Jean Monnet Center at NYU School of Law


1. Introduction

The Commission's White Paper on Governance in the European Union warns us at the outset that it does not and cannot be expected to "provide a magic cure for everything" 1 - `everything' presumably referring to all the problems of legitimacy which attend the European Union today. A platitude perhaps, and a somewhat defensive one at that, but a useful starting point for discussion, nonetheless. For, in addressing the various criticisms of the White Paper that have been made2 or that, in due course, may be made, it is important to ask the prior question: what alternative or additional line of argument or proposal might we reasonably have expected the Commission to come up with on this or that point? Our sense of what is reasonable here is, at least, threefold. First, reasonable, given the organisational culture and institutional interests of the Commission;3 secondly, reasonable, given the limited role and competence of the White Paper exercise in a broader process of reform; thirdly, reasonable, given the depth and complexity of the problems of legitimacy facing the unprecedented, multi-level, multi-functional European post-state polity and the resistance of these problems to definitive institutional solution.

The point of this initial orientation is certainly not to grant the Commission immunity from criticism. Even permitting our charitably expansive definition of the constraints on the reasonable scope of the Commission's strategic and normative perspective, there are plenty of faults to pick with the White Paper's conclusions, some of which are discussed below. Moreover, perhaps the sense depicted above of the constraints upon what might reasonably be expected is not just charitably expansive, but unduly and indulgently so. After all, why should the Commission be excused if, and to the extent that, they have acted as cultural dupes or rational-interest maximisers? The answer, of course, is that they should not be allowed any general exculpation on these grounds. Yet, something might still be said in mitigation of the initial proposition. Our sense of reasonable expectation may be more concerned with behavioural prediction than value judgement - with what was likely to happen in all the relevant circumstances, rather than what ought to have happened in an ideal or better world. But if this casts doubt on the sobriety of our expectations of anything better, it still offers no real consolation for the shortcomings of the actual result. Thankfully, however, this is not all that can be said on the matter. For our second sense of reasonable limitations points precisely to the fact that we cannot sensibly regard the White Paper process and result in isolation. As it matured, the White Paper exercise became clearly and explicitly linked with a broader constitutional process organised around the axis of the post-Nice agenda. So, the White Paper need not, and should not, be evaluated as a definitive or even a lasting contribution to the contemporary debate on institutional reform, but merely as an episode within, and contribution to, an extended constitutional narrative. It is in these rather different and ex hypothesi more hopeful terms that the present contribution seeks to assess the contribution of the White Paper.

In introducing this wider constitutional context, however, we should also remain alert to our third sense of reasonable expectations. Even the broadest constitutional framework cannot hope to provide `a magic cure for everything'. The legitimacy of a political order is always significantly underdetermined by its constitutional framework, no matter how successful the constitutional framework is in elaborating this or that regulatory ideal.4 Moreover, as we shall see, some of the broader factors at work which account for the legitimacy deficit of the polity make it difficult to generate a constitutional framework which is optimal - that is to say, comes closest to a broadly-agreed regulatory ideal - in treating the problems of legitimacy. This sense of proportion should inform our reading of the White Paper just as much as the sense of wider possibilities derived from placing the said document in the context of a wider process of reform.

In addressing the wider constitutional context and implications of the White Paper exercise, the argument proceeds in the following way, moving from the abstract to the concrete. First, there is a brief consideration of the idea of legitimacy as it applies to the European Union, since only if we try to imagine what the `magic cure for everything' might amount to, can we begin to assess and evaluate the possibilities of the actual cures which are on offer. Secondly, the idea of constitutionalism is introduced and dissected with reference to its relationship to various features of legitimacy. Thirdly, the White Paper is situated in the context of the constitutional debate and in the framework of opportunities and constraints supplied by that wider context. Finally, some of the main themes contained in the White Paper are briefly assessed in the context of that wider framework of possibilities.

1 European Governance: A White Paper, Commission of the European Communities, Brussels 25.7.2001, Com(2001) 428, p.9. The White Paper is referred to hereinafter as `WP.'

2 See, for example, F. W. Scharpf, "European Governance: Common Concerns vs. The Challenge of Diversity," in the Present Symposium.

3 See, for example, H. Wallace, "The Institutional Setting," in H. Wallace and W. Wallace (eds) Policy-Making in the European Union, (4th ed., Oxford:OUP, 2000)

4 See N. Walker, "European Constitutionalism and European Integration," [1996] Public Law p.266, at 271-75.




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