European Multi-level System Research Articles

Ein regulatorischer Sicherheitsstaat? Herrschaftsgrundlagen und Instrumente europäischer Sicherheitspolitik

European security policy is still widely regarded as the realm of national and “positive” states. In contrast to this conventional view, this article argues that the European Union – and the broader European multi-level system – can be conceived as a “regulatory” state in many areas of European security policy-making. The European regulatory security state (ERSS) relies on epistemic authority (i. e. experts) to indirectly produce European security policies by means of setting and enforcing rules. The article introduces the concept of a “European regulatory security state” and illustrates how the ERSS manifests itself empirically; it discusses the extent to which Russia’s war against Ukraine and the European responses to it pose a challenge to the ERSS; and it assesses how normatively desirable – and sustainable – the ERSS is.

Blurred lines between electoral and parliamentary representation: The use of constituency staff among Members of the European Parliament

Parliamentarians receive public funding to employ local staff in the constituency. Local staff help members of parliament to execute their representative duties, but can also become an electoral asset. Drawing on theories of personal vote-seeking we study local staff as an example of constituency service. Modelling within-individual changes in local staff size among 1174 Members of the European Parliament (MEPs), we find that the number of local staff increases before both European and national elections, and more so in candidate-centred than party-centred systems. Despite a single European Parliament (EP) staff system, EU citizens are represented differently depending on where they elect their members and the electoral system that applies. Attempts to mend the EU’s democratic deficit by strengthening MEPs’ contacts with citizens through local staff potentially means that European public money is used to fund EP incumbents’ electoral campaigns. We discuss the implications of our findings for the democratic functioning of the European multi-level system.

Trans‐local action and local climate policy. Configurations of success for climate innovations in the European multilevel system

AbstractLocal climate policy in Germany is embedded in a complex and dense multilevel system. While higher levels of governance confront cities with legal frameworks and regulations, they are not constrained to mere implementation of requirements from the national or supranational levels. Cities can influence and make strategic use of opportunities stemming from the multilevel structure to introduce innovative climate policy measures as best practices. Within a multilevel structure, they can engage in trans‐local action and become actors in various processes of upscaling. In this paper, we analyze the configurations of success for local climate innovations. We focus on the impact of cities' trans‐local and strategic activities within the European multilevel system in conjunction with city‐specific context conditions. The research is based on a concept‐structural framework that combines trans‐local activities and internal context conditions in a way that accounts for interactions between the two spheres. A comparison of the German cities of Darmstadt, Hagen, Offenbach, and Oldenburg indicates that configurations of strategic action in the multilevel system and beneficial local conditions explain the adoption of climate innovations. Therefore, such trans‐local action should not be understood as a sufficient condition of innovative climate policy measures, but as an enabling factor embedded in local contexts.

On their own turf? The level-specificity of political trust in multilevel political systems

Although the debate on roots of political trust is ongoing, many scholars agree on the relevance of such political factors as political/ideological distance between citizens and incumbents, political responsiveness and perceptions of performance. Less clear is to what extent such trust evaluations are generalized or specific for the three main political arenas in the European multilevel governance system (EU, national, local). With new data from the Netherlands, we demonstrate that trust in local, national and EU governments (1) is largely level-specific (i.e. is based on citizens’ perceptions of incumbents at a particular governance level) (2) and—at all three levels—is explained by level-specific political factors. This shows that political trust is a subjectively rational evaluation and that citizens develop meaningful political orientations vis-à-vis governments at different levels. Therefore, trust spillovers may be less relevant for explaining political trust in multilevel governance than assumed in previous research as executive governments at local, national and EU levels are judged “on their own turf”.

The Federal Constitutional Court Decisions: „The Right to be Forgotten I” and „The Right to be Forgotten II” – The Expectation of Increased Cooperation with the Concurrent Need to Maintain Independence

The article discusses the decisions “Right to be forgotten I” and “Right to be forgotten II” of 6 November 2019 by the Federal Constitutional Court, which redefine the relationship of cooperation between the Federal Constitutional Court and the European Court of Justice in the area of fundamental rights. The Court has decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. In the first part, the article presents the previous system, including the precedence of application of EU law and its exceptions (ultra-vires review; identity review), as well as the controversial question of the interpretation of Article 51 (1) of the Charter of Fundamental Rights, which is decisive for the applicability of the fundamental rights under the Charter. The focus is on the constitutional background of the German Basic Law for the protection of fundamental rights in the European multi-level system. Against this background, the second part of the article presents the facts and reasons for the decisions “Right to be forgotten I” and “Right to be forgotten II”. This is followed by an analysis of the consequences of these decisions for the protection of fundamental rights and cooperation between the European Court of Justice and the Federal Constitutional Court. In particular, the way in which fundamental EU rights can now be enforced before the Federal Constitutional Court is described in greater detail. The concluding part provides an overview of the open questions, risks and opportunities of this approach. Here the article illustrates the significant impact of the two decisions on dogmatic and procedural matters.

