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Abstract:
The rejection of the European Constitutional Treaty by the French and Dutch electorates seems to reflect, to a non-majoritarian but decisive degree, the uneasiness that the citizens feel towards an ever more important Europe which they perceive as governing them from above or from the outside with insufficient democratic legitimacy, and without the power that effectively reflects their concerns, in particular as far as the future of European social models is concerned. The supremacy doctrine represents the legal incarnation of the anxieties regarding these concerns. This doctrine seems substantively biased in that its promotion of European law implicitly ranks economic rationality higher than social rationality, and systems integration higher than social integration.

This reading of the supremacy doctrine has its fundamentum in re. But so has a non-orthodox interpretation of this doctrine which assigns more weight to the autonomy of constitutional democracies and interprets supremacy as a doctrine compensating nation state failures and imposing legal commitments of co-operation on the Member States. European law, pursuing such objectives, can be understood as a new species of conflict of laws. This law derives its legitimacy from its compensatory functions, in particular, the potential of European law to respond to the structural inability of nation states to avoid the external effects of their decisions on the citizens of foreign jurisdictions and to deal with transnational problems democratically.

Christian Joerges' plea for a supranational law of conflict of laws based on conflict of laws methodology which aims to accomplish a European unitas in diversitas is commented on by Robert Wai, Toronto, Damian Chalmers, London, Rainer Nickel, Florence and Florian Roedl, Florence.

EU constitution, EU law, supremacy

Abstract:
Europe continues to search for its - "European" - social model and the, search seems to become increasingly urgent. It is no longer just the "democratic deficit", but also and alongside it, the "social deficit" of the EU which needs to be cured. That new concern is, in fact, a rejection of the older answers. According to the ordo-liberal interpretation of the European legal order as an "Economic Constitution" and, successively, in the analyses of the EU as a "Regulatory State", the sphere of social policy was to remain a domain of the nation state. This seems to have become impossible. The Constitutional Treaty, indeed, makes a new commitment: "The Union shall work for a Social Market Economy". This paper submits that this commitment is conceptually a failure, and politically not credible. The Convention preparing the Constitutional Treaty has apparently ignored the meaning of the concept in the form in which it was shaped in Germany's post-war period. This history entails some pitfalls for the Convention's intentions, as the German "Social Market Economy" involved not only a claim of integrating social concerns into the market economy, but also served to restrict claims for instruments of social policy remarkably at the same time. Moreover, the Convention has failed to confer a new and independent content to the concept of the "Social Market Economy", which could help to overcome the concept's ambivalent history, as well as the Union's real "social deficit". The few innovations, the Charter's Fundamental Social Rights and the Open Method of Co-ordination, were incorporated in such modest and non-committal forms that their potential to further the case for "social Europe" seems marginal. The paper concludes that the invocation of the "Social Market Economy" in the Constitutional Treaty is conceptually flawed and is politically an all too risky promise which may raise expectations which it will subsequently fail to deliver.

Governance, social policy, economic policy, constitution building

Abstract:
This essay developed out of my contribution "Das Recht im Prozess der Europaischen Integration" to Markus Jachtenfuchs/Beate Kohler-Koch (eds.), Europaische Integration, Opladen: Leske + Budrich, 1996, 73-108 [in English: Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration, 2 (1996) European Law Journal, 105-135]. Since the paper seeks to address political scientists, some of its sections, especially those on the history of Europe's 'juridification', may encounter deja vu reactions from lawyers. But this should not be true for the approach as a whole. "Constitutionalisation" comprises in my understanding, both individual liberties and the rights of citizens to political participation. This is why the impact of Europeanisation and globalisation on the configuration of the economic system, the institutionalization of the welfare state and labour market are of "constitutional" importance. They affect profoundly the balance of private autonomy and political rights. I have little hope that the so-called "Convention Method" will provide us with more than partial response to these challenges which Europe faces in the process of its constitutionalisation. Nor should the Charter of Fundamental Rights be expected to resolve these issues.

