Abstract
This book seeks to find an explanation and a normative frame for the relationship between the Commission and the persons subject to its rule-making. This relationship is not entirely uncharted territory. Instead, there are a number of theoretical vantage points which offer views on it. I will enter the discussion of the relationship between the Commission and its subjects from these well established theories relating to non-legislative rule-making as ‘administrative’ action, to Commission rule-making being defined by the rule of law and to this rule-making as a democratic exercise of authority. This chapter discusses the delegated and implementing rule-making from these three perspectives and draws insight into how the relationship between the Commission and the persons subject to its rule-making should be framed.
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Notes
- 1.
Consolidated Version of the Treaty on European Union [2010] OJ C83/13 (TEU).
- 2.
- 3.
Mendes (2016a).
- 4.
Hofmann et al. (2011).
- 5.
An example for explicitly deriving the understanding of administrations from national law is Schwarze (2006).
- 6.
- 7.
Cf the entry for ‘administer’ in The New Oxford Dictionary of English (Oxford University Press 1998). A similar, very general understanding is that of administration as “philosophy in action”. Hodgkinson (1978), p. 3.
- 8.
Held (1996), p. 157.
- 9.
See the ‘Herrschaftssoziologie’ developed by Weber, specifically his thoughts on ‘bu¨rokratische Herrschaft’: Weber (1964) ch. IX (2).
- 10.
Mayntz (1978), p. 5. Weber is still widely cited today where-ever research on administration or bureaucracy is conducted, and his account of administrations remains orthodoxy to this day. Bugarič (2007), p. 484. Thus, for example, Anchrit Wille’s account of a ‘normal’ administration is a Weberian administration. Wille (2013).
- 11.
Any author writing in English about Weber will be faced with a dilemma in translation: Weber uses the term ‘Herrschaft’ which is not congruent with any term in the English language (although possibly closest to ‘rule’ as in ‘the rule of Victoria I’ or ‘British colonial rule’). While it is mostly translated as ‘authority’ in English, this translation is somewhat misleading. ‘Herrschaft’ is much more archaic (and can be coercive), and ‘authority’ appears tame in comparison.
- 12.
For a short discussion see also Robertson (1982), p. 19 et seq.
- 13.
While Weber discusses a number of forms of administrations, according to him the form that an administration takes in a modern state is that of a bureaucracy (Weber 1964, p. 697). Indeed, the bureaucratic form is so accepted that today one might even use the terms ‘administration’ and ‘bureaucracy’ interchangeably. See, for example Peuker (2011).
- 14.
Weber (1964), p. 703 et seq.
- 15.
Art. 5 TEU.
- 16.
- 17.
Delegated and Implementing Acts can consequently be described as a case of ‘double delegation’. Cf Vincze (2018).
- 18.
Although it should be pointed out that the opposition of ‘rational’ with ‘political’ appears not entirely accurate given that ‘politics’ have their own logic and rationality. For a discussion of different rationalities see Snellen (2002), p. 326.
- 19.
Such as arguably brought forward by the Court in Case C-355/10 European Parliament v Council of the European Union (Schengen Border Code) (2012) electronic reports of cases: Court reports – general (ECLI:EU:C:2012:516). Cf also den Heijer and Tauschinsky (2013), p. 513. For a critical discussion of the idea that administrations are rational and non-political see Fisher (2007).
- 20.
Olsen (2003), p. 510.
- 21.
For a description see i.e. Hood (1991), p. 3.
- 22.
- 23.
Habermas (1996) pp. 169, 186 et seq.
- 24.
- 25.
Habermas (1996), p. 190.
- 26.
ibid. p. 191.
- 27.
ibid. p. 192.
- 28.
See, for example the description of existing participation possibilities and the critique of them being too closed and instrumentalised in Mendes (2011), chaps. 6–8.
- 29.
The 2016 IIA Interinstitutional Agreement of Better Law-Making [2016] Council Document, 15506/15 envisages a greater role for consultations and impact assessment, and thus for participative mechanisms, also for delegated and implementing acts. However, such tools can necessarily only apply to a small number of delegated and implementing acts, given the frequency of Commission acts and the effort and resources necessary to conduct consultations and impact assessments.
- 30.
See, for example, Gaus (1931), p. 120.
- 31.
Gaus (1947), p. 23.
- 32.
