Centre for the Study of European Contract Law

The new institutional framework of subsidiarity is expected to lower the EU democratic deficit. In contrast to this optimistic scenario, I argue that the success of subsidiarity depends on its capacity to unravel the EU's ‘substantive’ democratic deficit. Linked to the Union's functionalist institutional design, this dimension of the democratic deficit has developed due to two limitations of EU‐level politics. First, the EU functionalist design has narrowed the range of topics open to democratic debate (horizontal substantive democratic deficit). Second, the proportion of the debate which we could genuinely describe as being political is declining as a result of the de‐politicisation of EU goals, underpinned by a massive accumulation of allegedly apolitical expert knowledge (vertical substantive democratic deficit). Against this background, I contend that by involving actors relatively alien to the EU functionalist thinking, subsidiarity could offer an opportune ground for the re‐politicisation of democratic ‘blind spots’ in EU policy making.

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU’s functional institutional design; second, the processes of post-national juridification; and third, a more contingent influence of ideas. In the interplay of those
three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratization of the EU.

Affordability is a new “alien” concept penetrating the field of contract and consumer law as one of the obligations related to the provision of “universal services” or “public service” in the context of services of general economic interest. Affordability becomes an important element of the European social model and its constitutional dimension will be confirmed by the Treaty of Lisbon and the Charter of Fundamental Rights of the European Union (EU). The major European Commission policy tool for ensuring the Affordability of Energy Supply is, on the one hand, functioning competition, which should bring about reasonable prices in general, and on the other hand, regulation targeted at so-called vulnerable consumers. First tested in the UK, it was later spread mainly by the requirements of the Second Energy Package in other Member States (MS). The Third Energy Package (to be implemented by March 2011) further develops this idea and clarifies the set of obligations that the protection of consumers and ensuring the Affordability of Energy Supply require in the understanding of the EU legislator. One could speculate to what extent this is a reaction to the fact that some MS and, in particular, the new MS did not implement the consumer protection requirements of the Second Energy Package, but rather opted for very different regulatory strategies. This paper will examine different regulatory strategies employed in four MS (the UK, France, the Czech Republic, and Slovakia), with special focus on the situation in the two new MS, in order to respond to the question as to whether these different regulatory strategies provide what is promised, i.e., affordable energy for all.

The Transatlantic Trade and Investment Partnership (TTIP) is an exceptional trade agreement – not only by the ambition of its creators, but also by the public response that came in its wake.

The disagreement over the TTIP ranges from the breadth of its economic benefits, over the possible democratic impact of its institutional structures, ending with its impact on particular public interest concerns such as public health and environment. This workshop aims to unpack the core issues around which the debate about the TTIP revolves: TTIP’s rationale and justification, the role of its institutions and finally some of the criticized substantive (sectoral) consequences.

Register at:
http://www.accesseurope.org/agenda/content/workshops/2015/02/why-ttip.html

This paper analyses the possible impact of TTIP’s Regulatory Cooperation on the implementation of the precautionary principle in the EU. The European Commission argues that regulatory cooperation will not impinge on the application of the precautionary principle because, first, it does not change the legislative framework of precautionary legislation and, second, the ‘right to regulate’ will be safeguarded by the TTIP's horizontal chapters. In this paper I argue, however, that these guarantees are insufficient. Given the methodological and institutional constraints presented by the TTIP’s institutional design, regulatory cooperation will undermine the precautionary approach to regulation in the longer run.

This paper analyses the possible impact of TTIP’s Regulatory Cooperation on the implementation of the precautionary principle in the EU. The European Commission argues that regulatory cooperation will not impinge on the application of the precautionary principle because, first, it does not change the legislative framework of precautionary legislation and, second, the ‘right to regulate’ will be safeguarded by the TTIP's horizontal chapters. In this paper I argue, however, that these guarantees are insufficient. Given the methodological and institutional constraints presented by the TTIP’s institutional design, regulatory cooperation will undermine the precautionary approach to regulation in the longer run.

This paper analyses the possible impact of TTIP's so-called Regulatory Cooperation on the implementation of the precautionary principle in the EU. The European Commission argues that regulatory cooperation will not impinge on the application of the precautionary principle because, first, it does not change the legislative framework of precautionary legislation and, second, the right to regulate will be safeguarded by the TTIPs horizontal chapters. In this paper I argue, however, that these guarantees are insufficient. Given the methodological and institutional constraints presented by the TTIP's institutional design, in the longer run regulatory cooperation will undermine the precautionary approach to regulation in the EU.

