Beijing Law Review
2013. Vol.4, No.1, 8-19
Published Online March 2013 in SciRes (
Copyright © 2013 SciRes.
Exploring Possible Encounters between New Governance, Law
and Constitutionalism in the European Union
Samantha Velluti
School of Law, University of Lincoln, Lincoln, UK
Received October 26th, 2012; revised November 27th, 2012; accepted December 5th, 2012
The current European Union (EU) is a highly institutionalized template for integration, equipped with a
whole spectrum of different modes of regulation ranging from “hard” to “soft” which, particularly in re-
cent years, have been pragmatically combined together to develop a hybrid and multi-tiered EU system.
The dramatic expansion of the EU’s governance tool-kit and the variety of objectives and internal struc-
tures of these EU governance tools have relied on a non-clearly identifiable mix of legal and policy in-
struments. These changes in EU governance pose a challenge to the rule of law and its main tenets and do
not sit well with the jurisprudence of the Court of Justice of the European Union (CJEU) because they
occupy an unsettled constitutional space. This space is characterized by a range of possible encounters
between constitutionalism and governance. In this context, New Governance forces European scholars to
rethink the way the EU system operates and the way Europeanization is being pursued. The paper ex-
plores the relationship between New Governance, law and constitutionalism and the problems concerning
their conceptualization and further understanding. Its main argument is that a stronger dialogue between
what are known as “soft” and “hard” regulatory mechanisms may lead to a hybridized EU governance re-
gime in which all governance tools are designed to achieve the same set of goals.
Keywords: EU Constitutionalism; Law; New Governance; Hybridity; Courts and National Parliaments
“The future of the law in the twenty-first century lies in
the mutant forms and experiments which prove to be fit-
test and survive the demands of tomorrow” (Lobel, 2004).
Over the last decade the EU has witnessed an increased reli-
ance on the use of experimental and collaborative forms of
governance other than supranational legal regulation in differ-
ent policy domains, with techniques and enforcement mecha-
nisms ranging from relatively “hard” to “soft” (Szyszczak,
2006). Soft law techniques and mechanisms and policy coordi-
nation processes as a means to advance European integration is
not a new phenomenon. Soft law encompasses a variety of
processes the common feature of which is that although they
may have normative content they are not formally binding.
Independently of whether soft law provides the “right” answer
to many intractable problems of regulation and implementation
in the EU, in the current post-national setting the very reasons
for which there has been a significant increase in its typology
and use in many policy domains not only put to the fore the
limitations of a traditional meaning and use of law (thus re-
quiring re-evaluation) but also, and equally, explain the devel-
opment of new conceptions of legality. While the Treaty of
Amsterdam (ToA) has provided a legal basis for the develop-
ment of a uniform regulation of social policy at European level,
a series of questions concerning implementation, compliance
and legitimacy have arisen as a consequence of the greater re-
liance on experimental and collaborative forms of governance.
Since the launch of the Lisbon Agenda, New Governance
practices and processes have reached a period of consolidation.
Some have obtained full recognition with the insertion of new
provisions in the Treaty on the Functioning of the European
Union (TFEU) further to the entry into force of the Treaty of
Lisbon (ToL), namely Articles 2(3), 2(5), 5 and 6 TFEU re-
garding economic and employment policy coordination and
supporting, coordinating and supplementing measures to the
actions of the Member States. In addition, the so-called “Hori-
zontal Social Clause”, Article 9 TFEU, provides that “in defin-
ing and implementing its policies and activities, the Union shall
take into account requirements linked to the promotion of a
high level of employment, the guarantee of adequate social
protection, the fight against social exclusion, and a high level of
education, training and protection of human health”. It may also
be argued that the provision in Article 3 TEU is stronger than
its predecessor, Article 2 EC, as the formulation of the object-
tives to be achieved through EU action in the latter provision
seems to indicate that these aims are considered to be auto-
matically attained through the establishment of the Internal
Market rather than representing a positive goal or target of the
Internal Market (see Article 3(3) TEU). The combined reading
of Articles 5 and 9 TFEU gives further recognition to coordina-
tion processes and to mainstreaming, inter alia, the objectives
of high levels of employment, social protection and social in-
clusion into other EU policies. These provisions, therefore,
have the potential of reducing the existing decoupling of the
social and economic constitution of the EU.
At the same time, the increased recognition and visibility in
both the TEU and TFEU of coordination processes may lead to
what Craig terms as “boundary problems” between this cate-
gory and that of shared competence (compare provisions of
Article 4 TFEU and Article 5 TFEU) as the detailed Treaty
provisions concerning economic policy accord the EU powers
to take dispositive and peremptory action in certain circum-
stances (Craig, 2008). Moreover, extant forms of New Gov-
ernance remain far from both the standard democratic narrative
of representative democracy and from the democratic ideal of
directly deliberative polyarchy (Cohen & Sabel, 1997) as they
do not provide the communicative presuppositions and proce-
dural conditions of democratic opinion and will formation. In
particular, New Governance has failed to be a process of
self-determination of the actors involved and remains trapped in
a conception of procedure according to which the law or the
command-and-control type of vertical regulation is still deemed
the best means for the pursuit of EU objectives. Part of the
problem has been a tendency of “solving the question of the
effectiveness of governance by reducing it to a question of jus-
tification, thereby confusing the degree of ‘practical’ accep-
tance with that of ‘rational’ acceptance” (Andronico & Lo Faro,
2005). Merely involving the addressees of a given measure-be
it legislative or non-legislative- cannot be reduced to an instru-
mentalist function of input/output legitimacy purposes in the
process of policy formation, nor equally can it be used to claim
the latter’s effectiveness.
The Lisbon Agenda, which has been defined as constituting
one of the two key governance architectures for the EU’s eco-
nomic reform and competitiveness, (Borrás & Radaelli, 2011;
Bulmer, 2012) is a case in point. Answers to the foregoing
questions may help address the implementation deficit which
has characterized Lisbon and ensure a more effective operation
of its successor, the Europe 2020 Agenda, as well as addressing
the problems of implementation affecting hard law instruments,
namely Directives. As Koutalakis et al. explain “although soft
regulation appears to be a panacea for regulatory ineffective-
ness, its application is hindered by the very same institutional
conditions that generate a growing demand for the departure
from generally binding regulation. Non-hierarchical, private
self-regulation or public-private co-regulation require a strong
shadow of hierarchy to be effective” (Koutakalis, Buzogany, &
Bӧrzel, 2010). Over the last decade, various theoretical per-
spectives on the constitutional nature of European integration
departing from the classical constitutional narrative-what Avbelj
coined as “the revised EU constitutionalisms” (Avbelj, 2008)
recognize these changes and advocate for a rethinking of the
way we study and understand governance processes in the EU.
The paper postulates that despite their intrinsic differences,
New Governance, law and constitutionalism form part of the
same corpus unicum, each performing a specific role in ensur-
ing the effective functioning of the EU by compensating each
other’s regulatory deficiencies. In particular, the aim is to re-
consider accepted and fixed understandings of law and consti-
tutionalism that have led to a static and limited juxtaposition of
the former and New Governance, failing to grasp their multi-
dimensional meaning and role in the wider European integra-
tion process. While their basic differences cannot be denied
“differences in historically shaped ‘cultural’ conditions should
not be reified into irremovable obstacles” (Nelken, 2008).