Even though this aspect is where the focus of the Commission lies. See European Commission, ‘European Governance - A White Paper’ (Communication) COM(2001)428 final and European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Better regulation for better results – An EU agenda’ (Communication) COM(2015) 215 final.
- 33.
See, for example, Commission Implementing Regulation (EU) 2018/746 of 18 May 2018 amending Implementing Regulation (EU) No 809/2014 as regards modification of single applications and payment claims and checks [2018] OJ L125/1; Commission Delegated Regulation (EU) 2018/1063 of 16 May 2018 amending and correcting Delegated Regulation (EU) 2015/2446 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code [2018] OJ L192/1.
- 34.
Shapiro (2001), p. 94.
- 35.
Art 2 TEU.
- 36.
- 37.
Arthurs (1979), p. 5. Even though Arthurs uses Dicey’s definition of the rule of law in his argument, he also states that this is simply because it allows for the problem to become most clear, and not because other conceptualisation would not be subject to the same problems.
- 38.
- 39.
Palombella (2016), p. 37.
- 40.
Tamanaha (2004).
- 41.
Ibid. p. 3, Waldron (2002), p. 137.
- 42.
This notion is explained in Dicey (1956), p. 60, but is prevalent throughout the book.
- 43.
For a contribution differentiation between ‘normal’ case law and offensive judicial activism see Heydon (2003), p. 9.
- 44.
Leisner (1977).
- 45.
Hayek (1973), pp. 72–73 and 124–144.
- 46.
Thus, one commentator even describes the ‘rule of law’ and the ‘Rechtsstaat’ as contradicting concepts. See Peerenboom (2004), p. 2.
- 47.
Sordi (2010), p. 33.
- 48.
Rohr (2002), p. 14 et seq.
- 49.
Somek (2004), p. 53 et seq.
- 50.
Fallon (1997), p. 1.
- 51.
Bedner (2010), p. 48.
- 52.
- 53.
Separation of powers terminology sits uncomfortably with the institutional set up of the EU. Lenaerts and Verhoeven (2002) However, in want of another term, these denominations will be used here.
- 54.
Leisner (1977), p. 539.
- 55.
ibid. p. 537.
- 56.
Schmidt-Aßmann (n 52) p. 542. To the question whether this normative content stems from the inherent normative core of the principle, or from the specific normative context in which it is used (such as the German constitution in the case of the commentator, or the EU Treaties in the present case), Schmidt-Aßmann answers that even though human rights will provide much of the normative force, it is the rule of law which will give these norms structural effect.
- 57.
Tamanaha (2004), p. 23 et seq.
- 58.
Less historic German doctrine would express this as that it is a part of the concept of ‘law’ that it is intended to secure order and peace as well as rationality and reliability. Cf Badura (1968), p. 448.
- 59.
Tamanaha (2004), p. 24.
- 60.
German jurisprudence is much more reticent here (see, for example, Schmidt-Aßmann (n 52) p. 546 than, in principle, UK jurisprudence.
- 61.
Palombella (2016), p. 43.
- 62.
- 63.
Bedner (2010), p. 59.
- 64.
von Bogdandy (2000), p. 150.
- 65.
- 66.
The focus on the ‘technical’ nature of delegated and implementing acts is very much alive in the jurisprudence of the CJEU. Cf Case C-270/12 United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union (2013) electronic reports of cases: Court reports – general (ECLI:EU:C:2014:18).
- 67.
- 68.
Whether and in how far participative mechanism can function as substitutes for representation, or as independent means of instituting democracy depends on the mechanism and situation in question, and on factors such as how is the ‘people’ able to exert influence, how free they are in their expression and what role this influence plays in the adoption process.
- 69.
- 70.
This is more true for popular media than for academic reports: see: https://www.express.co.uk/news/uk/818260/Juncker-bashed-Brexit-revealed-EU-Commission-democratic-deficiency-Shanker-Singham or more critically: https://www.economist.com/the-economist-explains/2017/07/14/does-it-make-sense-to-refer-to-eu-officials-as-unelected-bureaucrats. However, this ‘undemo-craticness’ is also a political trope: https://www.channelnewsasia.com/news/world/orban-rails-against-undemocratic-western-europe-10571470, and has been mentioned in some more official reports: Schmidt (2015), pp. 40–48.
- 71.
Brandsma and Blom-Hansen (2017).
