Three Generations of Participation Rights in European Administrative Proceedings

This paper develops a conceptual framework for analyzing the development of participation rights in Community administration from the early 1970\u27s to the present day. Procedural rights can be divided into three categories, each of which is associated with a distinct phase in Community history and a particular set of institutional actors. The first set of rights, the right to a fair hearing when the Commission inflicts sanctions or other forms of hardship on individuals, first emerged in the 1970\u27s in the context of competition proceedings and later in areas such as anti-dumping and structural funds. This phase was driven by the Court of Justice and an English, and to a lesser extent, German conception of the value of a fair hearing. The rise of transparency in the 1990\u27s-- the requirement of openness in all Community institutions, including administration--marks the second stage. The drive for transparency was led by certain member countries with longstanding traditions of open government--the Netherlands, Denmark, and Sweden--as well as the European Parliament. The most recent phase in the development of process rights is the debate on whether and under what conditions, individuals, firms, and their associations, billed civil society, should take part in Community legislative and rulemaking proceedings. The Commission and now the Convention on the Future of Europe have been the keenest proponents of giving citizens and their associations a right to participate in rulemaking and legislative proceedings. Civil society participation is then critically examined. Representation--not expertise or good management practices--is the only justification for allocating power, within the Community policymaking process, to individual citizens and their organizations. Yet there is no consensus in Europe, where republican, corporatist, and liberal traditions continue to flourish, on the legitimacy of representation outside of political parties and the electoral process. Without wider consensus, I conclude that associational participation in Community policymaking should not be entrenched and that the Commission should, in mediating the informal influence of civil society actors, act in awareness of its innate institutional bias toward liberal interest group pluralism

Creating European Rights: National Values and Supranational Interests

This Article develops an explanation for the emergence of individual rights before the European Commission, one of the oldest and most powerful international organizations in existence today. I argue that, in the early days of the European Community, rights before the Commission were patterned on the laws and legal traditions of the dominant Member States. Changing political circumstances largely outside the control of the Commission and other European institutions gave rise to a number of discrete, historical challenges to their authority. Most of these challenges came from citizens with allegiances to minority, national constitutional symbols and practices who were determined to retain them in the face of European integration. To preserve and extend their authority, European institutions adopted these constitutional ideals and hence altered the nature of European rights. In developing this explanation, I draw upon a number of theories in political science. One of the longest-running debates over European integration is the balance between sovereign states and supranational institutions in setting the pace of European integration. While some scholars argue that traditional state interests and the balance of power among states are critical, others take supranational institutions--and their interest in expanding their powers and pushing forward integration--as the decisive force behind integration. My review of the origins of rights before the Commission shows that both sets of actors, at different points in time, were agents of rights. More importantly, the empirical analysis brings to light two important constraints on the ability of states and supranational institutions to design European rights to their advantage, often overlooked in the political science literature. The first is history writ large: understandings of fair and democratic government developed within the nation-state and representing the accumulation of experiences, beliefs, and norms over generations. The second is history writ small: episodic, external challenges to the authority of European institutions that serve as the context in which such institutions further their interests. These factors should be taken into account in explaining the rights that define what it is to be a European citizen today

Civil Society and International Organizations: A Liberal Framework for Global Governance

An earlier draft of this Article was presented at a faculty workshop at the University of Illinois College of Law. (Author\u27s Manuscript, March 2005) This analysis of how civil society can contribute to a better system of global governance draws on the political philosophy of civil society and the comparative law of democracy. Its first part describes the civil society phenomenon in three different international organizations: the World Bank, the World Trade Organization, and the European Union. Part Two puts forward the moral principle upon which my argument rests: liberal democracy. The next part sets the stage for the discussion of contemporary liberal theories of civil society by reviewing the history of the concept. Part Four critically examines the four dominant theories of citizen associations and their contribution to the good life in democratic societies. These theories serve as the basis for evaluating the pro-civil society reforms that have been made to date in international organizations and for suggesting additional areas of improvement. Yet the review of the literature also demonstrates, somewhat surprisingly, that the political philosophers and the civil society activists are talking past one another: the theory does not address head-on the question whether associations should be represented in public decisionmaking. For civil society theory, the democratizing potential of civil society lies in collective life outside the state. Thus, Part Five explores the comparative law of contemporary democracies and shows that interest and identity groups can participate in public life in at least three different ways: pluralism, corporatism, and republicanism. The concluding section returns to the institutional reform of international organizations. In view of the premises and ideals that inform different cultures of democracy and the realities of politics in the international realm, I argue that the public law of corporatism is the most appropriate for today\u27s international organizations

Mixed Administration in the European Data Protection Directive: The Regulation of International Data Transfers

This article analyzes mixed administration through a detailed case study of the operation of the European Data Protection Directive in Italy. For purposes of this contribution, a mixed procedure is an administrative process, established by Treaty or European legislation, in which national and European administration share responsibility for a single determination of rights and duties under European law. The article proceeds in four parts. First, I analyze the mixed procedure for transfers of personal information to third countries as it appears on the face of the Data Protection Directive. Second, I describe the experience with the procedure in the brief period from implementation of the Data Protection Directive to the present day and conclude that it has not yet come to life. Third, I suggest that the sharing of administrative responsibility creates special problems for democratic accountability and, to a lesser extent, individual rights. Lastly, I turn to the larger puzzle of why member states sometimes decide to retain administrative authority for themselves, i.e. classic indirect administration, and other times decide to share it with the Commission and other member states sitting in comitology committees

Creating Rights in the Age of Global Governance: Mental Maps and Strategic Interests in Europe