Moreover, the apparently irreconcilable difference between
New Governance and constitutionalism is built on the premise
that the former constitutes and embraces novelty whereas the
latter the old and static. However, how do we know what is new
and what is old? “And how can we legitimately call anything
new (or old) while everything is in flux and therefore simulta-
neously old and new?” (Mӧllers, 2006).
The paper, therefore, puts forward an approach to the under-
standing of law and constitutionalism which is procedural, rela-
tional and dialogic, (Shaw, 2000) that is, one which enables
them to accommodate and interact with New Governance. It is
posited that such a relationship could then provide the condi-
tions for identifying a more workable resolution of intractable
problems about the EU’s democracy, legitimacy and efficiency
gaps. A strong hybridized system of co-regulation could also
reduce the putative weakness of New Governance for its lack-
ing of accountability and judicial scrutiny. In this way a space
for national diversity and experimentation would be preserved
and New Governance would be maintained intact without in-
corporating it into the command and control regulatory model
of EU constitutionalism.
The challenge attendant upon such enterprise is acknowl-
edged from the outset. Law and constitutionalism are touched
upon by an idea of “stateness” (Shaw & Wiener, 2000) which
we do not find in New Governance processes. There are also a
series of other inherent, intertwined and cumulative paradoxes
and problems besetting the EU and its present and future exis-
tence. Each of these encapsulates a weakness or limitation of
the European integration process, and can also be found in
some of the copious literature on New Governance. This makes
it all the more difficult to establish a relationship between these
different modes of regulation and to identify appropriate nor-
mative standards against which to assess the operation and
efficacy of new and experimentalist modes of regulation in the
wider context of EU social governance.
This paper, therefore, intends to be speculative in nature
rather than normative. Its contribution to the EU governance
debate consists in exploring different ways of constructing the
relationship between New Governance, law and constitutional-
ism using models of hybrid governance1.
New Governance in the Context of the
Increasing Transnationalisation of
Global Processes
The emergence of new or experimentalist approaches to EU
governance may be first explained as a manifestation of wider
international processes and phenomena. As global trends dis-
mantle barriers, they bring about destabilization and in certain
ways impose changes at domestic level—which will eventually
lead to social, economic and cultural similarities transnation-
ally—this will bring pressure on law to follow suit. As with
globalization, so with Europeanization, it makes less and less
sense to think of “domestic” norms as forming part of distinct
national jurisdictions that subsequently interact with transna-
tional norms (Nelken, 2008). Legal fields are increasingly in-
ternationalized, even if this process does not affect all fields to
the same extent and varies by different areas of legal and social
regulation. The “denationalization” of rulemaking means that
transnational public and semi-public networks substitute, to an
increasing extent, national fora (Nelken, (2008). What we are
witnessing at international and European levels, therefore, is a
case of divided sovereignty.
As a consequence the state and public bodies have started to
“mimic” the practices of private organizational models and to
apply market-based management theories to achieve the same
degree of efficiency of the private sector. Under the heteroge-
1On hybridity, see de Búrca & Scott (2006), de Búrca (2007), de Búrca &
Scott (2007), Walker & de Bùrca (2007), Trubek &Trubek (2007), Trubek &
, Maher
Copyright © 2013 SciRes. 9
neous and complex realities of globally fast advancements,
states have come to realize that the more flexible and adaptable
structure of the private sector should be configured into their
legal system. In particular, new modes of governance have
already started relying on the use of private sector techniques
such as information pooling, learning by self-monitoring and
peer review, knowledge networks and benchmarks for best
practices. Lobel (2004) notes that “in many contexts, the inter-
connections between the object of regulation (the economy) and
the strategy by which it is regulated (law) motivate the push for
renewal through the adoption of market practices in the public
sphere”. This overarching change has established a link be-
tween contemporary problems in the organization of the econ-
omy to innovative legal theory on regulation and governance to
react to increasing heterogeneity. For Cotterell (2007) “law is
faced with representing or managing difference in legal aspira-
tions no less than with promoting similarity in legal experience.
Questions about national sentiment and diversity of cultural
allegiances are also becoming legally significant, (as matters
bearing on law’s practical claims to authority) in a far more
obvious way than in past decades. In a culturally complex
world, allegiances (to law as to most other embodiments of
authority), become complex and multiple.” In the EU context,
the rise of experimental modes of governance can be seen as a
response to two broadly different kinds of background condi-
tions: strategic uncertainty and in particular the need to address
complex policy problems and, secondly, managing interde-
pendence and the externalities deriving from the coexistence of
different regulatory regimes (De Búrca, 2010).
A recent comparative study on governance models in compe-
tition law and financial regulation in the EU (Castellano,
Jeunemaître, & Lange, 2012) shows that such sectors necessi-
tate a transnational and cross-sector governance approach sup-
ported by an adequate structural framework to adopt effective
common policies. It also shows that in order to ensure regula-
tory coherence different governance models which depart from
classic modes of regulation, whereby regulatory issues are dealt
uniquely at national (and/or sector-based) level, have become a
conditio sine qua non. Different governance structures (ex-
pressed in terms of degrees of “centralization”) may be com-
bined with different regulatory approaches (expressed in terms
of degrees of “invasiveness”) to ensure a fruitful relationship
between transnational governance structures and regulatory
approaches and, in particular, consistency and coherence. A
variety of degrees of centralisation may be conceived and a
governance structure may take the shape of: a decentralised net-
work of authorities, a meta-organisation, or a single (centralised)
independent authority. Similarly, a governance action might be
conducted following different regulatory approaches, which
may be expressed in terms of degree of invasiveness. Sunshine
regulation (that is, regulation by information) for example pre-
sents a low degree of invasiveness consisting of less intense
control of markets’ participants while self-discipline and com-
mand and control provide for more binding commitments for
markets presenting, therefore, a higher degree of invasiveness.
As part of the globalisation phenomenon economic and so-
cial interdependency have been rapidly increasing requiring
states to rethink and change their welfare-state systems. At the
same time, there has been a growing demand for respecting and
preserving the diversity of national social and welfare provision.
Hence, flexible ways of conducting regulation in Europe and, in
particular, New Governance, have arisen as a response to the
need to ensure both common action (“unity”) and, at the same
time, respect for national traditions (“diversity”) (Dawson,
Social Services of General Interest (SSGIs) are a good ex-
ample illustrating this complex phenomenon. SSGIs have been
Europeanized through two methods (Szyszczak, 2012). Firstly,
through a modernization process promoted by the EU Commis-
sion using soft law and New Governance techniques and pro-
viding legitimacy to such processes by creating a stakeholder
constituency. This has allowed the EU to have some form of
competence in an area traditionally, and jealously, protected by
the Member States. Moreover, it also avoids an open conflict
between the Member States, interest groups and, more gener-
ally, non-state actors in relation to the role of SSGIs in the EU.
Secondly, through the Member States in the Council seeking
justifications and exemptions for SSGIs in secondary legisla-
tion, defined as “safe havens” (Szyszczak, 2012). Hence, rule-
formulation and settlement increasingly takes place within new
forms of transnational governance. It follows that the govern-
ance paradigm is a natural successor to the classic regulatory
model as it addresses the changes in both the goals and capa-
bilities of legal regulation. This in turn has led to a scenario
whereby not only legal techniques have become outmoded and
the need for change become conspicuously true but also and
significantly the aspirations of law and policy have themselves
undergone transformation (Lobel, 2004).
