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11 In the context of European integration this has been described as “functionalism,” which is a technically correct description of that European integration is based on delegation of national powers concerning particular governmental functions. However, the normative idea that underlies functionalism is the liberal view of public power, where law is thought of as separate from political will, both by its forms of institutionalisation and by its decision-making method. In that sense however, functionalism and more traditional understandings of separation of powers share basic pre-suppositions concerning the relation between political decision-making and corresponding political control of public powers on one hand, and legal control of public powers on the other. The difference between functionalist approaches and approaches based on separation of powers lies in the understanding of which kinds of institutions are necessary to accomplish such controls.Google Scholar

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16 However, that tension is far from always present; there are moments when it is in the institutional interest of the Council to adopt legislation that is directly effective rather than to adopt indirectly effective framework legislation since that can make the implementation of the legislation more expedient.Google Scholar

17 Marc Bungenberg, Art. 235 EGV Nach Maastricht (1999).Google Scholar

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20 While that might be theoretically contestable in the sense that it is hard to point to any clear explanatory factor for a particular common “institutional interest” of the various national executives, it nevertheless is the assumption that such a common institutional interest of the national executives still make a lot of sense to the adopted policies, e.g. the tendency to use art. 308 of the EC-treaty and (to a lesser extent) framework decisions in an expansive way in order to avoid parliamentary oversight at both the national and the European level.Google Scholar

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22 The most obvious case of this is when the ECJ has applied principles of state-liability for nonimplementation of directives and regulations of states. Although the ECJ has enabled citizens of the member states of the EU to vindicate their rights against the states, it has not created legal protection in the form of injunctions, but has instead chosen to develop principles of compensation for damages. However, since EC-law has mainly concerned economic damages, it is also clear that the difference between allocating costs in that way and by way of more general injunctions is relatively limited. However, the ECJ does, in cases where it finds a member state to be in violation of its obligations under the treaties, apply a mix between enforcement through principles of damages and injunctions applied to states, which seems to parallel state-liability in public international law. C-26/62 van Gend en Loos E.C.R. [1963] 3, C-6/90 Francovich and Bonifaci E.C.R. [1992] I-5357, C-224/01 Köbler E.C.R. [2003] I-10239 and C-173/03 Traghetti del Mediterraneo (not yet reported) are all examples of how the ECJ has applied the principle of state-responsibility in relation to state action within the framework of EC-law in a way which treats judicial powers as a part of a dependent part, analogous to the treatment of domestic judicial power on state-liability under public international law. C-105/03 Maria Pupino can be seen as an example how the ECJ has used the same principle in the context of EU-law.Google Scholar

23 Acceto & Zleptnig argue that the principle of effectiveness is a central structural principle of EC-law, which has been illustrated in some recent cases where the court has extended the effects of legislation under the third pillars in the national legal orders. The normative reasons are based on a combination of that citizens are to be treated equally regardless of their nationality in relation to EC-law, and that the benefits from cooperation that arise from coordination will not come about if effectiveness is an overarching legal principle in deciding which forms implementation of the community decisions should take. The problem, from a normative perspective however, is that this presupposes that all forms of cooperation within the framework of the EU should be given equal effectiveness. The problem that Accetto & Zleptnig point to is that this presupposes that effectiveness is to be an overarching concern for some kind of normative reason, while disregarding reasons against regarding effectiveness as an overarching value. In relation to national law, that seems to be related to protection of fundamental rights and legal certainty and to some extent to the protection of political accountability within the national political system. The alternative approach that some authors argue is that the ECJ has embraced an element of proportionality review as opposed to an across the board principle of supremacy. However, in relation to recent case-law, it seems as if the ECJ has instead chosen to adopt a far more extensive understanding of effectiveness as an overarching constitutional principle. See Accetto, Matej & Zleptnig, Stefan, The Principle of Effectiveness: Rethinking Its Role in Community Law, 11 European Public Law 375, 379-383 (2005). Ross, Malcolm, Effectiveness in the European legal order(s): beyond supremacy to constitutional proportionality, 31 European Law Review 476, 483-488 (2006)Google Scholar

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28 The argument of Levinson & Pildes is essentially that why political safeguards work rather through political parties than through institutions is that political parties represent people with different and sometimes changing preferences for how power is to be allocated among institutions. Levinson & Pildes assume that institutional choices are ultimately dependent on political preferences on substantive issues. That seems to be true when such preferences are channelled through a long-lasting organisational system such as parties that represent certain interests. In the context of legislative institutions without parties, it is clear that the argument depends on whether and to what extent such contingent preferences will influence the process of political decision-making. In certain contexts, such as the EU, it is obvious that the kind of influence based on representation of popular political opinion is mediated through a number of political institutions, nationally and internationally, with limited direct control of parties. On the other hand, the powers of the member states are still regarded as the source and as the final constraint on EU-law in the sense that the member states are the ultimate sources of authority of EC-law, and it is the states that ultimately decide on whether to retain EC-law as a part of their legal system. See Levinson, Daryl & Pildes, Richard H, Separation of parties, not of powers, 119 Harvard Law Review 2311 (2006). Kramer, Larry, Putting Politics Back in the Political Safeguards of Federalism, 100 Columbia Law Review 215-293 (2000)Google Scholar

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44 Vassilios Skouris, “Rechtswirkungen von nicht umgesetzten EG-Richtlinien und EU-Rahmenbeschlüssen gegenüber Privaten – neuere Entwicklungen in der Rechtsprechung des EuGH“, Zeitschritft für Europarechtliche Studien 4-2005, 474-476Google Scholar

45 For a more traditional understanding of the role of precedents, see Schauer, Fredrick, Precedent, 39 Stanford Law Review, 571 (1986-1987), In the context of EC/EU-law, see Albors-Llorens, Albertina, Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam, 35 Common Market Law Review, 1273 (1998), Arnull, Anthony, Owning up to Fallibility: Precedent and the Court of Justice, 30 Common Market Law Review, 247 (1993)Google Scholar

46 The ECJ notes in its decision that there is a duty to interpret national law to be in harmony with framework decisions. It is not obvious how far such an obligation goes and the ECJ does not define any general principle on that matter. However, it is notable that the ECJ did not reject the view that their interpretation would be contra legem in relation to Italian domestic law.Google Scholar

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48 One aspect that seems to be important in relation to unanimity requirements is that it provides for a certain minimal transparency to the decision-making process, namely that an unanimity requirement makes it clear that all changes were supported by all governments, unlike various forms of QMV-procedures that make it impossible for the citizens to know which government that took which position. In that respect, unanimity requirements enhances transparency and accountability, on the other hand, it only works to provide information in cases where there actually was a decision to change law, i.e. there is no possibility to account for non-decisions through the unanimity requirement.Google Scholar

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