Abstract:
The paper reacts to a widespread perception of the development of the European Community after the adoption and implementation of the internal market programme. These perceptions are characterised as endorsing the emergence of a "market without the state". This vision, the paper argues, is neither normatively sound nor empirically correct. The normative doubts are elaborated with the help of a comparative discussion of three competing approaches to the understanding of European Integration (German "Ordnungspolitik", Ipsen's Neo-Functionalism, Joseph Weiler's Dual Supranationalism). The empirical part of the argument is elaborated with the help of of a comparison of the internal market programme and its actual implementation. This implementation can be characterised as a rebirth of regulatory politics. After a discussion of current approaches or suggestions such as regulatory competition, neo-corporatism and the building up of non-majoritarian institutions of governments, the paper asserts, that the Community will have to embark upon the task of meditating between mainly functional needs of market integration and broader regualtory concerns of the European Polity. Both the analysis of legal perception of the European integration process and the normative suggestions are further taken up in a related paper: Joerges, State without a Market? Comments on the German Constitutional Court's Maastricht-judgement and a Plea for Interdisciplinary Discourses, European Integration online Papers Vol. 1, No. 20

European integration, economic law, harmonisation, standardisation, regulatory competition, networks, regulatory politics, social regulation, polity building, governance, institutionalisation, institutions, legitimacy, political science, law

Abstract:
This paper seeks to synthesise two concerns which are usually discussed separately. One concerns the much discussed democracy deficit of the European polity. In this respect, it is considered that the democratic quality of the EU needs to be discussed in conjunction with Europe's potential to enable European citizens to see themselves as the sovereigns of the economic and social order. The decoupling of Europe's economic constitution from the social constitutions of Member States by the 1957 EEC Treaty has created a "social deficit" of the European construction which needs to be overcome if the EU is to gain full democratic legitimacy. The second concern is with the modes of governance that Europe has established in order to respond to irrefutable regulatory needs, including the quests for a European social model. Here, Europe is, especially in areas of social policy, resorting to soft law and non-legal governance techniques, which seem hardly reconcilable with Europe's commitment to the rule of law. Before paying the high price of de-legalisation, Europe should try out the alternative of re-conceptualising European law as new type of conflict of laws. This law would seek to attain what the Constitutional Treaty had called the "motto of the Union", namely, a reconciliation of "unity and diversity"; it would not only help to rescue the rule of law but also serves to enhance Europe's chances of coping with the unresolved substantive tensions, including the social deficits of the European polity.

European law, democratic deficit, social policy, governance

Abstract:
The present efforts in Europe to achieve more uniformity in private law and the debates on a European civil code need to be understood in a wider context. Europe is plagued by concerns over its problem-solving potential and its acceptance amongst citizens. The response is ambitious projects. Eastern Enlargement, a Constitution, a Code. The project of a European civil code is the least visible among the three - and yet specifically instructive. The Europeanization of private law is to a large degree about the restructuring of the linkages of private law with its more comprehensively, albeit selectively Europeanized regulatory environment and the manner in which it is embedded in welfare state institutions. Europe has to learn how the openness of national markets can coexist with differences in legal cultures, differently shaped relations between state and 'society'. In its multi-level system of governance none of the established legal disciplines can provide guidance for the denationalization and Europeanization of private law. The Europeanization process needs to be understood and organized as a process of discovery and learning. Only then can Europe can make productive use of its diversity.

Europeanization, multilevel governance, national autonomy, direct effect, economic law, European citizenship, harmonization, supremacy

Abstract:
Legal and political science cannot merge, but they should, at the very least, 'listen to each other'. This working paper is a further step in an ongoing interdisciplinary cooperation which seeks to make sense out of Louis Henkin's famous admonition. This co-operation had begun with a research project on the European comitology system in 1995 and the publication, inter alia, of two articles on deliberative supranationalism in 1997. The present article is an effort to go beyond the scope of our original analyses and to explore the potential of our guiding ideas at a more general level of integration research. In Part I of this paper, Jürgen Neyer summarises strands of normative and positive political theory on which deliberative approaches to international and European governance can build. These approaches not only support coherence, social acceptance and normative recognition, they also have in important potential for the design of empirical studies. They seem to be particularly promising for the understanding of the institutional design and the political process in the EU. In Part II, Christian Joerges first summarises the objections against deliberative suprantionalism and comitology in legal science. He then presents a conflict-of-law's approach to European law which builds upon the 1997 articles and seeks to develop their normative-legal perspectives further. European law is interpreted as a new type of conflict of law which constitutionalises a European unitas in pluralitate. Comitology is interpreted as a cognitive opening of the legal system which institutionalises a second order of conflict of laws.

comitology, constitutionalisation, decentralisation, European public space, integration theory

Abstract:
The essay starts from the assumption that the efforts to cure Europe's democracy deficits will also have to address the social problematique of the Europeanization process. This is a challenge with new dimensions. Europe had started its integrationist path as a mere economic community. In its formative era, the constitutional perspectives of German Ordo-liberalism were attractive. In the ordo-liberal account, the European polity has a twofold structure: At supranational level, it is committed to economic rationality and a system of undistorted competition.