Moreover, the EU forms an integral part of a post-modern
trend in international capitalism which has reduced the tradi-
tional framework of government, increasing processes of priva-
tization of the law and promoting a stronger legal culture of
contract. In this context, the EU has become in de Witte’s
(2012) words “an international legal experiment”, acquiring a
unique role and acting, on the one hand, as a liberalizing force
for international capitalism, while on the other acting as a regu-
lator of capitalist economic forces. It has followed, therefore,
the tendency for transnational systems of governance to ex-
periment with new, less prescriptive and less hierarchical ways
of regulating. In this context, New Governance should be seen
as a product of the contingencies of history and transnational-
ism with multiple overlapping and conflicting juridiscapes
(Appadurai, 1996). The blurring of the public-private divide
within New Governance has significant implications in relation
to the question of the EU’s polity identity as it raises questions
on whether government is public, private or a combination of
the two. In this broad and fluid “fusion zone” the public sector
becomes more open to the dynamics, techniques, and language
of the market, whereas private actors have to deal with condi-
tions set by public authority or integrate broader citizen con-
cerns, on their own initiative and to improve their market posi-
tion often under the banner of corporate social responsibility
(Smismans, 2007).
These systemic changes have significant implications for
regulation in the EU and the way we study it. They bring to the
fore how images of law based on the unity of the nation-state
say little about the multi-faceted processes by which EU law is
formed or the actors involved in decision and policy-making.
Acknowledging this is challenging per se given how accus-
tomed we have been so far with the idea that, in the Union, law
has been both the object and the agent of integration and thus
central not only to regulation but also its existence. Dawson
rightly points out that “the creation of a self-sustaining and
authoritative legal order has been the very standard by which
Copyright © 2013 SciRes.
we have measured the EU’s development, or seen its ‘success’”
(Dawson, 2009).
EU law has gradually evolved into being more than merely
instrumental to the pursuit of the Internal Market and to Euro-
peanization and increasingly seen as exemplifying the various
processes and phases of European integration and governance
(Bermann, 2001). Recourse to a single process of integration,
based on a single structure, has been made untenable by several
waves of enlargement and typology of new competencies which
have required an increase in the diversity and flexibility of both
policy and legal responses. The move towards experimentalism
illustrates how complex the process of European integration is
and, in particular, establishing the goals of integration and iden-
tifying the most appropriate means to achieve them. It follows
that regulation in the EU can no longer be reduced to mere
dichotomies between a supranational and a domestic level of
rule-making but rather it should be constructed and analyzed as
being differentiated and multi-level. This in turn requires a new
way of thinking from the perspective of EU constitutional and
administrative law because of the broader spectrum of actors
involved and mix of measures and action employed.
Within the EU context, some of the specific reasons for the
way in which New Governance has emerged and spread can be
related to features of the EU’s economic constitutional frame-
work and the rigidities of traditional constitutionalism (de
Búrca, 2003). With the series of enlargements the EU can no
longer “sustain the degree of homogeneity, commonality and
unity of purpose and method which seemed to characterise the
earlier Community” (De Búrca & Scott, 2000). Further, the ini-
tial model and ideal of European integration aimed at develop-
ing a uniform and harmonized legal system has gradually
started to exhibit vulnerability as it has exacerbated and polar-
ized differences between Member States, resulting in various
degrees of disintegration Shaw (1996). Uniform approaches to
EU integration have gradually been substituted or comple-
mented by differentiated integration, broadly defined as en-
compassing “variations in the application of European policies
or variations in the level and intensity of participation in Euro-
pean policy regimes” (Wallace, 1998), which has been increas-
ingly constitutionalized by subsequent Treaty reforms. Argua-
bly differentiated integration has strengthened rather than
weakened the ability of the EU to constantly evolve in response
to changing pressures and new priorities.
Borrowing a phrase by Walker in relation to flexibility
(Walker, 2000), New Governance may be described as being
“an ubiquitous device which can serve quite different—even
diametrically opposed—end games”. In some ways, New Gov-
ernance may be seen as a new form of legal realism (Erlanger et
al. 2005) or legal pragmatism (Simon, 2004) and the off—
spring of all the contradictory urges and pains of the Europe—
anization process and of the EU’s constitutional self-unders-
tanding. In particular, New Governance well-illustrates the
paradoxical nature of the EU’s constitutional system: a funda-
mental tension between EU constitutionalism based on limited
EU powers, clarity in the division of competences between
States and the EU, on the one hand and the reality of a highly
reflexive and pragmatic form of governance entailing the ex-
pansion of EU activity into virtually all policy fields (which
critics define as “creeping competences” or “Europeanization
by stealth”), a profound degree of competence and power shar-
ing between levels and sites of decision-making on the other.
Initially, New Governance has been said to be essentially a
mere procedural governance process within which political
choices are made. However, there is more to New Governance
as the set of procedures themselves have a bearing on the po-
litical choices that can be articulated through them.’ Hence, in
order to address the democratic deficit and accountability gap
which new modes of governance seem to suffer from it is nec-
essary to increase “opportunities for political scrutiny and con-
testation of debate too often treated as mere ‘technical’ or
‘regulatory’ discussions” (Dawson, 2010).
The reasons for its emergence offer sustenance to the view
that the term “New Governance” is a misnomer2 and rather than
constituting an alternative process to the Common Market
“core” it operates within the “constitutional embrace” of the
Treaties3. Dougan (2006) posits that the growth of alternatives
to total harmonization while being a clear indication of a grow-
ing resistance to centralization are “all phenomena which have
grown from within the ‘Community Method’, and represent
equally valid manifestations of it, rather than evidencing its
outright rejection or innate weakness”.
New Governance, therefore, forces European scholars to re-
think the concept(s) and the role(s) of law, the theories and
models of EU constitutionalism, their relationship with “new”
modes of regulation and, a fortiori, to re-examine the way the
EU system operates and the way Europeanization is being pur-
New Governance as a Threat to EU
Contextualisi ng t he Deb a te
Many lawyers object to placing greater reliance on the proc-
esses and practices of New Governance the main reason being a
more or less explicit concern that “new” or experimentalist
approaches to regulation based on horizontal forms of coopera-
tive or collaborative governance undermine the foundations of
the Community Method and their increased use in recent years
has been “emasculating” it. The reason for this—it is argued—
is that these new forms of governance operate in the shadow of
the law and its hierarchy evading the democratic controls of
parliamentary and judicial scrutiny4. Klabbers talks about the
undesirability of soft law maintaining that “by creating uncer-
tainty at the edges of legal thinking, the concept of soft law
contributes to the crumbling of the entire legal system. Once
political or moral concerns are allowed to creep back into the
law, the law loses its relative autonomy from politics or moral-
ity, and therewith becomes nothing else but a fig leaf for
power” (Klabbers, 1998).
