The European Crisis and the Transformation of Transnational Governance: Authoritarian Managerialism Versus Democratic Governance

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In the EU, confidence in democratic transnational governance has been shaken by the authoritarian and unsocial practices of crisis management. This book promotes a viable interdisciplinary alternative to these developments. Cover Half-title Title Copyright Preface: The Agenda and the Contents of this Volume and an Acknowledgement Contents List of Contributors List of Abbreviations Prologue: Money Matters: The Heads and Tails of Conflicts-Law Constitutionalism I. INTRODUCTION II. BETWEEN FACTS AND NORMS: LEGAL THEORY AND POLITICAL ECONOMY INTERTWINED III. LA MÉTHODE MONNAIE: STATES, MARKETS, AND MONETARY INTEGRATION IN EUROPE IV. HEADS OR TAILS: COMMODITY AND CREDIT THEORIES OF MONEY IN CONTEST V . INTEREST ON THE RISE: THE COMMODIFICATION OF MONEY IN MODERN CAPITALISM VI. AFTER BRETTON WOODS: FINANCIALISED CAPITALISM AND NEW FORMS OF GLOBAL MONEY VII. POLANYI UPSIDE-DOWN: ON THE SOCIAL EMBEDDEDNESS OF ‘INDEPENDENT’ CENTRAL BANKING VIII. MONEY MATTERS: A MEDIATOR OF CONFLICTS AND CRISIS IN THE POST-NATIONAL CONSTELLATION Part I: Re-Configurations of the European Polity and its Constitutional Constellation after the Financial Crisis Section 1: Institutional Defects and External Effects: New Modes of Economic Governance in the Shadow of Carl Schmitt? Chapter 1: Three Transformations of Europe and the Search for a Way Out of its Crisis I. STRUCTURING THE ARGUMENT II. FROM COMMON MARKET TO COMMON CURRENCY: THE PYRRHIC VICTORY OF THE INTEGRATION-THROUGH-LAW PROJECT III. ALTERNATIVE VISIONS AND THE THIRD TRANSFORMATION OF EUROPE IV. UNFREEZING THE LAW-POLITICS RELATIONSHIP THROUGH CONFLICTS-LAW CONSTITUTIONALISM Chapter 2: Compensating for Democracy’s ‘Defects’: The Case of International Investment Law I. INTRODUCTION II. JUSTIFYING NEO-LIBERALISM III. ARGENTINE REGIME SHIFT IV. INVESTMENT LAW RESPONDS V. DEMOCRATIC THEORY CONSCRIPTED VI. DEMOCRATIC THEORY’S DEFECTS VII. CONCLUSION: RETURN TO DELIBERATION? Two Comments Global Exceptionalism and the Euro Crisis: Schmittian Challenges to Conflicts-Law Constitutionalism I. INTRODUCTION II. EMERGENCY POLITICS AND EXCEPTIONALISM IN THE EURO CRISIS III. GLOBAL EXCEPTIONALISM AND CONFLICTS-LAW CONSTITUTIONALISM IV. ONE STEP BACK, TWO STEPS FORWARD? The Moment of Schmittian Truth: Conceiving of the State of Exception in the Wake of the Financial Crisis I. INTRODUCTION: THE FINANCIAL CRISIS AND THE FACES OF EXECUTIVE DOMINANCE II. BETWEEN SECURITISATION AND NORMALISATION: GLOBAL GOVERNANCE AND AMERICAN ADMINISTRATIVE LAW 2.0 III. IS CONSITUTIONALISATION THE ANSWER TO GLOBAL ECONOMIC EMERGENCY? IV. CONCLUSION Section 2: From Social Welfare to Economic Competitiveness through Social Austerity? Chapter 3: The Struggle for Union Rights Under the Euro and the Dialectics of Social Integration I. INTRODUCTION II. THE FATE OF ‘THE SOCIAL’ IN THE TRAJECTORY OF THE UNION III. ANOTHER FOCUS: THE MEMBER STATES’ LABOUR RELATIONS IV. EUROPEAN FUNDAMENTAL RIGHTS PROTECTION AS A LIMITATION OF CRISIS POLICIES? V. CONCLUSIONS Chapter 4: Labour Market Governance in Wake of the Crisis: Reflections and Possibilities I. INTRODUCTION II. LABOUR MARKETS IN CRISIS: FISCAL, MONETARY AND LABOUR MARKET POLICY III. THE NEW NORMAL IN LABOUR MARKETS IV. NEW FAULT LINES? DEBT AND INEQUALITY V. LABOUR LAW AND DEMOCRACY GOING FORWARD? Section 3: Political Projects and the Logic of the Market Chapter 5: Of Capitalist Nostalgia and Financialisation: Shareholder Primacy in the Court of Justice I. INTRODUCTION II. CAPITALISM IN THE COURT OF JUSTICE III. SHAREHOLDER PRIMACY AND FINANCIALISM IV. CONCLUSIONS Chapter 6: External Effects and Legal Constraints of the German ‘Energiewende’: A Search for Sound Responses to European Conflict Constellations I. INTRODUCTION II. THE POINT OF DEPARTURE: PREUSSENELEKTRA III. CIRCUMVENTION STRATEGY IV. JUSTIFICATION AND POLITICAL GOVERNANCE UNDER RECOGNITION OF THE EU INTERNAL MARKET V. CURRENT DEVELOPMENT: TOWARDS PREDOMINANCE OF MARKET LIBERALISM VI. CONCLUSIONS AND OUTLOOK Epilogue Chapter 7: Re-embedding EU Governance Fields: A Research Agenda I. INTRODUCTION II. THE RISE OF THE EU POLITY AIMING FOR MAXIMUM WEALTH CREATION WITH VALUES OF AN INCLUSIVE AND SUSTAINABLE SOCIETY? III. EU POLICY IN THE SOCIAL SPHERE? IV. TOWARDS AN OPERATIONAL SUBSTANTIVE DEFINITION OF THE NON-ECONOMIC SPHERE V. THE EMBEDDEDNESS APPROACH VI. CONCLUSION: THE FURTHERANCE OF AN ‘EMBEDDEDNESS’ RESEARCH AGENDA PART II: A Crisis of Europe’s Regulatory Politics: The Turn to Executive Federalism Section 1: Whither the European ‘Regulatory State’? Chapter 8: Challenging Executive Dominance in European Democracy I. INTRODUCTION II. EU EXECUTIVE POWER: EVER DEEPER AND WIDER? III. EVOLVING WORKING PRACTICES OF EU EXECUTIVE ACTORS IV. EXECUTIVE DOMINANCE AND DEMOCRACY IN EUROPE: A RECURRENT CHALLENGE Chapter 9: A Technocracy of Governing: Power Without the State; Power without the Market I. DOMINANT RATIONALITIES II. DEAF TECHNOCRACY III. POST-CRISIS MARKET UTILITY IV. WHAT IS LEFT OF MARKETS? Chapter 10: Deliberative Supranationalism in the Euro Crisis? The European Central Bank and The European Council in Times of Conflict I. INTRODUCTION: CONFLICT, CRISIS, AND DELIBERATION II. BACKGROUND III. DELIBERATIVE SUPRANATIONALISM AND THE LIMITS OF THE REGULATORY STATE IV. METHODOLOGICAL REMARKS V. ANALYSIS VI. OUTLOOK Section 2: Whither ‘Deliberative Supranationalism’? Chapter 11: Comitology After Lisbon: What is Left of Comitology as We Have Praised it? I. A NEW STRUCTURE FOR LEGISLATIVE DELEGATION AND IMPLEMENTING POWERS OF THE EUROPEAN COMMISSION—ARTICLES 290 AND 291 TFEU II. COMMON UNDERSTANDING ON DELEGATED ACTS III. CRITERIA FOR APPLYING ARTICLES 290 AND 291 TFEU IV. COMITOLOGY—INTERGOVERNMENTAL BARGAINING OR DELIBERATIVE DEMOCRACY? Chapter 12: Risk Regulation, GMOs, and the Challenges to Deliberation in EU Governance: Politicisation and Scientification as Co-Producing Trends I. INTRODUCTION II. RE-FRAMING THE PROBLEM OF GMO REGULATION: POLITICISATION AND SCIENTIFICATION AS CO-PRODUCING TRENDS III. GMO REGULATION BETWEEN LEGISLATIVE RULES AND ADMINISTRATIVE PRACTICES IV. FINAL REMARKS: THE PROMISE OF DELIBERATION IN EUROPEAN RISK GOVERNANCE Part III: Deliberative Qualities of Conflict Resolution Beyond the EU Chapter 13: Conflict Mediation Through International Agencies: The Case of the UN Specialised Agency for Information and Communications Technologies I. INTRODUCTION II. A SHORT INTRODUCTION TO THE ITU III. CLASSIC ITU-T AS A TYPICAL SECOND DIMENSION OF CONFLICTS LAW IV. ITU-T UNDER PRESSURE OF NEW CONFLICTS V. IMPLICATIONS OF THE NEW SITUATION FOR THE ITU-T VI. TENTATIVE REFORMS IN THE ITU VII. DELIBERATION AND NEGOTIATIONS AS A MEANS OF CONFLICT RESOLUTION? Chapter 14: Professionalisation Contra Technocracy: Global Governance, Reflective Practice, and the Constitutionalisation of the Transnational Sphere I. INTRODUCTION: GLOBAL GOVERNANCE AND THE PROFESSIONALISATION PROBLEM II. SETTING THE STAGE: PROFESSIONAL PRACTICE AS A MECHANISM OF INSTITUTION-BUILDING III. BRINGING PROFESSIONS BACK IN: TOWARDS A THEORY OF REFLECTIVE GLOBAL GOVERNANCE Part IV: Contextualising Conflicts-Law Constitutionalism Chapter 15: Experimenting Constitutionalism in the EU: Co-ordinating Legal Difference Through Mutual Recognition, Mutual Law and Mutual Learning I. INTRODUCTION II. CO-ORDINATING LEGAL DIFFERENCE THROUGH MUTUAL RECOGNITION AND MUTUAL LAW III. CO-ORDINATING LEGAL DIFFERENCE THROUGH MUTUAL LEARNING IV. THE CONSTITUTIONAL CRITIQUE OF EXPERIMENTALISM V. CONSTITUTIONALISING EXPERIMENTALISM VI. DEMOCRATIC CONSTITUTIONALISM AND THE POST-NATIONAL CONSTELLATION VII. EXPERIMENTAL CONSTITUTIONALISM Chapter 16: ‘Conflicts Law as Europe’s Constitutional Form’ … and the Conflict of Social Norms as its Infrastructure I. PRELIMINARY REMARKS II. THE ‘INSTITUTING POWER’ OF SOCIAL NORMS III. GENERAL NORMS AND THEIR SPECIFIC APPLICATION IV. THE ACQUIS ÉTATIQUE: GOOD AND BAD INSTITUTIONS AND THE DIFFICULT PROCESSES OF TRANSFORMATION V. EUROPE AND THE NATIONAL REGRESSION VI. THE ILLUSION OF THE INTEGRATION BY LEGAL ‘PRINCIPLES’ VII. OUTLOOK Epilogue: How to Make it More Complicated Again? The European Constitutional Evolution between Kantian and Managerial Mindset I. INTRODUCTION II. MINDSETS III. EVOLUTION AND CRISIS Index