Redistributive (social) policies could - and should - be left to the Member States. This edifice was refined in the 1970s and 80s. Monetary Union and the Stability Pact completed it. The German Constitutional Court's Maastricht judgment endorsed its constitutional validity. However, the new dynamics and the strive for an "ever closer Union" in the Maastricht Treaty has led to a strengthening of European regulatory policies and a broadening of their scope, which were incompatible with the ordo-liberal legacy. The erosion of the economic constitution has not paved the way to a cure for Europe's social deficit. Neither the Open Method of Co-ordination nor the commitment to a "social market economy" in the Constitutional Treaty nor the new "social rights" provide a conceptually sufficient and politically credible basis for this end.

Legitimacy, open coordination, economic law, stability pact, welfare state, European Convention

Abstract:
This paper is essentially a translation of a comment in German (Joerges 2000) on a series of articles in which Rainer Schmalz-Bruns (1998, 1999a, 1999b) developed a concept of legitimate governance beyond the constitutional state, which he called "deliberative supra-nationalism" and contrasted with what Jurgen Neyer and the present author had suggested under the same title (Joerges/Neyer 1997). Our querelles allemandes were not specifically Teutonic: while Schmalz-Bruns presented his approach as a systematic elaboration of the theories of deliberative democracy, based, in particular, on recent contributions by Joshua Cohen, Michael Dorf and Charles Sabel (Cohen/Sabel, 1997; Dorf/Sabel 1998), Jurgen Neyer and I had offered an interpretation of institutional innovations and decision-making practices as observed in the European market-building project. This discussion has had precursors and follow-ups in various contexts, among both lawyers and political scientists. This essay should hence be understood as contribution to an ongoing debate.

European integration, comitology, democratization, European Agencies, expert committees, governance, legitimacy, multilevel governance, non-majoritarian institutions, risk regulation, supranationalism, political science, law

Abstract:
It is perhaps a truism to note that 'the consumer' is but a role that is played by human subjects. This insight leaves us, as lawyers, with one vital question: how can or does the legal system meaningfully rationalise its encounters with the consumer? Can it, and if so to what way, shape the act of consumption? Can it even ensure that the 'fact' of consumption translates into 'good' normative institutions.

In a summarizing account of legal encounters with the consumer since the era of laissez-faire liberalism we seek to show that this potential does exist within the constitutional state. However, as markets, political systems and consumers have broken free from national communities we need to ask: will the achievements of constitutional democracies survive Europeanisation and Gliobalisation? In our assessment of current trends in the EU we diagnose a seemingly paradoxical alliance between a new orthodoxy of neo-liberalism within market relations and a de-legalisation of regulatory policies. At international level, our analysis is restricted to a single case (namely, the recent report of a WTO Panel on the controversy over Genetically Modified Organisms (GMOs)). It has become increasingly clear that the notion of a international consumer interest has been reduced to one of health and safety that is identified and secured with simple recourse to 'scientific expertise'. 'Sound science' has become transnationally binding yardstick that both orients and limits consumer policy. The vision of a 'consumer citizen', who would actively participate in the transformation of consumption into a normative 'good', has become a matter of utopian history.

Europeanisation, consumer law, globalisation, international trade, risk regulation, WTO

Abstract:
The historical evolution of free trade has been accompanied by a plethora of debates, concerning both its positive effects and social costs. During the last decade, the subject of these disputes has markedly changed. The main objective of the General Agreement on Tariffs and Trade (GATT) concluded 1947, was initially the reduction of tariffs introduced by states to protect their national economy. In this respect, the agreement has been markedly successful. Since the early 1970s, however, non-tariff barriers to free trade have moved to the centre of attention. This change of focus was fostered by more intensified domestic regulation especially in the fields of health and safety, consumer and environmental protection. These concerns are of such domestic significance that they cannot simply be abandoned for the sake of free trade; however, it also is common opinion that regulations in these areas cannot be accepted, if they merely mask protectionist interests. In 1994, the international trade system adapted to this situation by transforming the GATT into the World Trade Organization (WTO). The most important reforms included an overhaul of its procedures of dispute settlement and the conclusion of special agreements concerning non-tariff barriers to free trade such as the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT). These agreements aim at the balancing of their main economic objective, free trade, with domestic regulatory concerns of WTO members. This bundle of regulations has certainly furthered the emergence of transnational "governance arrangements." Such new forms of "transnational governance" have lent renewed importance to "old" legal issues: How can new forms of transnational governance be qualified legally? What can be said about their (social) acceptance and (normative) legitimacy? Can this form of governance be "constitutionalized" in such a way that law can defend or even regain its function as guarantor of and yardstick for legitimate governing?