In particular, the perceived perniciousness of New Govern-
ance would result in a reduction of the “capacity of law to steer,
to inform the normative direction of policy, and to secure ac-
countability in governance ··· by virtue of the mismatch be-
tween the fundamental premises of law and the premises of
New Governance” (De Búrca & Scott, 2000). In many ways this
comes with no surprise as it is easily noticeable how New Gov-
ernance practices and processes (combined with interrogatory
postnationalism discourses of the EU) erode the comfortable
2Scott and Trubek look at different modes of regulation pre-dating New
Governance such as Comitology and the institutionalization of the European
Social Dialogue, see Scott & Trubek (2002) and Kilpatrick (2006).
3Both expressions are borrowed from de Búrca (2000).
4For a critical account of the “gap thesis” and liberal legalism, see Wilkin-
son, (2010).
Copyright © 2013 SciRes. 11
relationship between law, constitutionalism and European inte-
gration. This “orthodoxy of hostility”5 towards New Govern-
ance propounded by those who envisage only a form of integra-
tion through law based on the “solid ground” of traditional
constitutionalism is associated with the fear that experimental-
ism may circumvent pivotal political commitments and consti-
tutional safeguards given that it eschews traditional legal
mechanisms of accountability, alongside transparency consid-
ered its alter ego, which could further alienate an already disin-
terested and distrustful populace.
Moreover, there is a concern that there may be a trade off
between democratic accountability and policy efficiency (the
“input-output dilemma”) (Papadopoulos, 2007). However, as
stressed by Weiler, democracy and legitimacy are not “co-ter-
minus” (Weiler, 1995). Legitimacy may be preserved by other
values other than representative democracy and by substantive
policy outcomes rather than process (Scott, 1998). On this point,
Esty (2006) explores various types of legitimacy aside democ-
ratic legitimacy-results-based, order-derived, systemic, delib-
erative, and procedural which may equally guarantee a legiti-
mate government or, better-said, provide a logic for the accep-
tance of political authority, including supranational policy-
making even though democratic underpinnings may be absent.
Moreover, the sources of legitimacy interact in complex ways
reinforcing and substituting for each other and at other times
being in tension.
Reframing Accountability
From a management point of view the EU has grown too fast.
As Harlow posits, the peculiar problems of welding together a
transnational bureaucracy have made it hard to develop an
ethos of management appropriate to the Community Method
and, more broadly, to the multi-tiered policy-making system of
the EU (Harlow, 2002). By the same token Everson argues that
(Everson, 1998), operating under peculiar EU conditions of
constitutional and political uncertainty, administrative law’s
traditional role of ensuring the accountability and fidelity of
delegated legislation is obsolete: accountable to whom, faithful
to what? Governance encompasses institutions and structures
that observe, reflect and evaluate the performance of Member
States, which promote regulatory experimentalism and do not
have necessarily formal legal powers. For this reason they may
not be democratically accountable.
Under present conditions, EU administrative law is forced to
reassess its underlying constitutional logic and long-standing
normative reference points. In particular, it must explicitly
move away from its idealized view of “legitimate” administra-
tion that is predicated upon a narrow vision of current world
politics and on the existence of a pre-existing and unitary po-
litical will (of the state). In turn this requires the development
of a new set of administrative rules and structures which are
sensitive to the complex realities of the pluralist and composite
European system, reflecting a general phenomenon, that is, the
crumbling away of the central state at national level and the
involvement of a multiplicity of both public and private actors.
A quick glance to the present EU will suffice to see that
within the EU there are different levels or layers of account-
ability, be it ex ante or ex post, and different degrees of judicial
scrutiny both at European and national levels. This system of
accountability and judicial scrutiny is far from being perfect. It
follows that if it is difficult to accomplish an efficient system of
accountability within more traditional modes of regulation it
becomes even more challenging to develop a model of ac-
countability, be it legal or political, that is appropriate to the
less formal and less structured processes of New Governance.
On accountability, Mulgan (2000) notes, “the word crops up
everywhere performing all manner of analytical and rhetorical
tasks and carrying most of the burdens of democratic ‘govern-
ance’”. It is invariably equated with a strong system of judicial
review, the mechanics of law enforcement or the principles of
procedural due process (legal accountability) and set of proce-
dures of governments’ public control and censure through
elected institutions (political accountability): all elements which
seem to be absent in New Governance.
The Commission’s response to public concern over the ex-
tensive and growing use of soft law instruments has been to
promote democratic self-management in the rule-making and
standard-setting processes, delegating wherever possible to
agencies, committees or social partners. In this context, the
rules are made either by those directly interested or by repre-
sentatives of civil society by way of delegation. The delegation
of power to various independent bodies and agencies (“agency-
fication”) has been justified by the need to ensure the credibility
of those entrusted with decision making, and this credibility is
deemed to be primarily safeguarded through the independence
and expertise according to the “fiduciary” principle (Majone,
2002). The main criticism voiced by many lawyers is that it
adds confusion as to who should be held accountable as well as
raising doubts about its participatory democracy element given
the limited and piecemeal involvement of certain actors and
stakeholders of civil society. These new actors are, for the most
part, excluded from the decision-making sphere and are given a
more important role in the implementation side of policy-mak-
ing. In this sense, these actors may clearly be seen as being
regulatory and legitimacy resources of the EU. SSGIs are a case
in point. As Szysczak (2012) observes a new constellation of
stakeholders has been created, largely at the instigation of the
Commission, to provide legitimacy to the Europeanization of
SSGIs by channeling new avenues for what are portrayed as
democratic, participatory processes. Thus, it is argued that the
participation and responses of the stakeholders to Commission
initiatives are part of the emerging new governance processes.
Hence, it may be more apt to describe New Governance as
being closer to what De Búrca refers to as “new public man-
agement style of engineered bureaucracy” (De Búrca, 2010)
rather than the participatory, collaborative and reflexive forms
of governance which are all part of the experimentalist para-
The foregoing problems do not constitute an insuperable
challenge, particularly if the aim is not that of achieving
fully-fledged democratic legitimacy but, more modestly, a bet-
ter functioning of supranational global governance bodies with
improved legitimacy (Esty, 2006). Indeed, notwithstanding
these limitations to experimentalist and collaborative govern-
ance, it is posited here that the extent to which the departure
from the procedures of legal and political accountability may
represent a serious weakness of New Governance will be de-
termined by the extent to which classical modes of accountabil-
ity are considered as being necessary elements of “new” modes
of governance and, more broadly, of a given transnational pol-
ity or system. Answering this question is necessarily linked to
5I have borrowed this term from Shaw
Copyright © 2013 SciRes.
visions and imageries of what constitutes a democratic and
legitimate system of governance in the EU and conceptions of
the EU itself, which remains an unsettled and vexed issue.
The statal approach would tempt us to prioritize the tradi-
tional, statal forms of accountability through traditional repre-
sentative parliamentary institutions and ex post control by the
courts (Harlow, 2002). Conversely, the post-national approach
would lead us to consider the EU as being, chiefly, a system of
transnational governance and thus one in which there are
“multi-polar” systems of accountability coexisting within the
EU (Hood, 1986; Scott, 2000). This is not to say that actors
involved in governance networks are not accountable at all.