- 72.
Gianluca Sgueo, ‘External Expertise in EU Policy-Making: The Quest for Transparency’ (SSRN Working Paper, 2017); Lafarge (2018).
- 73.
Alemanno and Meeuwse (2013), p. 76.
- 74.
Even though this appears to be the predominant assumption: “[t]he world owes to the Federalist Papers the idea that the principle of democracy finds its most important expression in representative institutions”; von Bogdandy (2012), pp. 315, 326. Cunningham assigns the equation of democracy with representative electoral mechanisms to Schumpeter: Cunningham (2002), p. 9.
- 75.
Thus, for example, Holmes (1995).
- 76.
Canovan (2002), p. 29.
- 77.
ibid. p. 29 et seq.
- 78.
Kelman and Hamilton (1989), p. 54 et seq.
- 79.
Endicott (2014), p. 49.
- 80.
This is summed up well by Larry Ribstein with a view to fiduciary relationships: “parties in the limited category of relationships involving open-ended delegation of power cannot contract to limit the manager’s power without undermining the beneficiary’s objective in delegating power”. Ribstein (2011), p. 904.
- 81.
- 82.
- 83.
- 84.
Nehl (2009), p. 336 et seq, 339 et seq.
- 85.
Barnes (1988), p. 58.
- 86.
The transformations of Easter European States, which are increasingly being accused of having become ‘undemocratic’ even as they followed the democratic processes initially is a case in point.
- 87.
Braithwaite (1998), p. 344.
- 88.
For a focus on the power or ‘space of freedom’ aspect of discretion, cf., for example, Calvert et al. (1989), p. 588; Forstyh (1999), p. 5; Franchino (2000), p. 155. Cf also Cartwright J. who famously (though dissenting) claimed that administrative organs, acting within the province of their powers are a law unto themselves. Roncarelli v Duplessis [1959] SCR 121, p. 167, 168.
- 89.
Mendes (2016b), p. 419.
- 90.
For an explanation of these see Pesch (2005).
- 91.
Tomuschat (1999), p. 95, see also 161 et seq. Tomuschat here refers to states, but his statement can be taken to use states as the paradigmatic case for organisations of public authority.
- 92.
Waldron (2012), p. 200.
- 93.
- 94.
- 95.
But cf. how Raz connects trust to ‘paternalistic’ aspects of government: Raz (2001), p. 122 et seq. I disagree with Raz’ definition of the problem as being one of coercion, as I find his juxtaposition of liberty and coercion too binary a model. Also, I find his definition of ‘paternalism’ to include any action which has the good of the one acted upon in mind as over-inclusive. For similar points of criticism see Wolfe (2001).
- 96.
See the discussion in Canovan (2002), p. 30 et seq.
- 97.
von Bogdandy (2017), p. 503.
- 98.
Confucius TAmes and Rosemont (1998). The most cited passage here is in book 12, section 7, however, the concept of trust or trustworthiness is mentioned frequently throughout the analects. For the modern impact see Koehn (2001), p. 415. For an elaboration on the Chinese term that Confucius uses and its translation into the western concept of trust see: Wee (2011), p. 516.
- 99.
Charles de Secondat (Baron de Montesquieu), The Spirit of Laws (Thomas Nugenttr, first published 1752, Batoche Books 2001), cf. also Natelson (2004), p. 1132.
- 100.
John Locke, Second Treatise of Government (first published 1690, Project Gutenberg, 2010) specifically Section 139 et seq.
- 101.
- 102.
Weil (1987), p. 759.
- 103.
For example, TNS opinion & social, Standard Eurobarometer 83: Public Opinion in the European Union (First Results) (2015) (http://ec.europa.eu/public_opinion/archives/eb/eb83/eb83_first_en.pdf) p. 6 et seq. For an analysis of such polls see Dalton (2005), p. 133.
- 104.
The model of authority based on trust is linked to, but differs from arguments about the morality of law, as it is about deference to trust actors, not about deference to the institution of ‘law’: Tyler (1998), p. 277 For an account of the morality of law, the strong relational aspects of which connect rather well to the relational approach presented here, see Fuller (1973).
- 105.
For this definition of authority, see Kelman and Hamilton (1989), p. 53.
- 106.
