Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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14 structural discrimination, for the need of enabling reciprocal learning-processes and for needs of structuring these processes more formally and to render them more transparent 6 . This awareness can be reinforced by keeping in mind a second aspect of the informal nature of the Union’s functioning. The institutional infrastructure of the European Union is composed of the “hard” treaty-institutions, of institutions/sub-institutions established through delegation (committees and agencies, for instance), and of “soft” institutional configurations like issue-related expert groups and lobbying actors as well as of interest groups of different kinds (public- and common-interest groups, actors from social, environmental and civil-rights movements, NGOs etc.) that influence the decision-shaping process through different channels. Embedded in the broader contexts of the constitutionalisation-debates, esp. those relating to the “democratic deficits” of the European Union, efforts of institutional reform towards accountability, transparency and democratic quality lead to a strengthening of information- and access-rights on the one hand, to secondary law-production relating to transparency and openness, and to a set of soft legal instruments like best-practice declarations, codes of conduct, Whitebooks and so on - mostly inspired by the upcoming discourses about “Good Governance” (see XX). And indeed: Since the late 1990s there has been an enormous rise in participation of external actors at different levels of the law-making process and in different institutional settings. The problem still has ever been that these forms of participation are not structured by transparent and formal procedures allowing for active intervention by those who are concerned. Access is highly a question of resources and organisation-power, and of “perception” on the side of the institutional actors who decide upon who is heard. So in practice, we are frequently dealing with an ad-hoc inclusion and a biased representation (see Tömmel XX), but not with equal access, or an equal right to be heard. To our mind in fact, these processes pose serious normative, procedural and practical problems; because in such informal configurations, structural discrimination, i.e., 6 In this respect obviously further empirical studies are needed to get to a balanced evaluation of the institutional practices and esp. of the quality of deliberation-processes. Although we can at present not rely on elaborated empirical insights, we can articulate a kind of scepticism about the (normative) quality of the institutional practices underlying the notion of transparent process of justification (see above). Apart from that, a quick look at actual institutional compositions might well reveal a situation that is “open to asymmetries” and not just resolvable by socialisation. The European Courts, for instance, have – in plain numeric terms – been stocked up in proportional adequacy. At second sight, two figures are quite striking: In relation to the Advocates General at the ECJ (which is in substantial terms a crucial position) as well as in relation to the heads of chambers at the Court of First Instance (which is in hierarchical terms a position that matters) there is an obviously unproportional relation between “old” and “new” judges.
15 hierarchies and asymmetries are – in a way – “invisibilised”. Regarding enlargement, i.e., regarding the integration of a new set of actors manoeuvring in these processes without disposing yet of the institutional experience and knowledge but in the need to canalise and integrate various concerns and interests, it does not seem to be too far fetched to imagine them in a potential asymmetric situation. This potentiality of structural asymmetry is, however – as we have tried to point out –, not genuinely an effect of enlargement but rather a constitutive attribute of European politics in its present shape. Profitable in general normative terms and surely in practical terms for the new member states would be to render these processes more transparent and procedurally more formalised: By these means the need to argue for and to justify inequality, hierarchy and power-asymmetries would rise and processes of justification trying to figure out solutions acceptable to all those concerned could be furnished. 3.4. Concepts of law The qualification of the Union as a “Community of law” (Rechtsgemeinschaft) and the notions of the idea of “integration through law” highlight the status of law as a constitutive principle of the Unions architecture and functioning as well as its practical relevance in guaranteeing the ‘proper’ functioning of the integration-process (see Graig/de Burca 1999). That is to say, the functioning of the European integration project is based on the rule of law on the one hand, on legal and juridical instruments of policy-formation and -implementation, and highly relies on a compound scheme of legal enforcement integrating national judiciaries at all levels of the legal systems. In the course of the European judicial attempts to enforce the uniform application of European law there have always been conflicts about the status of European law and, at the other side of the medal, conflicts about the integrity of the national constitutional systems and about competence-allocations (esp. with regard to, firstly, the role of individual and human rights, and, secondly, of democratic rights and organisational principles). And as we can observe right now, there are quite similar disputes between the ECJ and the highest and constitutional courts of the new member states as have been taking place since the 1970s between the ECJ and the German and Italian constitutional as well as the French higher courts (see Albi 2004, Capeta 2005 and 2006, Kowalik-Banczyk 2005, Kühn 2004 and 2005, Lefevre 2004).
Page 1 and 2: Tobias Auberger and Tanja Hitzel-Ca
Page 3 and 4: 3 common feature: They conceive the
Page 5 and 6: 5 Even in reality, as certain studi
Page 7 and 8: 7 openness and reversibility. Thus,
Page 9 and 10: 9 portant role in the European fore
Page 11 and 12: 11 Apart from the fact that these c
Page 13: 13 Weiss 2005, Dangerfield 2006, Ba
Page 17 and 18: 17 2. By requiring national courts,
Page 19 and 20: 19 tional role and function but als
Page 21 and 22: 21 Biography (incomplete) Albi, Ann
Page 23 and 24: Kühn, Zdenek (2005) The Applicatio

Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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