Margin of Appreciation in Pursuit of Pluralism? Critical Remarks on the Judgments of the European Court of Human Rights on the ‘Burqa Bans’

Abstract In 2014 and 2017, the European Court of Human Rights, respectively, upheld France’s and Belgium’s general bans on wearing face-covering veils in public. Whereas both the acceptance of ensuring the minimum conditions for ‘living together’ as a legitimate aim and the recognition of a wide margin of appreciation appear to demonstrate a pluralistic approach taken by the Court, this article examines the Court’s understanding and application of the principle of pluralism in its reasoning and, in this way, explores why and how the Court’s pluralistic view has led to an anti-pluralistic outcome. It purports to show that it was precisely a majoritarian conception of pluralism that has led the Court to make decisions to the disadvantage of minorities. Moreover, it illustrates how the European multilevel system of human rights protection should be developed in support of the realisation of pluralism.

ADVISORY OPINION AND PRELIMINARY RULING PROCEDURE – A COMPARATIVE AND CONTEXTUAL NOTE

The apropos of this article is Additional Protocol No. 16 complementing to the European Convention on Protection of Human Rights and Fundamental Freedoms that recently came into force. This paper presents the main common and differing elements of two non-contentious procedures before supranational courts. The advisory opinion procedure of European Court of Human Rights (ECtHR) and the preliminary ruling procedure marked by unprecedented success before the Court of Justice of the European Union, -as at least prima facie- similar types of proceedings. The paper also analyses cross-cutting issues arising from the application of both procedures in the same case arising before designated national court or tribunal. Although the purpose of the advisory opinion is to achieve and maintain efficiency bearing in mind that the ECtHR is victim of its own success the paper outlines some of serious doubts and assumptions whether in current format and in foreseeable future this purpose will be achieved. Furthermore, the paper also takes a closer look at the procedural aspects of the first advisory opinion delivered by ECtHR given its importance as we can draw at least some conclusions on the functioning of this type of procedure. Lastly, the paper -in comparative spirit- also refers to the relationship of the ECHR and the European Union Law as the two main trustees within the European multilevel system of rights protection.

The CJEU, EU Fundamental Rights and the Limitations of Copyright

It is now almost 20 years since the Charter of Fundamental Rights of the European Union was signed (hereinafter the ‘Charter’). Its importance as a further primary text has meanwhile regularly come into the focus of the CJEU. In the three recent cases Funke Medien NRW, Spiegel Online and Pelham, the CJEU had the opportunity to clarify the importance of the Charter’s fundamental rights regarding the limitations and exceptions to the exclusive rights of copyright. While clarifying certain issues, the CJEU, however, also raised some intricate issues with potentially far-reaching consequences. The three questions raised by the German Federal Supreme Court in this regard were: (1) do the provisions of EU law on copyright exceptions or limitations allow any discretion in terms of implementation in national law; (2) in what manner are the fundamental rights of the Charter to be taken into account when determining the scope of the exceptions or limitations provided for in the InfoSoc Directive; and (3) can the fundamental rights justify exceptions or limitations to the exclusive rights, beyond the exceptions or limitations provided for in Art. 5(3) of the InfoSoc Directive? The CJEU answered the first question with a general ‘yes’, and the third one with a clear ‘no’ and explained how fundamental rights should be taken into account regarding the second question. At the same time, this raises the question of the scope left to the Member States to apply their own fundamental constitutional rights. In short, the question is about locating and adjusting the protection of fundamental rights in the European multi-level system.

Die Wandlung des Grundrechtsschutzes durch das Bundesverfassungsgericht – Recht auf Vergessen I und II als „Solange III“?

The relationship between the fundamental rights as laid down in the German Constitution and the fundamental rights contained in the Charter of Fundamental Rights of the European Union has been exceedingly conflict-prone ever since the early days of the European Union. Related thereto is the ongoing controversy on the judicial prerogative of the German Federal Constitutional Court (BVerfG) within that system. Thus, two big players in the European multi level system, i.e. the BVerfG and the European Court of Justice (ECJ), clash with their judicial powers and diverging interests. With its two recent decisions, 1 BvR 16/13 and 1 BvR 276/17 of November 6, 2019, the First Senate of the BVerfG introduced a far-reaching change in its approach of protecting basic rights by clarifying the relationship between the EU fundamental rights and the fundamental rights of the German Constitution. At the same time, the BVerfG has made a strong effort to maintain its position within the multilevel cooperation of the constitutional courts of EU member states, particularly in relation to the ECJ, which by both sides is referred to as a "cooperative relationship". This article explains the repercussions of the aforementioned judgments on the protection of fundamental rights in the European multi-level system.

