute to particular, desirable ideals. This piece will argue that a deliberative approach to European governance involves a process of justification in which the three practical tasks of the European Union—polity-building, problem-solving and the negotiation of political community—are debated and resolved around the four values that have underpinned the development of politics as a productive process—those of transformation, validity, relationality and self-government. The organisational reform required for this involves a wide-ranging revisiting of the structures of the European polity.

The positioning of EU judicial politics within the United Kingdom

ion law refers to generic sets of situations and comprehensiveness no constraints will be recognised, formally, on legal authority other than those imposed legally. The need for law to stabilise expectations also leads any legal decision to couch itself by reference to past practice and to be non-falsifiable. That is to say that where there is a deviance between a legal norm and behaviour, it is the latter that is to be regarded as legally at fault. Furthermore, the requirement upon judges to couch decisions using binary legal/illegal distinctions precludes them from reaching certain outcomes, such as constructing negotiated settlements. Institutional Capabilities for Conformity as the Central Constraint on

Brexit and the renaissance of parliamentary authority

With the promised return of Parliamentary powers, Brexit is supposed to be a fillip for representative democracy. There is a significant danger that will not be so. EU membership weakened the conditions for representative democracy within those fields governed by the EU. Whitehall will almost be the central player in the reform of EU-derived law. And policy styles are being developed which marginalise rather than consolidate UK legislatures in these fields. Restoration of representative democracy will require a realistic re-evaluation of its virtues so that these can be protected and a re-imagination of the possibilities and limits of parliaments within such a landscape.

Sharing the Eurocrats’ dream: a demoicratic approach to EMU governance in the post-crisis era

We do not need to master the skills of Inception’s hero, Leonardo DiCaprio, to understand the Eurocrats’ dream. The dream involves flying over the plains, rivers and mountains of Europe on a constant mission to monitor and battle the dark shadows. In other words, to protect the European common good entrusted to them by the Treaties against the uncertainties of globalization, the selfishness of markets and the short-termism of politics. Europe’s citizens often seem to be on the same wavelength, with their huge distrust of politicians, abandonment of political parties and worries about the fate of their children. Eurocrats are here to make Europeans’ dreams of security and prosperity come true. Why then should we remotely wish to tamper with the Eurocrats’ dream? The reasons go back a long way indeed, we believe, to the foundational moment itself: our Eurocrats’ rationalization of their desire to ‘govern at a distance’. One could argue that the temptation to govern at a distance was a trope inherited from good old imperialism of yesteryear (Behr 2015, Nicolaïdis and Fisher Onar 2015). But in its post-war functionalist guise, such rationalization had much going for it. Weber had famously heralded organized bureaucratic hierarchies as the most efficient and rational way to organize human cooperation, maintain order, maximize efficiency and eliminate favoritism. Functionalists saw peace as only attainable by