They are subject to peer or professional accountability, to repu-
tational and market accountability, to fiscal/financial, adminis-
trative or legal accountability. There is no guarantee, however,
that such diffuse or composite control mechanisms can be ef-
fective, as they operate in a fragmentary and uncoordinated way
without forming a coherent system. Also, the problem of a lack
of political and democratic accountability remains: only some
network actors are subject to it and control over them can be
merely indirect or partial. In this model of accountability forms
of institutional balance are less closely rooted into the institu-
tional arrangements of a nation state which the Community
Method partially conforms to. According to Scott’s “interde-
pendence model” (Scott, 2000) the actors are “dependent on
each other in their actions because of the dispersal of key re-
sources of authority (formal and informal), information, exper-
tise, and capacity to bestow legitimacy such that each of the
principal actors has constantly to account for at least some of its
actions to others within the space, as a precondition for action”.
However, the problem with this governance model, as men-
tioned earlier, is that it relies too heavily on behavioural pres-
sures (for example, through moral commitments and social or
peer pressure) as a substitute for classical accountability (Har-
low & Rawlings, 2007) because mutual accountability net-
works tend to be more concerned with policy input and
long-term relationships than retrospective evaluation, rendering
accountability difficult. Alternatives to the classic Community
Method while not being legally binding still entail a process of
choice, selection and interpretation of specific norms and val-
ues thus requiring some form of democratic legitimacy (Borrás
& Radaelli, 2010).
The above forces us to rethink both classical notions of ac-
countability and mutual accountability. Drawing on the work
by Benz & Papadopoulous (2006) and Benz (2007) and in line
with what Kingsbury et al. (2005) and Krisch and Kingsbury
(2006) define as “global administrative space” and “global
administrative law”, it may be possible to develop a new notion
of accountability by combining mutual accountability with
classical democratic and political accountability which may
improve the democratic accountability of the EU’s multilevel
system. The model is based on a decisional pattern character-
ized by a functional separation of power between policy for-
mulation in networks, and by constituent and veto power dedi-
cated to institutions that are authorized and accountable to citi-
zens. Formally authorized institutions could first set the
“meta-governance” (the governance of governance networks)
procedural rules and administrative tools that provide checks
and balances ensuring inter alia for fair participation and for
accountability in network forms of governance such as for ex-
ample conflict of interest rules, monitoring and audits and lob-
bying disclosure to avoid clusters of authority. Although the
formalization of networks (provisions about selection of par-
ticipants, modes of operation, etc.) may be questionable to
some, assigning explicitly the design function to the democ-
ratically authorized institutions may reinforce at the same time
neo-Weberian expertise-based legitimacy, Habermasian delib-
eration and Fullerian principles of legality.
Hence, formally authorized institutions could also have the
final say on policy outcomes and outputs, by being an effective
locus of critical scrutiny over proposals formulated by govern-
ance networks, which have for their part the advantage of pool-
ing expertise and of facilitating acceptance by stakeholders. At
national and regional levels, the constituent and veto functions
could be performed by national parliaments or elected govern-
ments. In this context, non-state actors participating in New
Governance processes would submit policy proposals to veto
players, while the latter would be forced to supervise participa-
tion and policy making in governance effectively.
Within this meta-governance frame we could include what
Everson defines as a “rule of reasons provision”, (Everson,
1998) which could serve as a basis for judicial review. In par-
ticular, European administrative law lato sensu could be built
upon Article 296 TFEU (ex Article 253 EC) which provides
that decision-making be well reasoned. This provision could
require that all committees, agencies, private standardization
bodies and fixed actors within more informal regulatory net-
works, maintain and make public detailed records of the proc-
esses of decision-making and give access to information and
documents thus ensuring transparency. In turn judicial review
proceedings could be triggered by the standing of impartial
bodies such as parliamentary committees rather than merely by
individual locus standi (which would be less likely to succeed
given the multi-level and heterarchical setting of the EU system
as well as the strict approach of the CJEU in relation to
non-private applicants’ fulfillment of the criteria for individual
concern under Article 263(4) TFEU).
This model could ensure a loose coupling of New Govern-
ance with democratically legitimate representative structures
creating interfaces that can be beneficial for mutual learning.
Hence, while departing from the classical models of account-
ability, it would nevertheless enable the more nebulous New
Governance practices and processes to operate in a way which
may be held more democratically accountable and responsive
whilst ensuring governability, policy efficiency and remaining
more representative of public needs and values. Moreover, this
model of accountability would not lead to a return of the same
substantive regulatory rationality of command and control of
the classical forms of regulation. On the contrary, it would pre-
serve and strengthen the structure and mechanisms of both
classical and experimental forms of governance. Law would
retain an important and renewed role. In this context Walker’s
analysis of law’s renewed role is particularly fitting and de-
serves to be quoted in full: “the very circumstances that chal-
lenge and dilute the problem-solving capacity and symbolic
authority of law guarantee that it remains a precious currency.
The problems of coordination and legitimacy of the new flexi-
ble order are on such a scale that law, with its traditionally vast
regulatory potential, will inevitably continue to be invoked as a
means of containing and resolving crises. Moreover, as a
deeply-layered and richly-resourced repository of traditional
and cultural meanings, the legal form retains a ‘legitimacy
credit’ and a versatility even in the face of new and apparently
discontinuous contexts of political organization and regulation”
Copyright © 2013 SciRes. 13
(Walker, 2000).
Bridging the Gaps between New Governance,
Law and Constitutionalism
The Premise
In the preceding sections the paper showed that New Gov-
ernance presents significant practical and conceptual challenges
for the EU’s legal order, for our understanding of law and legal
processes and ideas such as that of democracy and self-gov-
ernment which are embedded in the concept of constitutional-
ism. The very existence of these problems explains why New
Governance is a phenomenon that can no longer be disregarded
by legal scholars who are called to rethink in a meaningful way
the roles of law and constitutionalism in the wider EU context.
In addition, we have seen that there are a series of paradoxes
and tensions with which the EU is constantly confronted. It
may also be argued that the challenges posed by New Govern-
ance mirror or reflect inherent problems concerning constitu-
tionalism and law both at European and national levels. These
problems may be explained to a certain extent by globalization
processes but may also be seen as the result of dynamic and
evolving trajectories of history and international relations.
The above should not lead us to the conclusion that New
Governance is a foe of EU constitutionalism. However, this
situation does invite us to rethink current understandings of the
nature of these problems and challenges and to reconsider how
hybridity may be used as a workable regulatory model. Em-
barking upon this exercise is not an easy task as there is no
one-size-fits-all solution to the challenges facing the EU. As
Poiares Maduro (2003) states “the paradoxical character of
constitutional concepts determines that there are no ideal solu-
tions and that different polities and/or institutions may come
closer to constitutional ideals in different real-life settings”. No
standard regulations can effectively govern the multiplicity of
sites in which the multi-tiered system of the EU operates. The
transnationalization of governance requires legal institutions
themselves to be multiple and diverse. One advantage of hy-
bridization is that rather than focusing on legislation, imple-
mentation, enforcement, and adjudication as separate stages it
conceives them in a more holistic manner, that is, as being part
of the same process and it thus seeks to establish dynamic in-
teractions between them. New Governance reflects a deep
transformation of the nation-state, a shift towards a postnational
era in which the EU has emerged as the nation-states’ changing
self. Ladeur (1997) argues that conceptions of hierarchical,
centralized and unitary states ignore the extent to which proc-
esses of differentiation and pluralization in decision-making
have transformed the “state from within”.