Regional parliaments in the EU multilevel parliamentary system

ABSTRACTEuropean integration has created a multilevel political system that is dominated by executive actors. Despite the increasing competences of the European Parliament, a growing EU-awareness of national assemblies and an emerging attention of regional parliaments for EU affairs, the EU polity still lacks a sound parliamentary representation. As the EU presents itself as a representative democracy, the current set-up raises questions from the perspective of democratic legitimacy. The establishment of multilevel parliamentarianism may be part of the remedy. This introduction focuses on the position that regional parliaments take in such a European multilevel parliamentary system. The authors address three relevant questions: what roles do regional parliaments take up in terms of legislation, scrutiny and networking? To what extent are they empowered by the Lisbon Treaty? And what explains the variation in their activities? The authors develop hypotheses that are, to varying degree, addressed by the contributions in this special issue.

Executive-legislative relations and inter-parliamentary cooperation in federal systems – lessons for the European Union

ABSTRACTThis paper examines the claim that the fusion between executive and parliamentary majority (that marks parliamentary regimes and thus most EU member states) makes the development of a proactive collective role of national parliaments as a political force in the European multilevel system unlikely – irrespective of growing attempts to formally empower national parliaments. Conditions for inter-parliamentary activism – defined as joint parliamentary activities that aim at enhancing parliaments’ political influence or interests in a multilevel polity – are critically examined by a comparative study of the nature of inter-parliamentary activities in three federal systems whose constituent units are characterized by most different executive-legislative relations. In line with theoretical expectations, inter-parliamentary activism is strongest in the US (separation of powers) and non-existent in Canada (parliamentarism), with Switzerland located in between (separation of powers bridged by party ties). With the EU being most similar to Canada when it comes to executive-legislative relations on the ‘lower’ member-state level, the findings support those skeptical towards national parliaments’ potential to jointly become a politically active player in the EU.

The paradoxes of legitimate EU leadership. An analysis of the multi-level leadership of Angela Merkel and Alexis Tsipras during the euro crisis

In times of crisis, political leaders are torn between calls for strong leadership and the need to maintain their license to operate amongst their constituents. The predicament of European Heads of State and Government (HSG) during crises provides a particularly strong example of this. For on top of the inherent tension between political leadership and democracy, in the European multi-level system, HSG have to balance the demands of many groups of potential followers while facing weak and contradictory vectors of legitimate leadership. This contribution presents a framework by which the inherent tensions of legitimate European leadership may systematically be assessed. It applies this framework to two HSG that were key to the management of the euro crisis, the German chancellor Angela Merkel and the Greek Prime Minister Tsipras in their attempts to walk the tightrope between legitimate and decisive EU leadership.

University Autonomy in the European Multi-Level Governance System – More or Less?

Although the need to increase autonomy of higher education institutions is generally recognised, there is a growing tendency for governments to interfere with university autonomy and academic freedom in certain European states in the last decade. The article is about these changing trends from a comparative, cross-country perspective focusing on certain striking examples. Our analysis shows that it is possible to find some 'common denominators' but there is no uniform trend towards university autonomy in Europe. Though higher education is a key matter for Europe, national interests and competences remain decisive in this area and the role EU governance instruments in safeguarding university autonomy still remain questionable.

The referral mechanism and the role of ordinary judges: Cappelletti and beyond

This short article outlines Mauro Cappelletti’s thinking about constitutional justice and the judicial protection of fundamental rights and liberties in the European context, discussing the article by Marta Cartabia in this symposium, “Mauro Cappelletti: one of the ‘precious few’ of our generation.” In particular, the article describes the incidental method of judicial review and how Cappelletti frames in the context of the protection of fundamental freedoms. The article touches briefly on two points, in order to understand their development after Cappelletti. First, it analyzes the incidental method of judicial review in Cappelletti’s classic criteria of classification. Second, it takes into account the role of ordinary judges, and how it has been influenced by the referral mechanism, whereby, in the course of a judicial proceeding, the judge has the power, and to some extent the duty, to raise issues of constitutionality before the Constitutional Court. Lastly, in light of the various kinds of preliminary rulings, the article discusses the place of constitutional courts in the European multilevel system of protection of fundamental rights and liberties.