Governance, international regimes, legitimacy, multilevel governance, national autonomy, risk regulation, social regulation, standardisation, international trade, WTO

Abstract:
As the title of this lecture indicates, it builds upon the author?s previous ananlysis of the European Communities' market building efforts (C. Joerges, The Market Without the State? The "Economic Constitution" of the European Community and the Rebirth of Regulatory Politics, European Integration online Papers, Vol. 1, No. 19. The analytical approach chosen includes a "comparative analysis" of legal and political science theories of European integration. It is a asserted, that the schisms between legal and political sciences inhibit an adequate understanding of the European Polity. Lawyers risk to overlook important institutional innovations; political scientists are urged to address the "constitutionalist" dimension of the European law. The theoretical argument is then substantiated by an analysis of the German Constitutional Court's decision on the Maastricht Treaty. Without even mentioning the normative visions of Germany?s neo-liberal tradition, the Constitutional Court has, while pretending to defend the nation state, in fact endorsed the idea of a purely economic constitution of the European Community. The paper argues that the Europeanization process is de facto and de jure depending upon a constitutional vision which is to overcome the separation between "political" nation states and an "unpolitical" European governance structure.

European integration, German Constitutional Court, supranationalism, regulatory politics, social regulation, polity building, governance, institutionalisation, institutions, legitimacy, political science, law

Abstract:
The defeat European constitutionalism has experienced in the French and the Dutch referendum has many reasons. The deficiency this contribution addresses is the lack sensitivity for the historical dimensions of the integration project in general and the darker legacies of law in particular. Three exploratory steps are undertaken: (1) The first deals with the diversity of European pasts. It is submitted that European constitutionalism must respect this diversity and promote toleration rather than homogeneity. (2) The second discusses the presence of European pasts in two fields. One is the controversy over "social Europe" which is traced back to divergent national histories, memories and anxieties. The other concerns the search for a European identity and citizenship. (3) The reluctance of Europeans to confront the darker side of their pasts, including the failures and fragility of law and legal institutions, has many good and bad reasons. We risk getting involved in a bitter politicisation of our memories. The contest over memories seems, however, not only unavoidable; it might become a constructive exercise. The search for a new future in post war Europe was a response to the atrocities of the Nazi period. That legacy is still alive and can be revitalized. The readiness to face Europe's past can be understood as a European vocation which may provide the integration project with an unheard of specific legitimacy. In his comment Dario Castiglione discusses Christian Joerges's ideas of deliberative supranationalism and of the 'conflict of disciplines'; and suggests that his analysis of the relevance of the past can be extended by distinguishing between three different modes in which the past can be used: as present in the modern predicament; as a form of public discourse; and as a way of shaping and confronting one's own identity.

constitution building, European identity, legitimacy , Nation-state, supranationalism, European citizenship, supremacy, social policy, European Convention

Abstract:
There are good reasons to expect that the process of European integration might bring about a renaissance of comparative law and private international law, the two disciplines, in which Herbert Bernstein had excelled in the New and the Old World. To be sure, Europe's legal systems must respond to processes of economic and political integration. It seems nevertheless quite unrealistic to expect from the European Union any comprehensive harmonisation of private law. Europe's systems of private law are deeply entwined in the economic and political histories of the polities which they order and to which they owe their legitimacy. Europe's identity is defined by the diversity of its legal heritage. Should not deepened comparative studies prepare and accompany the search for a Europeanised private law system; and is it not the very vocation of private international law to organise constructive responses to legal diversity? Pertinent efforts have been undertaken and are under way. And yet, the Europeanisation process, so this essay argues, follows a logic of its own, which none of our inherited legal disciplines seems able to cope with. Three difficulties will be discussed. One is inherent in very general developments of post-classical private law, in particular its linkages with regulatory and distributive policies opening to social values human rights. Comparative law has often furthered, international adapted this (in Germany) so-called materialisation process. Europeanisation, however, adds challenging new dimensions. They are inherent the multi-level structures of European polity hence inevitable. Interventions into general (the codified systems continental Europe common UK) have so far been quite marginal. But very intensively comprehensively re-organised frameworks transactions whereas welfare state institutions which relations embedded remained national domains. Europeansation is therefore too a large degree about restructuring (Europeanised) environment embeddedness institutions. Europeanisation affects dimension through freedoms it grants citizens.