For a definition of trust as the belief in goodwill, see the seminal work: Baier (1986), p. 234. The term ‘goodwill’ hereby should not be over-interpreted: it can refer merely to the willingness of a person to not exploit the vulnerabilities of another, such as formulated in the definition of trust in Blair and Stout (2001), p. 1740. For a more recent, elaborate description of trust (partly criticising Baier), see Lagerspetz and Hertzberg (2013).
- 107.
For an elaboration on this argument with further references for empirical evidence see Tyler (1998), p. 272 et seq.
- 108.
This belief should be differentiated from the belief that matters would be worse without government: Dunn (1988), p. 287. The kinds of behaviours necessary to assert these two differ markedly. Generally, being trusted increases the degrees of freedom of the trusted, opening up new possibilities for action and being forgiven more easily for minor mistakes: Offe (1999), p. 51.
- 109.
This is of course a rather short and compacted account of the way that trust and authority connect. The concept of trust alone has long been a puzzle to many thinkers, as, for example, Hawthorn’s insistence that the conditions for trust are impossible to meet, shows: Hawthorn (1988). ‘Authority’ is no less debated a concept.
- 110.
Farina C and ABA Committee on Government Standards (1993), p. 292.
- 111.
Cf in the same line, though with different terms, Raz’ condition of government respecting its citizens and providing ‘full citizenship’ in order for the people to reasonably trust them. Without the reasonable expectancy of this trust, government cannot be justified to use coercive means for the good of the people. Raz (2001).
- 112.
Cf also O’Neill (2002).
- 113.
Because of this, Luhmann treats trust as a leap of faith: Luhmann (1968), pp. 23, 31.
- 114.
Warren (1999), p. 331. Some commentators describe trust as the outcome of the cost-benefit analysis of the risk of becoming vulnerable (for example Hardin 1998 or Coleman 1990, p. 91 et seq). While I find this description questionable, I also submit that the precise reasons for trust are not very relevant for the further treatment of the subject here. For a discussion of the rational choice and more behavioural conceptualisations of trust see already Held (1968), p. 156.
- 115.
Patterson (1999), p. 153.
- 116.
For a comparison and an elaboration of the relation of the kind of trust or trust-worthiness regarding trust in an institution with trust as the more interpersonal, psycho-sociological attitude of trust see: Braithwaite (1998), p. 344 et seq.
- 117.
- 118.
Braithwaite (1998), p. 353 et seq.
- 119.
In as much as it is possible to speak of a ‘decision’ here. For a discussion of the intentional aspects of trust see Mansbridge (1999), p. 294 et seq.
- 120.
Interestingly, most writers on trust treat trustworthiness as something to be determined by a person when considering whether or not to trust without switching the perspective to what this means for those who rely on being trusted (with the no- table exception of Mitchell (2001), p. 591). However, the point that trustworthiness is a matter of judgement is strongly made: Tyler (1998), p. 280 et seq. For further reasoning on trustworthiness and trust see: Harré (1999) p. 258, O’Neill (2002).
- 121.
- 122.
Of course it depends what this authority is founded on: Indirect trust can be established by someone trusted, but not by someone whose authority is based on control by its subjects or to whose power they submit to for instrumental reasons (according to a principal- agent model of delegated authority).
- 123.
For a more general argument of such a restriction virtually never being the case and there thus always being a direct dependency of the persons subject to a decision on the decisions by government bodies, see Pettit (1998), p. 300 et seq.
- 124.
Specifically which these are is the subject of the following chapter.
- 125.
Braithwaite (1998).
- 126.
Shapiro (1987), p. 626.
- 127.
Indeed, behaviour can be based on impersonal trust in spite of a situation of individual attitudes of suspicion, such as when President Bill Clinton was voted into office in 1997 despite the majority of voters reporting that they distrusted him personally. Cf Patterson (1999), p. 200 et seq. For a slightly different definition of ‘personal’ vs ‘impersonal’ trust, namely as motivated in their goodwill in relational or independent terms, see Pettit (1998). In Pettit’s term, political trust has necessarily a personal component, even if it is institutionalised. Ibid. p. 299 et seq.
- 128.
- 129.
- 130.
von Bogdandy (2017), p. 501.
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Tauschinsky, R.E. (2020). Commission Discretion. In: A Fiduciary Approach to Delegated and Implementing Rule-Making in the EU. Springer, Cham. https://doi.org/10.1007/978-3-030-26300-3_2
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