The Constitutionalization of the European Union by Berthold Rittberger & Frank Schimmelfennig

Author:Berthold Rittberger & Frank Schimmelfennig [Rittberger, Berthold & Schimmelfennig, Frank]
Language: eng
Format: epub
Tags: Political Science, World, General
ISBN: 9780415420891
Google: gX3oAQAACAAJ
Barnesnoble:
Goodreads: 9006295
Publisher: Routledge
Published: 2007-01-15T07:42:38+00:00

EXPLAINING THE CONVENTION OUTCOME

The importance of the community environment

Given the initial resistance to a communitization of justice and home affairs in some if not most capitals, the convention proposal and its endorsement by the following IGC call for an explanation. Berthold Rittberger and Frank Schimmelfennig (2006) argue that parliamentarization and the institutionalization of individual rights in the EU are facilitated by the fact that constitutional politics takes place within a community environment. As a consequence, claims in line with the EU’s liberal ethos are generally more successful than demands that ignore community norms. The impact of the community environment, in turn, is conditional on several context conditions. First, the community environment is likely to be more influential if a constitutional decision is perceived by EU institutions to have reduced previous (national or international) parliamentary competencies or human rights (‘salience’). A second context condition is the existence of an institutional precedent within the EU (‘internal coherence’). Moreover, the international institutionalization of the norms in question outside the EU (‘external coherence’) contributes to the impact of the community environment. Finally, the publicity of the negotiations and resonance with national constitutional cultures may help the community environment to play a more prominent role.

As regards the communitization of justice and home affairs, all conditions except external coherence have indeed been present at the time of the convention. First, the communitization of police co-operation and justice and home affairs in general has become more and more salient since the early 1990s. As pointed out above, the Europol convention and the protocol providing for Europol officers’ immunity in particular were severely criticized for undermining fundamental rights during the ratification process. Those pleading for ratification acknowledged that immunity should not be granted to any police officer with executive competencies. They emphasized, however, that Europol’s competencies were restricted to data analysis and immunity would therefore not raise any problems for fundamental rights. At the same time, it was still contested whether Europol’s data-related activities were innocuous enough to warrant immunity. As a side effect, however, a consensus emerged among proponents and critics that immunity would have to be withdrawn once Europol acquired operational powers. For example, Ray MacSharry, IRE(Gov), argued in the convention debate on justice and home affairs that‘[d]emocratic and judicial control of Europol is currently exercised satisfactorily via the Member States and their parliaments. There is no reason to change the situation as long as Europol has no operational police role’ (6/6/02, 4-020).14 In the same vein, the German government assured the Bundestag that an expansion of Europol’s competencies would necessitate a renewed discussion of immunity (Knelangen 2001: 249). The discussion about parliamentary and judicial control proceeded along similar lines: proponents downplayed Europol’s impact on fundamental rights but, by the same token, acknowledged that the marginalization of the EP and the ECJ could hardly be upheld once Europol gained further competencies.

The issue of enhancing parliamentary and judicial control gained in salience as the EP and, to a lesser degree, the European Commission made respective demands in the run-up to the IGCs in 1996 and 2000.

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