The limits of collective action and collective leadership

While a number of political leaders, as well as some scholars and opinion makers, argue that the current crisis of EU-style integration can only be overcome by having “more Europe”, this paper argues that there are intrinsic limits to the method integration followed since the founding treaties. Although the limits to collective action have been known to political economists since the pathbreaking contribution of Mancur Olson in the 1960s, the basic conclusions of this author have generally been ignored by students of European integration. Olson argued that the larger the group, the further it will fall short of providing an optimal amount of a collective good--such as political or economic integration. If larger groups/organizations do in fact exist this is not because of the collective good they provide, but because of the power of coercion they may enjoy (as in the case of the state) or because of selective (positive or negative) incentives that voluntary organizations may provide. A well-known example of selective incentive in the context of the EC/EU is the Common Agriculture Policy, a positive incentive offered to France for its support of European integration. Unfortunately, the larger the group the more difficult it becomes to provide suitable selective incentives to all the members of the group. The availability of such incentives is limited, in case of the EU, not only by the size of the group but also by the socioeconomic heterogeneity of its members. An even more basic problem in organizing and maintaining socially and economically heterogeneous groups is due to the fact that the members are less likely to agree on the exact nature of whatever collective good is at issue or on how much of it is worth “buying”. In the EU context we have the traditional cleavage between the countries that wish to limit integration to the economic sphere and those that support also political integration. Consensus on such matters is especially difficult because the defining characteristic of collective goods—that they go to everyone in the group if they are provided at all--entails that all the members of the group have to accept whatever level and type of the good is provided. More recently it has been shown that also collective ownership is subject to various limitations—an intuitive result which is also relevant in our case, since it is reasonable to consider the member states as the collective “owners” of the EU-where ownership, as the term is conventionally used, has two essential attributes: the exercise of formal control and the receipt of residual benefits. The limitations of collective leadership, on the other hand, have been known for a long time. Only an “hegemon” could overcome these intrinsic limitations of collective action, but no member state--not even Germany, the only conceivable candidate—is willing to play such a role. The paper concludes that it is no longer possible to think of European integration as a collective good; rather it has become a “club good”, i.e., a public good from whose benefits countries may be (or may wish to be) excluded. The point is that as an association of states expands becoming more diverse in its preferences and its socioeconomic conditions, the cost of uniformity in the provision of collective goods can escalate dramatically. The economic theory of clubs (James Buchanan) predicts an increase in the number of voluntary associations to meet the increased demand of goods more precisely tailored to the different requirements of various subsets of more homogeneous states. Aggregate welfare is maximized when the variety in preferences is matched by a corresponding variety of institutional arrangements. The economic theory of clubs provides a good conceptual foundation for the functional (rather than territorial) approach to supranational governance—an approach advocated by David Mitrany in the 1940s and by Ralph Dahrendorf in the 1970s. The paradoxical logic of collective action t is commonly assumed that if all the members of a group agree on some common interest, then there would be a tendency for the group to seek to further this interest, i. e., the group would also act in a self-interested or group-interested manner. Mancur Olson’s important contribution to political economy has been his proof that this familiar assumption is basically wrong (Olson 1971). This proof depends on the argument that the members of the group will not provide as much of the collective good as it would be in their common interest to provide. Such tendency towards suboptimality is due to the fact that by definition a collective good, such as economic integration, is available to all members of a group once it has been provided by any member. Since an individual member gets only part of the benefit of any expenditure he makes to obtain more of the collective good, he will discontinue his purchase of it before the optimal amount for the group as a whole has been obtained. In some small groups (like the original Six of the 1951 Paris and 1957 Rome Treaties) one or two members may find that they would be better off if the collective good were provided--even if they had to pay the entire cost of providing it themselves--than they would be if it were not provided at all. In such situations there is a presumption that the collective good will be produced. Thus in small groups, where each member gets a substantial portion of the total gain simply because there are few others in the group, a collective good can often be produced by the voluntary, selfinterested action of the members of the group. Actually, the greatest likelihood that a collective good will be provided occurs in the case of small groups of members of unequal size (again, the situation of the original Six); for the greater the interest of any single member in the collective good, the greater the likelihood that this member will get such a significant portion of the total benefit from the provision of the good that she will gain from seeing that the good is produced, even if she I has to pay the entire cost himself. Even in the smallest groups, however, the members of the group will not provide as much of the good as it would be in their common interest to provide. This less than optimal provision of the collective good is again due to the fact that, by definition, a collective good is such that other members of the group cannot be kept from consuming it once any group member has provided it. The logic of collective action operates not only in groups of individuals but also in the case of states. An interesting example of this is provided by the well-known historian Heinrich August Winkler in the first volume of his Geschichte des Westens (2012: 760). According to the 1821 “federal war constitution” (Bundeskriegsverfassung) of the German confederation, no state was allowed to participate with more than three army corps to the confederate army. This rule was dictated by the desire to avoid even “the appearance of the supremacy of one member state over the other members of the Bund”. The Prussian state was a member of the Bund, but important Prussian territories--East and West Prussia, and Posen—were not part of the German confederation. For this reason the Prussian state was allowed to have nine, rather than three, army corps. Because of this, the other states of the Bund could assume that in case of a foreign threat Prussia would mobilize its entire military might. As a consequence they kept their contribution to the common defence well below the limit allowed by the federal constitution. In sum, the size of the group is a key element in the logic of collective action, and “the larger the group, the further it will fall short of providing an optimal amount of a collective good” (Olson 1971: 35; italics in the original). Olson concludes that if larger groups/organizations do in fact exist this is not because of the collective good they provide but because of the power of coercion they may enjoy (as in the case of the state) or because of selective (positive or negative) incentives that voluntary organizations may provide. A selective incentive is one that applies selectively to the individuals (or subgroups) depending on whether they do or do not contribute to the provision of the collective good. A well-known example of selective incentive in the context of the EC/EU is the Common Agriculture Policy, a positive incentive offered to France for its support of European integration. Unfortunately, the larger the group the more difficult it becomes to provide suitable selective incentives to all the members of the group. The availability of such incentives is limited, in case of the EU, not only by the size of the group but also by the socioeconomic heterogeneity of its members. An even more basic problem in organizing and maintaining socially and economically heterogeneous groups is due to the fact that the members are less likely to agree on the exact nature of whatever collective good is at issue or on how much of it is worth “buying”. In the EU context we have the traditional cleavage between the countries that wish to limit integration to the economic sphere and those that support also political integration. Consensus on such matters is especially difficult because the defining characteristic of collective goods—that they go to everyone in the group if they are provided at all--entails that all the members of the group have to accept whatever level and type of the good is provided. It follows that political entrepreneurs who attempt to organize collective action will be more likely to succeed if they strive to organize relatively homogeneous groups. Thus some of the most serious problems the European Commission is experiencing today, particularly in the area of policy harmonization (see for example Piris 2011: 812), originated in the “big bang” enlargement of 2004-7—an enlargement which the Commission, paradoxically, eagerly supported. The