Hence, despite the paper’s purported “normative inertness”
(Gardner, 2001) it is acknowledged that there is a need to de-
velop a notion of regulation which takes into account the pecu-
liarities and realities of the EU system. In this context, meta-
constitutionalism enables us to assign law with a renewed role.
Law retains an important problem-solving capacity and sym-
bolic authority and the problems of coordination and legitimacy
of the current multifarious and multi-tiered EU system are on
such a scale that law, with its traditionally vast regulatory po-
tential, continues to be an invaluable means of containing and
resolving crises. While the Open Method of Coordination
(OMC) has expanded to new areas, at the same time, the adop-
tion of EU legislation in the social sphere in the decade follow-
ing the launch of the OMC has gone up rather than down
(Dawson, 2011). In addition, the CJEU’s judicial activism has
been focusing on ensuring the effective implementation of
market freedoms potentially undermining the “soft” compro-
mises reached by new governance or even by legislation (Jo-
erges & Rödl, 2009).
Law’s function, however, is not only prescriptive but has
also become facilitative and reconstitutive (Stewart, 1986) pro-
viding for a set of rules about the procedure, organization, and
constitution of other social fields and subsystems. In this con-
text, law would enable a “harmonious fit” between institutional
structures and social structures rather than influence the social
structures themselves (Teubner, 1988). Law, therefore, contin-
ues to play a significant role through its capacity to coordinate
among different social institutions (e.g., political, economic etc.)
but it is no longer solely based on the narrow and standard
conception of law as top-down, prescriptive and universal.
Law’s coordinating function is based on its retained “Kompe-
tenz-Kompetenz” role (“competence competency”), that is, the
competence to determine other actors’ competencies. The legal
system discerns the capacities of different actors, arenas and
subsystems, defines and allocates responsibilities among them
and their self-regulatory institutional processes. As Dawson
posits “the integrative function of a procedural approach to law
builds on this insight through ‘bringing together’ not in order to
reduce, but to establish and deliberate differences. The law is a
mechanism that, in so much as it cannot ‘reflect’ common pref-
erences, must bring divergent positions into a common dis-
course” (Dawson, 2011). Its jurisdictional role should be seen
in this reconstitutive context, one which also gives voice to the
different actors who actively participate in the multi-tiered sys-
tem of the EU. This approach would also bring representation
and participation closer to one another giving a renewed and
strengthened value to Union citizenship. The hybrid model of
governance broadly outlined here follows a very similar theo-
retical pattern as the one that Poiares Maduro (2003) has termed
as “counterpunctual law”, which aims at preserving the identity
of national legal orders while at the same time promoting their
inclusiveness within the EU system.
While this model has clear advantages from the perspective
of regulation and democracy the growth in legal pluralism and
experimental approaches to EU governance, has destabilizing
effects and creates a series of problems to law as an institution.
National and European courts are forced to adjudicate conflicts
between a broader range of actors engaged in rule-making
processes. Hence, while hybridity enables the EU to exist
within a complex multi-tiered system of governance and to live
with paradox it also leaves us with the difficulty of reconciling
the often opposing needs of economic efficiency with democ-
racy and accountability, expert knowledge with public in-
volvement and representation with participation across different
policy domains. However, the challenge of this enterprise could
be used productively insofar as we do not search for overarch-
ing solutions which often fail to grasp the whole picture of a
problem and engage instead with the reality of EU deci-
The Quomodo: A Hybridized System of EU
Hybridity-as put forward here- aims at bridging the gap be-
tween New Governance and EU constitutionalism and enables
them to build on one another’s strengths in order to enable the
Copyright © 2013 SciRes.
EU, as a highly complex, multi-tiered and postnational site, to
provide new answers to the new collective action problems
posed by further EU enlargements and by ever-increasing
transnationalized and globalized markets. The aim here is to
identify ways to establish new bonds of association and politi-
cal configuration in which New Governance and EU constitu-
tionalism can happily coexist thereby identifying the conditions
necessary to assure and optimize effective voice and participa-
tion as well as ensuring the preservation and application of the
rule of law and due process (as defined in the previous section).
In this context, Hervey suggestively puts forward the idea of
conceptualizing both processes of adjudication and New Gov-
ernance not only as being categories of “normative ordering”
but also as places and processes of social learning (Hervey,
2010). Specifically, rather than being closed and self-referential
systems she advocates the creation of a process of interaction
whereby “law, and the exercise of legal rationality to solve
problems that takes place within adjudication, is not a stand-
alone process, which exerts a one-way coercive influence on
the ‘non-legal’ world. Rather, the flow of ideas, solutions and
rationalisations for those solutions, between legal and non-legal
fields reveals law as at least in part ‘endogenous’ to those
non-legal fields” (Hervey, 2010). Using a constructivist ap-
proach Hervey develops the idea of “adjudicating in the shadow
of the informal settlement” according to which in litigation
judges may take account of private ordering “bargains” in their
decision-making processes and embed them into their decisions
concerning similar cases.
In this context, constitutionalism rather than representing a
fixed legal framework, provides the ground for a process of
continuous renewal and dialogue in relation to a polity, the EU,
that is always in the course of negotiation and renegotiation. As
Avbelj (2008) posits, constitutionalism should free itself from
“the overly narrow statist bonds and the ensuing drawbacks, so
that its spatial, temporal and normative criteria are redefined in
pluralist terms”. In this way it could—as a constitutive dis-
course of imagination and conceptualization—fit the epistemi-
cally pluralist European construction (Walker, 2002) and law
would thus acquire an important renewed and transformative
role along its more traditional instrumental and prescriptive
Insights about state and market failure confirm the need to
move beyond existing conceptions of law and legality and pat-
terns of law-making (acknowledging the inherent indetermi-
nacy of law as posited by American Legal Realists). Dawson
talks about the need to reframe the role of law in New Govern-
ance processes and ensuring that New Governance is “both
conditioned by, and contributing to, the larger structure of EU
law, in ways that can support the democratic character of both”
(Dawson, 2010).
The democratic inclusiveness and legitimacy of the EU will
depend on the level of access to participation and public con-
testation and on continuous “democratic communicative action”
(Tully, 2002). The recent changes introduced by the Lisbon
Treaty promote greater involvement by national parliaments in
EU decision-making and direct democracy (Articles 10 - 12
TEU; Protocols 1 and 2). However, with the exception of the
citizens’ initiative6, these changes represent a response to con-
cerns over the EU’s alleged democratic deficit and, therefore,
remain premised on a state-centric understanding of democracy
which does not take into account the complex and pluralist
policy and legal system of the EU.
Another key feature of this conceptual frame, therefore, is
that it embraces a broad notion of democracy transcending any
conceptual dichotomy and combining direct, representative,
participatory and deliberative forms of democracy. Central to
this broad notion of democracy is partnership, as it “does not
involve the parceling out of limited pockets of sovereignty to
different tiers of government, but a genuine pooling of sover-
eignty that demands intense interaction between the different
tiers within a single, undivided, policy sphere” (Scott, 1998). In
addition, this model is based on an empowerment paradigm in
which there is an active participation in the political sphere
rather than mere enablement, in which there is only technical
participation to reach the objectives of a given policy. At the
same time, it promises to reconcile the objectives of efficiency
of New Governance with those of democratic legitimacy and
accountability of EU constitutionalism.