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The European Union (EU) faces a deep crisis. Under the impression of economic troubles, wars in and around Europe (Ukraine, Syria) and an unprecedented immigration of refugees, political leaders try to muddle through the difficult times, while political extremists and anti-European forces suggest alleged solutions and divide the Union. In view of the crisis, citizenship education is often neglected, although it is a crucial measure for long-term stability, European integration and wealth. The education of young generations needs to be considered as a core challenge for the EU. It should provide political knowledge of history, institutions, actors and procedures of democracy in the nation states and the EU, democratic values and behaviour, skills to participate in a communicational public sphere. It should enable citizens to understand how democratic politics functions, what the core values of democracy are, how interests can be articulated and promoted in a European multi-level system and how political claims or projects can gain broader attention. How to reference this article Pausch, M. (2016). Citizenship Education in Times of Crisis . Foro de Educacion , 14(20), 3-9. doi: http://dx.doi.org/10.14516/fde.2016.014.020.001

Regulierung und Innovation im Mehrebenensystem. Was kann und muss europäisches Energie- und Klimaschutzrecht leisten und welche Handlungsfreiheiten brauchen die Mitgliedstaaten?

<bold>Regulation and Innovation in the European Multi-Level System</bold> <italic>What can and must European Energy and Climate Change Law Guarantee and what Scope for Action do the Member States need?</italic> The Energy Transition is a challenge for the transformation of the legal foundations of the power supply. This raises the question about responsibility for technical and societal innovations. The energy efficiency law, the emissions trading and the promotion of renewable energies show that not all the responsibility has been shifted to the supranational level and that Member States retain considerable room for action. I will outline how the responsibility for innovation between the European Union and the Member States is distributed and what the value of model competition for energy and climate change law is. Neither the fundamental freedoms nor state aid law are able to restrict unduly the Member States in their scope of action.

Balancing integration and flexibility in the European Union: Constitutional dispositions and dynamics of coordination

The European Union (EU) is a multilevel system with expanding boundaries. The composition of its constituent governments changes over time and with it the institutional architecture structuring their interactions. Despite the system’s increasing complexity through enlargement, the EU is still dominated by multilateral institutions directed towards maintaining the equality of constituent units both in day-to-day decision-making as in matters of competence allocation. It has made increasing usage of more flexible mechanisms (for example, opt-out, mutual recognition and the open method of coordination (OMC)). Nonetheless, we do not find a uniform movement from ‘hard’ EU-wide regulation to ‘soft’ modes of coordination or from multilevel interaction involving all member states to diversified arrangements which reflects the equality of the member states as the constituent units in this confederal system. Party–political incongruence, in contrast, does not play a crucial role. Although member states are governed by different parties, this does not translate into patterns of conflict, as parties are disconnected and do not compete directly across the various arenas of the European multilevel system.

The Roma Issue in the European Multilevel System: Ideas, Interests and Institutions behind the Failure of Inclusion Policies

The Roma Issue in the European Multilevel System: Ideas, Interests and Institutions behind the Failure of Inclusion Policies

The Regulatory State: How Democratic?

The principle of subsidiarity was formally introduced as a principle of intention in the 1991 Treaty of Maastricht that recognized the devolution of competence, i.e., ‘decision-making to be performed at the lowest possible effective administrative level’ in the European multi-level system of governance. The rhetoric deployed on behalf of the principle of subsidiarity elaborated it and strongly suggested that it was, as it were, a principle of ‘nearness’ to the people, implying a more bottom-up form of governance and a more democratic mean of voicing opinions. But in what kind of framework should ‘nearness’ take place? Should it take place within the framework of the devolution of competence to elected national assemblies and the emancipation of constituencies? Or should it be applied within the framework of the regulatory stat that makes use of national and international arm’s-length agencies and other governmental bodies in its governance approach? The paper gives answers to these questions, and examines how different approaches to the concept of democracy transform governance structures.

European Governance: On the Relationship Between Democratic and Non-democratic Deliberation Within the European Multi-level System

AbstractA few scholars regard the European Union and its specific forms of governance as an experimental ground for the development of democratic structures and processes beyond the nation-state. Over the past years, the debate has been strongly affected by representatives of a theory of deliberative democracy who – often following the conceptual reflections of Jürgen Habermas – emphasize the communicative potential of reason inherent to European networks of deliberation and decision-making. The present article addresses the question of whether or rather to what extent the theory of deliberative democracy conceives and interprets the non-democratic character of the forms of European network governance in an appropriate way. The article argues that this is only partly the case. On the one hand, the developed theoretical perspective is instructive to focus on the procedural political-institutional embeddedness of deliberative policy-making; on the other hand, the theory of deliberative democracy is analytically too weak in order to identify the political economic and political sociological causes of the non-democratic quality of European network governance.