What's in a Label? The EU as 'Administrative' and 'Constitutional'

Abstract

How shall we ‘come to terms’ with the complex reality of governance in the European Union? If we regard this challenge in strictly legal terms and, more importantly, give the pronouncements of the European Court of Justice (ECJ) and sympathetic legal commentators the dispositive role in our determination, then the response is clear: The EU is a ‘constitutional’ level of governance in its own right, with the EU treaties serving as a ‘constitutional charter of a Community based on the rule of law’. There is another sense of ‘coming to terms’, however, that is less ECJ-centric. It looks beyond the nominal and legal and moves into the sociological and historical domains. It recognizes that ‘coming to terms’ must focus on the core disconnect at the heart of European integration, in which regulatory power has undoubtedly shifted to the supranational level but the EU lacks autonomous democratic and constitutional legitimacy to support the exercise of that power in its own right. The EU legal order clearly enjoys a legal, technocratic and functional legitimacy sufficient to support autonomous regulatory power of a uniquely powerful supranational type. The problem with the nominal constitutionalism of the ECJ and legal commentators, however, is that it proceeds ‘as if’ the EU possesses robust democratic and constitution legitimacy in its own right, in defiance of the EU’s actual socio-historical character. Two features of EU public law — nationally grounded resource mobilization and nationally mediated legitimacy — point strongly to the EU’s character as ultimately derivative, delegated, and ‘administrative’, operating as a regulatory ‘agent’ of democratic and constitutional ‘principals’ who remain largely national. These features of EU governance focus our attention on what we can call ‘the power-legitimacy nexus’; that is, the linkage between the nature of the legitimacy enjoyed by a legal or political order (legal, technocratic, functional, or robustly democratic and constitutional) and the scope of power that the legal order can then successfully exercise. Using a comparative administrative law perspective, this chapter argues that several judicial doctrines of the ECJ — relating to ‘legal basis’, ‘subsidiarity’ and ‘supremacy’, among others — should be reformed to bring them more fully into line with the EU’s actual socio-historical character as an instance of supranational administrative governance. Rather than indulging in an ‘as if’ constitutionalism as the ECJ has done, the public law of European integration should confront the EU as it actually is. In ‘coming to terms’ with *this* reality, we must do more than simply label it; rather, we must also understand how European law, both national and supranational, should evolve to accommodate its underlying socio-historical disconnect and the contradictions it raises.