Lindseth, Peter L. --- "What’s in a label? The EU as ‘administrative’ and ‘constitutional’" [2017] ELECD 1122; in Rose-Ackerman, Susan; Lindseth, L. Peter; Emerson, Blake (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2017) 680

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter; Emerson, Blake

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784718657

Section: Chapter 41

Section Title: What’s in a label? The EU as ‘administrative’ and ‘constitutional’

Author(s): Lindseth, Peter L.

Number of pages: 19

Abstract/Description:

This chapter questions the dominant legal description of the EU, centered on the jurisprudence of the European Court of Justice (ECJ), which views the EU as a 'constitutional' level of governance in its own right. What a less ECJ-centric analysis tells us is that, despite what EU judges, lawyers, and law professors maintain, there are numerous features of EU public law that are not merely in tension with, but also that directly contradict, the dominant constitutionalist discourse. First and foremost, the EU remains almost entirely dependent on the Member States for the sine qua non of genuine constitutional power: the legitimate capacity to extract in a compulsory fashion and then redirect – what I am calling ‘mobilize’ – either fiscal resources (taxing and spending) or human resources (policing and defense) for the benefit of the polity as a whole. Secondly, even as to regulatory power that falls short of compulsory resource mobilization – particularly rulemaking and adjudicative power – the EU remains dependent on mechanisms of national oversight and intermediation that channel the more robust democratic and constitutional legitimacy of national institutions to the EU level. These mechanisms of ‘mediated legitimacy’ – drawing importantly on models developed in the postwar administrative state – have been central features of the institutional development of EU governance since its inception. Armed with this analytical framework, we can begin to answer the core question posed by this chapter: What’s in a label? Stated in the most direct way possible, this chapter argues that it matters a great deal legally how we view the EU socio-historically, particularly in this challenging task of reconciliation. If we determine that the EU is not properly understood as autonomously ‘constitutional’ but instead is merely an ‘administrative’ level of governance (even of a novel, powerful, supranational type), this then has significant implications for how to reconcile EU law with its properly administrative character. Most importantly, it suggests that we should deeply question the nominal ‘as if’ constitutionalism of the ECJ, rethinking fundamental judicial doctrines to bring them more into line with the EU’s deeper administrative character in a socio-historical sense.