The Transatlantic Trade and Investment Partnership (TTIP) may or may not bear fruit in its current incarnation, but it certainly teaches us crucial lessons regarding the institutional dynamics of market integration beyond the state. I argue that the TTIP’s so called ‘regulatory cooperation’, in principle a mere mechanism for ‘discussion’ and ‘exchange’ between regulators, would have a profound impact on the regulatory culture across the Atlantic. I make this argument in three interrelated steps. First, building on insights from constitutional law and political science, I outline an analytical framework for the study of rule-making institutions beyond the state. Second, I analyze the TTIP through the lens of this framework, illustrating the mechanisms through which its model for regulatory cooperation could reform the regulatory culture in the EU. Third, I argue that this change in the EU regulatory culture would have been neither an accident, nor a result of a US-led hegemonic project. Instead, the TTIP’s regulatory cooperation is a part of the EU’s internal political struggle, intended ultimately to re-balance not only powers between the legislative and the executive in the EU, but also within the EU’s executive branch itself.

Lacking democratic foundations, the EU authority has been founded on output legitimacy: to deliver (economic) prosperity mainly by means of rational governance. Yet currently, the austerity policies present the poster-example of irrational governance. While the contributors to this volume have shed light on the limits of EU to deliver rational output by means of law and legal rationality, I argue in this paper that – without democracy - the EU also can not deliver desired output by means of knowledge and technical rationality. I start the argument by sketching the relationship between democracy and knowledge in modernity. I claim that the embeddedness of expert institutions in democratic institutional setting plays an important epistemic role. Both constraining and steering knowledge production by expert bodies, democratic embeddedness contributes to the production of more reflective, socially inclusive knowledge. The EU’s failure to instantiate the channels for democratic input into its knowledge production is one of the root causes of its crumbling output legitimacy: the creation of many (internal) peripheries that can not participate in the projected futures. I turn afterwards to compare the three recent challenges to the EU knowledge governance - Brexit, TTIP, and Austerity – which may be seen as attempts to reclaim the democratic responsiveness of EU technocratic rule. The strategies of exit and voice used by various actors have however not been available across all three examined cases: in the Greek tragedy, the contestation of austerity has ended with subjugation. The subjugation ultimately appears as the mirror image of ‘rational’ governance unaccompanied by inclusive democratic process.

Social democracy has been – traditionally – in favour of internationalization. In overcoming nationalism, that internationalism symbolized both the openness of social democracy to people and to (economic) progress. Yet, the faith in internationalization and liberalization may have hit its boundaries with the new ‘mega-regional’ trade agreements, such as the TTIP (a free trade agreement with the US), CETA (a free trade agreement with Canada) or JEFTA (a free trade agreement with Japan).

Here we discuss what should be the social democratic agenda vis-à-vis these new mega-regional trade ‘deals’. When unpacked, instead of delivering on the promise of openness and progress, these trade agreements may instead exacerbate exclusion. They shift many deeply contentious political questions outside the scope of democratic politics onto the domain of international law. They put in place a number of bodies that are neither representative nor democratically accountable. Finally, and quite ironically, the economic benefits they promise are at best marginal (see this ETUI paper). On these grounds, social democracy should oppose mega-regional trade deals, at least in the form currently pursued.

Yet does this mean that social democracy should abandon internationalization as a project? The response is a resolute no – it should not, and it cannot. Many of the processes and transformations taking place on the international plane (such as climate change, or migration) can hardly be reversed. Abandoning internationalization, as a project, would mean leaving such global processes to current (market) dynamics, amplifying the inherited problems of the ecologically and socially unsustainable economic model. Rather, social democracy should explore different forms of internationalization. Such projects could be built around different goals than trade liberalization and investment, for instance sustainable development. Furthermore, social democracy should exert pressure to integrate discussions about climate, migration, tax, development with those on mega-regional trade deals. It should also focus on combating reductionist neoclassical narratives about the costs of regulations by highlighting their positive aspects. Most importantly, social democracy should promote very concrete new frames of global action (e.g. ‘online trust’ instead of ‘data flows’ etc.), proposing thus credible alternatives to linear narratives of unhampered free movement.