This Article takes a first step towards developing a positive theory of rights in institutions of global governance through a study of the European Commission, one of the oldest and most powerful international organizations in existence today. I draw on the extensive political science theory on the European Union, in particular historical institutionalism, to explain the constellation of rights that European citizens are guaranteed today in their relations with their executive branch. Rights against government were created in three phases, each of which was the product of a strategic move by one or more European institutions to preserve authority in the face of opposition and each of which drew from a mental map of good government developed within the confines of the nation-state. As a result, today, European citizens enjoy three major, historically distinct, sets of rights in their relations with Europe\u27s executive branch: the right to a hearing, drawn from the English common law tradition, the right to transparency, based upon northern traditions of open government, and the right to civil society participation, derived from both the international sphere and domestic traditions of corporatist interest representation. This Article also considers a number of competing theories of rights in European governance and shows that their predictions are not borne out by the evidence. Lastly, I develop the implications of my theory for another, emerging system of global governance, the World Trade Organization

Review of Rulemaking, Participation and the Limits of Public Law in the USA and Europe by Theodora Th. Ziamou and Review of Governing by Numbers: Delegated Legislation and Everyday Policy-Making, by Edward C. Page

This article reviews two books: Rulemaking, Participation and the Limits of Public Law in the USA and Europe by Theodora Th. Ziamou and Governing by Numbers by Edward C. Page. In Rulemaking, Ziamou compares the law of rulemaking in the United States, Germany, Greece, and England. Ziamou covers the distinction between administrative rules and other administrative acts, the constitutional law of rulemaking, rulemaking procedure, the ability of private organizations to adopt rules that bind themselves and third parties, and judicial review. Readers are left with a better understanding of American and European rulemaking but may not be convinced that Europe has a problem or that the American system is any better. Governing by Numbers is also about rulemaking in Europe, specifically Great Britain, but this book addresses the very different perspective of qualitative political science. Page focuses on rules, known in Britain as delegated legislation or statutory instruments. By doing so, he studies the broader phenomenon of what he calls “everyday politics,” that is, matters that do not mobilize political parties and cause partisan debate in Parliament and the press, but are nevertheless significant. Page concludes that the government dominates both high politics and everyday politics; however, junior ministers, low-level civil servants, and highly specialized lobbying groups are politics’ most important players

Material Liberty and the Administrative State: Market and Social Rights in American and German Law

This chapter begins with a forgotten story from American constitutional law. Raymond Belcher worked for a coal mining company in Lynco, West Virginia. During his working life, he paid into the federal insurance scheme for disability—Social Security Disability Insurance (SSDI). Belcher later broke his neck on the job and claimed on his federal SSDI insurance. But he was in for a bad surprise. In 1965, after he began contributing but before he became disabled, Congress enacted an “offset” provision to reduce benefits for individuals like him who qualified for both state-run worker’s compensation and federal SSDI. Belcher went all the way to the Supreme Court to challenge Congress’s offset provision—and coming on the heels of iconic Goldberg v. Kelly (1970), it seemed like he might very well succeed. But in Richardson v. Belcher (1971), the Court said that although there was procedural due process for social insurance awards, there was no substantive protection from arbitrary Congressional action—even though there were plenty of disabled workers who were receiving the full SSDI check and a separate (non-worker’s compensation) insurance payout and who therefore, from Belcher’s perspective, appeared identical. The result under German constitutional law is the opposite. Under German constitutional law, individuals like Belcher have a property right that triggers a proportionality analysis, that gives rise to robust equality analysis of statutory programs, and that frequently requires grandfathering treatment when social insurance programs are changed after individuals begin contributing but before life circumstances force them to draw upon the social insurance. This American-German contrast applies not just to payments from contributory social insurance schemes but to the entire range of administrative programs that affect the entire range of material rights—negative rights such as money, positive rights such as the basic income necessary for dignity, and the vast set of rights that fall in between, including payouts from social insurance schemes and operating a business in a regulated market. The comparative, German law serves to draw out the distinctiveness of American constitutional law—tall on procedure but short on substance. It also points to possible lessons for contemporary American debates on the administrative state’s legitimacy and economic justice

Creating European Rights: National Values and Supranational Interests

This Article develops an explanation for the emergence of individual rights before the European Commission, one of the oldest and most powerful international organizations in existence today. I argue that, in the early days of the European Community, rights before the Commission were patterned on the laws and legal traditions of the dominant Member States. Changing political circumstances largely outside the control of the Commission and other European institutions gave rise to a number of discrete, historical challenges to their authority. Most of these challenges came from citizens with allegiances to minority, national constitutional symbols and practices who were determined to retain them in the face of European integration. To preserve and extend their authority, European institutions adopted these constitutional ideals and hence altered the nature of European rights. In developing this explanation, I draw upon a number of theories in political science. One of the longest-running debates over European integration is the balance between sovereign states and supranational institutions in setting the pace of European integration. While some scholars argue that traditional state interests and the balance of power among states are critical, others take supranational institutions - and their interest in expanding their powers and pushing forward integration - as the decisive force behind integration. My review of the origins of rights before the Commission shows that both sets of actors, at different points in time, were agents of rights. More importantly, the empirical analysis brings to light two important constraints on the ability of states and supranational institutions to design European rights to their advantage, often overlooked in the political science literature. The first is history writ large: understandings of fair and democratic government developed within the nation-state and representing the accumulation of experiences, beliefs, and norms over generations. The second is history writ small: episodic, external challenges to the authority of European institutions that serve as the context in which such institutions further their interests. These factors should be taken into account in explaining the rights that define what it is to be a European citizen today