In this context, metaconstitutionalism (Walker, 1999) is par-
ticularly apt for addressing the challenges that the EU is faced
with because rather than transcending state constitutionalism
and seeing state and postnational constitutionalism as entirely
separate, it seeks to unfold their genealogical link: while the
premises on which they are based may vary in many different
and important ways at the same time one-the postnational- de-
rives from the other—the statal (Lindahl, 2010). It also ac-
knowledges the challenges to the constitutional state as the
primary unit of political authority and accepts the existence of a
more heterarchical order. Within these currencies it recognizes
“the continuities and discontinuities between the public law dis-
courses of the state sphere and the non-state sphere” (Walker,
2000) which it seeks to address. It is necessary, therefore, to
revisit the concept of law in order to combine the use of law as
a “medium” with that of law as an “institution” encompassing
the organizational, procedural, substantive and normative ele-
ments of law. This approach would also bring representation
and participation closer to one another giving a renewed and
strengthened value to Union citizenship.
At present there are many instances where we can see New
Governance practices and processes and law operating in the
same policy domain. In certain configurations they are not only
complementary but also integrated into a single system in
which the functioning of each element is necessary for the suc-
cessful operation of the other. In these scenarios law is in effect
transformed by its relationship with New Governance. Trubek
and Trubek (2007) have identified four types of such transfor-
mation. First, it may be associated with a shift to legal proce-
duralism in which law mainly provides procedural rules for
conflict resolution and problem-solving; second, to configure-
tions in which New Governance practices and processes have
been added to areas which were initially covered by traditional
forms of legal regulation and rights-based structures are re-
tained to provide a kind of “safety net”; third, to situations
whereby law sets minimum standards and New Governance
may be used for exceeding those standards through self-regula-
tion and self-monitoring; fourth, to instances in which legal
regulation provides general norms and New Governance is used
to help them become more specific. Various areas of EU policy
have relied-albeit to a different extent- on “hybrid” forms of
6Article 11 TEU and 24 TFEU; Regulation (EU) No 211/2011 of the Euro-
pean Parliament and of the Council of 16 February 2011 on the Citizens
Initiative OJ L65, 11.03.2011, p. 1; for academic commentary, see Dougan,
(2011) and Mendes (2011).
Copyright © 2013 SciRes. 15
fiscal policy coordination, where the Stability and Growth
Pact (SGP) provides for a combination of soft coordination
processes with hard sanctions (Maher, 2007);
gender equality, where measures include a combination of
hard law instruments such as Directives ( for example, the
Recast Directive7 which itself does not exclude the use of
soft measures), the case-law of the CJEU and the adoption
of softer tools or coordination processes such as gender
mainstreaming as in the European Employment Strategy
(EES) (Beveridge & Velluti 2008);
integration of regular third-country nationals (TCNs), where
OMC-like mechanisms are used in combination with hard
law instruments such as Directives (for example, Directive
on Long-term Residents TCNs)8 in order to develop an in-
clusive immigration policy pursuant to the 1999 EU Tam-
pere multiannual programme’s objectives (Velluti 2007);
healthcare, where the work of ad hoc High Level groups
and agencies is coupled with the CJEU case law and the EU
Commission Communications; the Patients’ Rights Direc-
tive9 itself contains two types of provisions, legally binding
rules reflecting CJEU judgments and non-legally binding
rules focusing on participatory mechanisms (Trubek &
Hervey, 2007), (De Ruijter & Hervey, 2012);
environmental policy, the Water Framework Directive10
provides for a number of informal and horizontal processes
and, at the same time, it provides for more detailed legisla-
tion (Holder & Scott, 2006);
competition law, within which different governance struc-
tures are at work under a common framework: the Director-
ate General for Competition (DG COM) and a network of
national authorities and courts (Castellano, Jeunemaître, &
Lange, 2012). Hence, EU competition law and policy relies
on a decentralised structure of parallel enforcement of the
law. At the same time, a European Competition Network
(ECN) has been set up in order to foster coordination among
national competition authorities;
services regulation, with the Services Directive11 being the
main legislative tool to regulate services in a horizontal
manner, focusing on administrative simplification and co-
operation. The Directive provides for regulatory reform at
national level and contains rules for setting up the institu-
tional framework for the exchange of information, mutual
learning and for self and mutual evaluation;
SSGIs, where the use, and range, of soft law and soft gov-
ernance processes has grown in recent years, with the
Commission involving a wider group of actors to contribute
to the development of a European discourse on SSGIs
(Szyszczak, 2012). This has allowed for the creation of a set
of Europeanized themes: a European concept of SSGI; a
European discourse on SSGI; a European understanding of
the problems of SSGIs.
The above examples seem to suggest that hybrid forms of
governance are increasingly being used in various areas of EU
action. In particular, in each of the afore-mentioned areas of EU
regulation, we can see an increased participation of non-state
actors and their networking, the creation of national contact
points, EU agencies, the general requirement of dissemination
at national level as well as the exchange of information at
European level, the systematic inclusion of cyclical reporting in
hard law measures such as Directives, the adoption of Commu-
nications, scoreboards and action plans by the EU Commission
and other soft instruments as well as a predilection for frame-
work directives strongly suggest a transformation of “old” into
“new” governance or into “old-new governance” (Hatzopoulos,
Courts, Parliaments and New Governance
In this context, the role of the judiciary is a complex one
given that New Governance processes often operate beyond
formal structures (Scott and Sturm, 2007). In primis, courts have
an important monitoring function as deliberative problem-
solving units and, in particular, they have a process-perfecting
function by ensuring that the decision-makers themselves make
policy with explicit reference to constitutional and policy rea-
sons. The increase in decentralized, heterarchical and dispersed
sites of policy and decision-making raises the issue of how and
which substantive and procedural safeguards need to be im-
posed to limit the risk of abuse in power relationships. My ar-
gument is that while the definition of these safeguards needs to
be elaborated through enabling mechanisms of deliberative
democracy and structures of participation for policy formation
(so that all those affected have a voice or have given their con-
sensus in shaping it following a process of reflexivity), the
respect of these safeguards could be assured by the courts act-
ing both in their more traditional role as norm enforcers and in
their renewed role as catalysts. In particular, courts could fa-
cilitate the creation of “process values and legitimacy principles
by the institutional actors responsible for norm elaboration
within New Governance [···] providing an incentive structure
for participation, transparency, principled decision-making, and
accountability which in turn shapes, directly and indirectly, the
political and deliberative process” (Scott & Sturm, 2007).
Similarly, Hervey puts forward the proposition that the rela-
tionships between adjudication and “new governance”, bargains
or informal settlements should be developed along hybrid and
transformative lines. New Governance could contribute to af-
fect or interact with the framing of a problem; second, it could
contribute to, affect or interact with the reasoning that is
adopted in reaching a solution; third, it could contribute to,
affect, or even determine, the preferred solution itself (Hervey,
2010). As pointed out by Hervey, in the context of “the prob-
lem of social Europe”, it is the very constitutional structure of
the EU that creates the problem which combined with the EU’s
real politik will not change (Hervey, 2010). Both litigation and
New Governance remain a fortiori the main means to address it
at European level and “a mutually transformative relationship
between the two processes, that brings together the best features
from each process in a symbiotic interaction, must be desir-
able” (Hervey, 2010).
