Idealization, De Politicization and Economic Due Process: System

Transition in the European Union

By Alexander Somek
This paper addresses the topic concerning the role of the law in the context of
system transition. Countries which have recently passed from an authoritarian/totalitarian
regime to democracy are seen as communicating with older democracies. Thus, the
countries from the former category have to catch up with a numer of normative
standards that are characteristic of civili!ed nations.
As the author points out, in order for the transition to take place, a reak needs to
e made from a regime where the law was a mere interface ecause the ruling party was
in charge of the ma"or decisions. The transition is to re # estalish politics within legal
constraints i.e. the law should never e a tool to achieve political o"ectives.
$owever, over the last few years and in the context of the memership of the
%uropean &nion, the situation of the dialogue ' have "ust mentioned has changed. Three
processes are talking place(
). Idealization constitutional language has started to e used as a means of refurishing
existing arrangements within the &nion.
*. De politicization # affects the position of the %uropean polity in what regards
democracy.
+. Economic due process # any legally created restriction on the pursuit of economic
aims re,uires a showing of its rational and proportionate pursuit of pulic interests.
'n what follows, ' shall speak aout each of these three processes.
IDEALIZATI!:
" -odern constitutions define existing powers.
. They employ norms in order to present a transparent practice of the state.
. $owever, even the simplest mapping of norms can e given a scheming twist.
. 'n what regards the %uropean &nion, this took place in the case of the /ison 0eform
Treaty. According to the author, this Treaty(
)
a1 2eflects attention y leaving such issues as free movement, the clauses of the flag and
the anthem in an oscured state3
1 $as hardly made any progress with regard to social rights3
c1 2oes not address the prolem of the distinction etween hard and soft law3
d1 &ses legal texts in order to ideali!e realities.
. The conclusion of the author is that norms can e used in order to ideali!e realities and
to present social facts as eing expressive of ideal or of something evil.
DE PLITI#IZATI!
. The memers of the %uropean 4arliament represent the citi!ens of %urope.
. The %uropean 4arliament had ecome powerful and influential in the %uropean political
process.
. The author states that the %uropean &nion should not e descried as a parliamentary
democracy, ut as an organi!ation whose success is ased upon a deficit in democracy.
. $e explains this y using the elections to the %uropean 4arliament which in his opinion
do not offer %uropean citi!ens the opportunity to vote for change.
. Also, the competing parties do not present future %uropean polity in a different manner.
. 5iven these facts, there is nothing that voters can identify themselves with.
. /egislative choices have to face very little opposition and this is why political process
as a whole is assimilated in administration.
. As a conclusion, the %uropean &nion is a machine which is associated with economic
prosperity.
E#!$I# DUE P%#ESS
. The %uropean Court of 6ustice is using constitutional legality in order to address
integration o"ectives.
. The %C6 is facilitating the smooth flow of transactions from one country to another. 't
not imposes less stringent regulations on economic activities.
. The new economic due process reads the hori!ontal effect of fundamental freedoms and
proposes intervening actions to demands of proportionality.
*
. This hori!ontal effect enefits from a new approach in a narrow and a road
formulation.
. The narrow formulation( non # state action falls under the principle of hori!ontal effect
of a fundamental freedom only when the action regards the conclusion of a collective
agreement.
. The road formulation( the activity in ,uestion may e causally even farther removed
from a collective agreement.
. The %C6 admits the existence of the right to take collective action and insists on the fact
that fundamental freedoms are e,ually relevant.
. The activity of the %uropean &nion extends to the social sphere and thus the %C6
addresses the issue of "urisdiction in what regards the interests of workers.
. The exercise of fundamental rights needs to e "ustified through fundamental freedoms
and not the way around.
. The resulting ,uestion for fundamental rights affects reverse proportionality 7 have the
&nion or the -emer States done enough to protect the interests of workers8
T&E #%E ' S(STE$ T%A!SITI!
. The &nion is reaking away from its commitment to the rule of law.
. -arket integration and its o"ectives seem to e more important that the constraints set
y the Treaty law.
. The %C6 treats action y trade unions as eing on the same level with the exercise of
sovereign rights.
. The new economic due process can e applied to new -emer States due to the fact
that they can enefit from comparative competitive advantage.
. The %C6 forces -emer States to reform their economies in accordance with universal
economic lierali!ation.
. 'nstitutional differences are seen as ostacles to competition.
. According to the author, the rule of law has taken a turn for the worse in the %uropean
&nion.
+
'n the conclusions to the paper, Somek proposes three options of improvement.
). $e considers that a reply to the economic due process involves a preliminary reference
procedure which would avoid challenging the Court decisions.
*. -emer Stated themselves could adopt a political opt # out mechanism which would
help them to defend aspects regarding their own situation in the %uropean &nion.
+. Another option could e a full legislative override y the Council which would e the
appropriate institution to address complaints regarding the "udgments of %C6.
Somek ends his paper y stating( 9Adopting a real constitution my e the only
way out.:
;