The European Union (EU) is currently and simultaneously facing three huge challenges, which are making the present period the most serious crisis the EU has ever known.

First, there is an immediate and urgent problem, which already affects the stability of the EU and might even affect its survival if it is not solved rapidly: the acute crisis of the euro area. The imbalances in the EU's economic and monetary union (EMU), as it is conceived in the EU treaties, are serious. They will be difficult to correct as long as those Member States who have the euro as their currency remain the masters of their own budgetary and economic policies, as is allowed by the treaties. The process of giving huge loans to countries in need (Greece, Ireland and Portugal) might soon reach both its economic and political limits. Many economists think that no solution will be found without ‘significantly increasing the degree of political union’ according to Paul de Grauwe, or what a Nobel prize-winner for economics (2001), Paul Krugman, calls ‘a revised Europeanism’ and another Nobel prize-winner for economics (2008), Michael Spence, calls an inevitable ‘greater centralization and political unification’. Such a great leap forward would not only raise economic problems, but also political, institutional and legal ones.

(NB: responses were also received from all participating governments)

Social partner organisations:

1. European Centre for Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP)

2. European Trade Union Confederation (ETUC)

3. European Association of Craft, Small and Medium-Sized Enterprises (UEAPME)

4. Union des Industries de la Communauté Européenne (UNICE)

Non-governmental organisations:

1. The European Older People’s Platform (AGE)

2. ATD Fourth World

3. Combined European Bureau for Social Development (CEBSD)

4. European Anti-Poverty Network (EAPN)

5. European Disability Forum (EDF)

6. Eurochild

7. European Federation of National Organisations Working with the Homeless (FEANTSA)

8. Fédération Européenne des Restraités et Personnes Agées (FERPA)

9. The Platform of European Social NGOs (European Social Platform)

Organisations representing other policy actors:

1. Council of European Municipalities and Regions (CEMR)

2. European Association of Public Sector Pension Institutions (EAPSPI)

3. Network of Major European Cities (Eurocities)

4. European Network of Specialised Equality Bodies (EQUINET)

Introduction

The peculiar interest of lawyers in the Open Method of Coordination (OMC) has often revolved around two elements, or two supposed advantages, that the turn to governance in the EU could represent. The first has been discussed under the heading of ‘directly-deliberative polyarchy’ (DDP), or alternatively ‘democratic experimentalism’. What advantages does the OMC offer for the democratic character of European law? Can it be said to provide a new basis for legitimating law in a transnational environment, or linking it to the concerns of affected parties? Or is it, alternatively, an instrument designed to centralise power above and beyond the confines of Europe’s constitutional framework?

The second set of questions revolves around more social concerns. To what extent does the OMC imply not just a change in how we conceive of law’s democratic pedigree, but also in its relationship to a surrounding society? Whereas experimentalism’s critique aims at the static nature of the European legal order (its distance from a more dynamic ‘underworld’ of regulatory practice), the critique offered by those lamenting Europe’s ‘social deficit’ is targeted at European law’s obliqueness; its failure to consider the social impact of what it is doing, or engage with questions of how European integration is protecting or inhibiting the reconstruction of the welfare state.

Question 1 – The added value of the OMC

To what extent has the OMC helped to achieve progress in the national policy-making process and at the European Level?

• How and to what extent has the OMC influenced or helped to advance the national policy agenda?

• Have recent reforms and policy initiatives benefited from experience in other countries?

• Is a reflection on the experiences of other EU countries normally carried out in the process leading to the adoption of a new policy measure?

• Has the OMC been an efficient and effective method in view of achieving the common objectives that were established for it?

• To what extent has the OMC contributed to develop a common understanding of the challenges to social inclusion and to pension sustainability in the EU? Has it also contributed to a greater convergence of policy responses?

Question 2 – The common objectives

Are the common objectives still in line with policy priorities and do they still address the most important challenges as identified in the most recent Joint Reports?

• Have the objectives addressed all priority policy issues or have there been major gaps or blind spots?

• Has too much attention been devoted to a specific issue (in relation to its political importance)? Are there any objectives that might have become obsolete?

• Among the common objectives, across the different policy sectors, has there been overlap?

• Have the common objectives been formulated in a too general or abstract way/just about right/in too detailed or narrow way?

Introduction

The academic debate over new governance contains one aspect that may be surprising or even counter-intuitive to those approaching it for the first time. While new governance is most often seen as a political or administrative project, it has been defined through the categories and distinctions of law. This shouldn’t be. The Lisbon European Council decided that the OMC should be non-binding, and therefore not subject to the normal role of courts in practising judicial supervision and review. There are few cases in which the method has been discussed, and none in which its principal recommendations have been overturned. If governance lacks jurisprudence (the lifeblood of legal practice), then of what concern is it to the categories and distinctions of law?

At the same time – for something so far away – it is remarkable how much of the governance debate has been considered and defined in legal terms. Legal academics have probed the basic design and structures of governance, to the extent that much of the debate in which it is immersed has revolved around a limited number of influential legal studies. These studies have contrasted two projects; on the one hand, the attempt to ‘constitutionalise’ the EU through more clearly mapping the boundaries of European and national action – a project that has now metamorphosised into the present Lisbon Treaty – and on the other, the development in Europe of a multi-level governance structure (in which competences have been divided and shared). Lawyers have in a key sense set the terms of the policy debate in the absence of law; or, at the very least, in the absence of what we have traditionally understood by that concept.

Introduction – what does it mean to ‘constitutionalise’ new governance?

If economists seek to resolve every pressing problem of public policy with a market-based solution, the response of the lawyer to most public problems is to ‘constitutionalise’ them away. From the great early social contract theories of Locke and Hobbes on, the Constitution has been seen as a vehicle to tame arbitrary forms of political power, and place them under popular control. It is the response of the cool-headed lawyer to a society that would otherwise be awash with irredeemable competition and conflict.

Given this natural impulse, it is little surprise that we, as lawyers, should seek to ‘constitutionalise’ new governance. As the last chapter has shown, processes like the present OMC SPSI face numerous deficits. They are overrun with unaccountable forms of executive power. They furthermore privilege forms of taken-for-granted knowledge that in fact shield important substantive political preferences. They have failed to promote decentralised forms of participation or ‘learning’, and even undermined those institutions, like courts and parliaments, that could act as an effective check on executive activities. The OMC seems a particularly apt target to be brought under the realm of ‘law’s empire’; the procedural safeguards and political controls that constitutionalism the world over has offered.

What is the future of the OMC?

This book has charted both the development and the practice of the Open Method of Coordination, from its original promise, to its numerous challenges and failings. It has sought to conceptualise its relationship to law, in order to consider not just the policy outcomes of ‘new governance’, but also the legal and political relationships that it has created. As we have seen, the OMC is part of a significant ‘transformation’ in the dominant governing instruments of EU law. This challenge has not only altered our view of what ‘rule-making’ in a post-national setting means, but also provoked extensive anxieties among important domestic and European actors. The ‘rise of new governance’ has signified the entry of both a new descriptive reality, and a new set of normative concerns, over the future of the EU legal order.

One wonders, however, if this ‘rise’ is to be accompanied by a fall. What is the future of methods like the OMC, and how might that future be different from the practice of ‘new governance’ in the present day? While the late 1990s, and early part of this decade, saw an explosion of open coordination onto the European scene, there are numerous reasons to be sceptical about its place in the EU’s legal order in the coming decades. These concerns emerge both from external developments, and from the tensions outlined in the substantive parts of this thesis.