Europeanization, European law, harmonisation

Abstract:
This paper responds in its first sections to a series of articles in which Rainer Schmalz-Bruns developed a concept of legitimate governance beyond the constitutional state, which he called 'deliberative supranationalism' and contrasted with what Jurgen Neyer and the present author had suggested under the same title. The Epilogue of the paper first comments on more recent critiques brought forward especially by contributors to this Special Issue of the ELJ and then on the programmatic rejection of comitology by the European Commission's White Paper on Governance in the EU. Our querelles allemandes were not specifically Teutonic: while Schmalz-Bruns presented his approach as a systematic elaboration of the theories of deliberative democracy, based, in particular, on recent contributions by Joshua Cohen, Michael Dorf, and Charles Sabel, Jurgen Neyer and I had offered an interpretation of institutional innovations and decision-making practices as observed in the European market-building project. This discussion has had precursors and follow-ups in various contexts, among both lawyers and political scientists. This essay should hence be understood as a contribution to an ongoing debate.

Abstract:
This paper responds in its first sections to a series of articles in which Rainer Schmalz-Bruns developed a concept of legitimate governance beyond the constitutional state, which he called 'deliberative supranationalism' and contrasted with what Jurgen Neyer and the present author had suggested under the same title. Our querelles allemandes had follow-ups in various contexts, among both lawyers and political scientists. The second part of the paper first summarizes and comments on more recent critiques. It then deals with the programmatic rejection of comitology by the European Commission's White paper on Governance in the EU of July 2002.

Abstract:
The "comitology mode" of decision-making can be interpreted as a response to the non-unitary and non-hierarchical ("heterarchical") nature of the EU. It is of exemplary importance since it represents an institutionalized sui generis response to the regulatory needs of the "multilevel system of governance sui generis" that characterizes Europe's political economy.

Abstract:
The Study Group on Social Justice in European Private Law are: Gert Bruggemeier (Bremen), Mauro Bussani (Trieste), Hugh Collins (London), Aurelia Colombi Ciacchi (Bremen), Giovanni Comande (Pisa), Muriel Fabre-Magnan (Nantes), Stefan Grundmann (Berlin), Martijn Hesselink (Amsterdam) (Chairman), Christian Joerges (Florence), Brigitta Lurger (Graz), Ugo Mattei (Torino), Marisa Meli (Catania), Jacobien Rutgers (Amsterdam), Christoph Schmidt (Florence), Jane Smith (Bremen), Ruth Sefton-Green (Paris), Horatia Muir Watt (Paris), Thomas Wilhelmsson (Helsinki).

Abstract:
The present report contains the proceedings of the inter-disciplinary workshop ‘Transnational Standards of Social Protection: Contrasting European and International Governance’, which was jointly organised by the EU funded project Reconstituting Democracy in Europe (RECON) and the Collaborative Research Center 'Transformations of the State' at the University of Bremen.

The report contains 10 contributions concerned with different aspects of social regulation within the EU as well as within global structures such as the WTO.

International Trade, Social Protection, Human Rights, Services, Governance, WTO, EU, Joerges, Kjaer

Abstract:
The judgments of the European Court of Justice (ECJ) of December 2008 in Viking and Laval on the compatibility of national collective labour law with European prerogatives have caused quite a heated critical debate. This article seeks to put this debate in constitutional perspectives. In its first part, it reconstructs in legal categories what Fritz W. Scharpf has characterised as a decoupling of economic integration from the various welfare traditions of the Member States. European constitutionalism, it is submitted, is bound to respond to this problématique. The second part develops a perspective within which such a response can be found. That perspective is a supranational European conflict of laws which seeks to realise what the draft Constitutional Treaty had called the motto of the union: unitas in pluralitate. Within that framework, the third part analyses two seemingly contradictory trends, namely, first, albeit very briefly, the turn to soft modes of governance in the realm of social policy and then, in much greater detail, the ECJ's hard interpretations of the supremacy of European freedoms and its strict interpretation of pertinent secondary legislation. The conflict-of-laws approach would suggest a greater respect for national autonomy, in particular, in view of the limited EU competences in the field of labour law.

Abstract:
The proper "functioning" of modern markets is dependent upon the availability of sophisticated responses to the risks inherent in the production and distribution of products. This is not only true within the boundaries of nation states but equally within the European Union and at the international level. There institutional frameworks have been established within which the interest in free trade and concerns for health, safety and the environment can be balanced. The article presents three cases
which llustrate in an exemplary way the failures of purely national responses, the need to establish transnational institutions and the legitimacy problems of transnational governance structures. The merits of the responses to this problems at the three levels of governance seem uneven. Whereas the reorganization of regulatory powers was quite successful both in terms of output and input legitimacy in the EU, at the WTO level the efficacy of the new regime remains limited and its political legitimacy dubious.