European Union Law: EU Law and Non-EU Nationals

INTRODUCTION This chapter considers the treatment of non-EU nationals by EU law. It is organised as follows. Section 2 looks at the central Union competences, Articles 77-9 TFEU, which provide for EU law to be adopted in the fields of border checks, asylum and immigration respectively. These provisions are subject to the Protocol on the Schengen Acquis. The Schengen Acquis is composed of the measures adopted to implement the 1985 and 1990 Schengen Conventions, which provide for common external frontiers and visa, immigration and asylum policies. Ireland and the United Kingdom are not signatories to these Conventions. Measures developing the acquis should be adopted under the Protocol, with Ireland and the United Kingdom only participating with the agreement of all the other Member States. If the measure is not governed by the Protocol on the Schengen Acquis, those two states have a further Protocol, the Protocol on United Kingdom and Ireland, which gives them the right to decide whether to participate in the legislation. There is a further Protocol on Denmark which provides that any measure adopted in this field will only bind it as a matter of international law. Section 3 considers the central themes governing this field. EU law on non-EU nationals forms part of the Area of Freedom, Security and Justice. This Area is seen as contributing to a wider European way of life, with the Union measures on non-EU nationals regulating the latters perceived contribution and threat to this way of life.

Private power and public authority in European Union law

European union law is currently undergoing a transformation as profound as that forged by the ‘1992’ project which prompted the article by Joseph Weiler of that name. If that project was an intensification and broadening of EC law making, this new transformation is altogether of a more subtle nature. On the one hand, there is a commitment to a drastic reduction in the number of EU laws on the statute book. About one third of Union legislation is to be repealed, recast, modified or simplified. Alongside this, one finds an expansion of pan–European norms. In 2003, the main European standardisation body, CEN, adopted 888 standards. This one year’s work equated to more than were adopted in the whole period prior to the end of 1992. One view might be that this is some ‘retreat by the state’. These types of norms are developed by private actors, and maybe a simple privatisation of the legislative process is taking place. This explanation is unconvincing, however. Studies in other fields have found private law making to be accompanied by more pervasive and further reaching forms of administrative intervention.

Gina Miller and the last Gasp of Parliamentary Sovereignty

Theresa May stated that the Brexit process was about the government carrying out what it believed the people wanted. Gina Miller stated that the Brexit process was for Parliament to decide. Fourteen of the United Kingdom’s most senior judges listened. Eleven agreed with Gina Miller. And the other three did not agree with Theresa May. They stated that the British government could only trigger Brexit without fresh legislation because Parliament had provided earlier authorization for the government to pursue Brexit, if it is so wished, in the original 1972 European Communities Act. The reason for this overwhelming win for Gina Miller was that eleven judges, three in the lower Division Court and eight in the UK Supreme Court, thought the case revolved around a simple constitutional question. Could the executive put in question a considerable body of law, realistically over 30% of all UK law, which had been sanctioned by Parliament by triggering Article 50 TEU? And they rightly said ‘no’. The United Kingdom is not a dictatorship. The tenor of the majority decision was also that any Parliamentary authorization of the executive to abrogate rights legitimated by the former must also be very clear. And that seems right as well in a parliamentary democracy. Parliament should only allow others to curtail rights sanctioned by it in the most explicit language. Yet was this what Theresa May was concerned about? Turning the United Kingdom into a dictatorship? Of course, not. The judgment went the way it did because it could not take into account another important constitutional narrative.