7Directive 2006/54/EC of the European Parliament and of the Council of 5
July 2006 on the implementation of the principle of equal opportunities and
equal treatment of men and women in matters of employment and occupa-
tion (recast) OJ L 204/23.
8Council Directive 2003/109/EC of 25 November 2003 concerning the
status of third-country nationals who are long-term residents OJ L 16/44.
9Directive 2011/24/EU of the European Parliament and of the Council of 9
March 2011 on the application of patients’ rights in cross-
order healthcare
OJ L 88/45.
10Directive 2000/60/EC of the European Parliament and of the Council o
23 October 2000 establishing a framework for Community action in the
field of water policy, OJ L 327/1, 22 December 2000.
11Directive 2006/123/EC of the European Parliament and of the Council o
12December 2006 on services in the internal market OJ L 376/36.
In this way, we reconcile what at first sight appear to be op-
posing rationales and aims of apparently divergent forms of
Copyright © 2013 SciRes.
regulation, namely, EU constitutionalism and New Governance.
In particular, a way of democratizing New Governance, pro-
viding the necessary safeguards for preventing abuse or con-
centration of power while, at the same time, ensuring efficiency
of regulation, could be ensured through the design of guidelines
or rules which promote decentralization and participation of
different actors. This democratizing process could be estab-
lished with the involvement of both the European Parliament
and national parliaments in New Governance processes and
practices. The latter could have a key role in setting a meta-
governance frame (as outlined above) defining objectives and
procedures, monitoring progress towards agreed goals and re-
vising the processes in light of the results achieved. As posited
by Becker, ex ante involvement would improve representation
and deliberation during the drafting process of national reports
submitted by Member States in the context of coordination
processes as well as ex post scrutiny of countries’ promised
reforms and overall performance (Becker, 2009). Their involve-
ment in New Governance, however, would require a partial
transformation of their traditional role as legislators: pass
framework legislation containing commitments to a broad set of
goals such as OMC objectives, establish administrative infra-
structures to stimulate decentralized experimentation, monitor
the efforts of local units to improve their performance against
them, pool resulting information, set provisional standards in
light of what they have learned, review the results and revise
framework objectives and administrative procedures accord-
ingly (Zeitlin, 2005). This renewed role may give national leg-
islators access to insights and tools for producing better legisla-
tion and provide them with grounds for criticizing government-
tal legislative and administrative measures (Duina & Raunio,
2007; Zeitlin, 2005). Moreover, this could generate what Sa-
bel and Zeitlin (2008) have termed a “democratizing destabili-
zation effect” and could also help to remove the primacy given
to executive federalism which has empowered the governments
and marginalized the European and national parliaments12. The
level and type of involvement of national parliaments would
vary depending on the institutional structure of the country’s
democratic system.
However, the involvement of national parliaments in New
Governance processes such as the OMC is not easy to ensure in
practice. The Bruegel Policy Brief (Pisani-Ferry & Sapir, 2006)
containing comparative data on the involvement of national
parliaments in the design and adoption of National Reform
Programmes (NRPs) shows that there is still little involvement
and suggests the setting up of minimum standards for national
parliament involvement in the NRPs. In addition, as noted by
Benz national parliaments have to rely on information provided
by the governments which could be manipulated (Benz, 2007).
Hence, current involvement of national parliaments does not
sufficiently help to improve the legitimacy and effectiveness of
coordination processes not only because parliaments are not
involved in the drafting process but also because they seldom
make NRPs topic of discussions in plenary sessions. The end
result is that the current state of parliamentary involvement
does not trigger any further political contestation and thus fails
to empower Member States legislative bodies (Becker, 2009).
Further research, therefore, needs to be carried to identify ways
for ensuring effective participation of national parliaments and
how courts may act not only in their traditional role of ensuring
law enforcement but also their renewed role within New Gov-
ernance processes.
EU law must constantly put forward claims about itself cen-
tred around the idea of self-betterment or European eudaimo-
nia13 which underpins the justification for any EU legal norm
(Chalmers, 2009). This concept “requires EU law to grant indi-
viduals the structures, entitlements, responsibilities and protect-
tion to make better and more successful lives for themselves”
(Chalmers, 2009). This idea of self-betterment has normative
and deontological implications for EU action especially when it
claims to offer something that cannot be offered by national law.
As Chalmers convincingly puts it a central mission for EU law
is not simply to better citizens’ lives but to develop and realize
accounts of their lives that they perceive as their own rather
than set out for them (Chalmers, 2009).
Against this backcloth, it is necessary to provide the basis for
developing a system of EU governance which not only facili-
tates but also, and more importantly, actuates in an equal man-
ner the self-determination of all actors involved. In particular, it
must provide the communicative and cognitive conditions and
procedural safeguards for ensuring democratic representation
and participation in the EU at all levels of decision and pol-
icy-making thus recalling ideas of proximity and subsidiarity as
well as giving renewed value to the concept of active Union
citizenship. So far attempts have been rather piecemeal and
trapped within a logic of regulation whereby processes and
techniques based on a top-down and command and control type
of governance are considered preferable to those based on dif-
ferentiation and experimentation, if not in the short-term cer-
tainly in the long-term. This binary approach to New Govern-
ance and the classic Community Method stifles processes of
self-transformation of the EU, which have been made necessary
by various significant internal and external structural changes.
A more careful analysis, as noted by Dawson (2009) reveals
that the debate over soft law methods within the EU has not
only produced anxieties about law’s role in the EU, but also a
number of conceptual accounts which posit the development of
instruments such as the OMC not as indicative of a move away
from law, but as part of a distinct and novel stage of legal inte-
gration. In the context of this new phase of legal integration, the
strengths of New Governance, law and constitutionalism should
be combined together for the pursuit of the EU’s self-better-
From the outset, the explicit aim has been to revisit and
problematize traditional meanings and languages of law and
constitutionalism in the EU-and in this context classical legal
methodology—as well as rescuing New Governance both from
its supporters and its enemies. To this end the paper questioned
narrow understandings of democracy, legitimacy and account-
ability and, in this context, the role of institutions and non-state
actors, including national parliaments in the EU. In so doing, it
also explained how governance does not substitute for govern-
ment, but complements it. There is no governance without gov-
ernment, as there is no soft law without hard law (Mӧllers,
2006). On the basis of this approach, the paper explored possi-
ble encounters between law, constitutionalism and New Gov-
ernance processes and mechanisms in order to put forward a
13The term is taken from Aristotle, Nichomachean Ethics (translated by W
Ross) (Clarendon: Oxford, 1995) book I, paras 4 - 7.
12For a proposal on the parliamentarization of the OMC, see Dawson, (Daw-
son, 2010
Copyright © 2013 SciRes. 17
loose conceptual frame which may help in developing a hy-
bridized system of EU governance.
The explorative investigation carried out in the present paper
is important not only for addressing and rethinking problems of
effectiveness and implementation gaps of both New Govern-
ance and classical modes of regulation but also for the future
direction and evolution of EU law and, more broadly, the exis-
tence of the EU which is navigating in unchartered waters. An
academic debate which must continue.
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