From harmonization to co-ordination? EU law in the Lisbon governance architecture

Abstract

The debate on the nature of law in the Lisbon Strategy has focused on the Open Method of Co-ordination (OMC), which has been defined in opposition to the Community Method, suggesting a shift from hard law to soft law. This contribution goes beyond this ‘either–or’ debate by analysing Lisbon as a governance architecture, composed of ideational and organizational components, affecting EU law. Although co-ordination is the central organizational device of this architecture, it has multiple meanings and cannot be reduced to the OMC. In the Lisbon Strategy, soft co-ordination is combined with hard law. The ideational and organizational components of Lisbon also have an effect on both the quantity of regulatory output and on the nature of EU law. Yet, the Lisbon governance architecture has only a very modest effect on the case law.

Keywords:

• Community Method
• co-ordination
• EU law
• hard law
• regulation
• soft law

Notes

Concerns about the OMC taking over from or impeding the development of hard law have particularly been expressed in relation to the EU's social dimension. See, for instance, Ashiagbor (2001: 317) describing a shift from ‘employment law’ to ‘employment policy’, and more recently Hatzopoulos (2007: 319–20) warning over the risk that the OMC replaces the classic Community Method in fields where the latter currently prevails.

The use of framework directives and comitology, for instance, are described as ‘new old governance’ as they provide more flexible forms of harmonization and variations on the Community Method without constituting entirely new (soft) alternatives to it.

Harmonization and integration through law do not necessarily entirely overlap. Neither the Treaties nor the EUCJ provide a definition of harmonization, but the TfEU counts 16 provisions explicitly excluding the adoption of harmonization measures in particular policy areas, which refers to the use of binding legislative intervention at EU level. Integration through law points to the place of the binding acquis communautaire, as interpreted and enforced by the EUCJ, in fostering European integration.

Co-ordination was never entirely absent in the European lexicon, but got only coherently defined as a policy tool by the Lisbon Summit. For example, the original Rome Treaty required the member states to co-ordinate their efforts on economic policies without identifying particular policy instruments (Art. 6 EEC), and required Community action to ensure co-ordination of national policies through European projects (Art. 41 EEC) or reports and opinions (Art. 105 EEC).

Maher (2007: 683) states briefly how European economic governance relates to the LS in a double way as compliance with the Stability and Growth Pact is a precondition of the Lisbon Agenda and its multilateral surveillance has features of the OMC. Kilpatrick (2006: 131) describes the European Employment Strategy as a ‘self-consciously integrated regime where the OMC, the European Social Fund and employment law measures each play a distinctive and overlapping roles’ (my emphasis) and points briefly (2006:141) to the effects of the relaunched LS on that regime.

European Council, Presidency Conclusions, Lisbon, 23 and 24 March 2000, 7619/1/05 REV1., paragraph 37.

Ibid., paragraph 38.

Ibid.

Commission Communication, ‘Working together for growth and jobs. A new start for the Lisbon Strategy’, COM(2005)24, pp.15 and 31.

Commission Communication, ‘Common action for growth and employment: the Community Lisbon Programme’, COM(2005) 330 final. Also Council Presidency Conclusions, 14 March 2008, paragraphs14 and 18.

Commission Communication on Streamlining the annual economic and employment policy co-ordination cycles, COM(2002)487 final, and Commission Communication, Working together for growth and jobs. A new start for the Lisbon Strategy, COM(2005)24, pp.31–3.

For example, Council Presidency Conclusions, 14 March 2008, paragraphs5 and 17.

Community Strategic Guidelines for 2007–2013, COM(2005)299 and COM(2005)304.

Kurpas et al. (2008: 53) qualify an act as ‘amending’ if it makes some reference to an older act, i.e., amending, following-up, terminating, repealing, extending or any other term indicating that previously adopted legislation was to be modified.

The increase in proposals for Directives is not in contradiction with the overall reduction in new legislative acts identified above. First of all, not all proposals end up in adopted acts. Moreover, Directives (as well as Regulations and Decisions) can constitute legislative acts adopted on the basis of the Treaties (mainly introducing new legislation) but can also be implementing acts adopted through comitology.

European Commission Communication, ‘Action plan: simplifying and improving the regulatory environment’, COM(276) final, 5 June 2002.

See also Council Presidency Conclusions, 14 March 2008, paragraph9, stressing the need ‘to ensure that the better regulation initiative delivers real and substantial economic benefits’.

COM(2005) 175, 16 March 2005.

COM (2005)535, October 2005.

http://ec.europa.eu/governance/better_regulation/simplification_en.htm (accessed 17 August 2010).

Ibid.

For review ex post on the ideational framework, see below.

A reciprocical provision in which the co-ordinated economic policies would have to be consistent with the employment guidelines is not defined in legally binding terms, hence suggesting a subordination of employment to economic policy.

Kurpas et al. (2008: 12) note a reduction in soft law documents between the Prodi and Barosso Commission in both the fields of economic policies (–17 per cent) and employment (–27.5 per cent).

Case C-322/88 Grimaldi [1989] ECR 4407, paragraph18. This case also made clear that national courts too have to take into account European soft law.

http://curia.europa.eu/en/content/juris/index_form.htm (accessed 10 August 2010).

I have set no limit on the time frame of the analysis. The Court's online database starts in July 1997, which provides all post-2000 Lisbon documents, but even earlier employment guidelines as they might have been picked up in the case law post-Amsterdam Treaty.

Word search has been on ‘Lisbon European Council’, ‘European Council at Lisbon’, ‘European Council of Lisbon’.

AG Maduro in C–384/02 Anklagemyndigheden v. Knud Grøngaard v. Allan Bang; AG Jacobs in C-32/04 Commission v. Luxembourg, para.6; AG Maduro in C-55/06 Arcor AG & Co. KG v Federal Republic of Germany, paragraph. 26.

Word search has been on ‘economic policy guidelines’, ‘economic guidelines’ and ‘guidelines on broad economic policy’.

Word search has been on ‘integrated guidelines’.

The word search has been on ‘employment guidelines’ and ‘guidelines on employment’.

C-144/04, Mangold v. Rudiger Holm; C-411/05, Palacios de la Villa v. Cortefiel Servicios SA; AG Sharpston in C-427/06, Bartsch v. BHS; AG Mazák in C-388/07; JC-388/07, The Incorporated Trustees of the National Council on Ageing v Secretary of State.

Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.

AG Sharpston in C-427/06; AG Ruiz-Jarabo Colomer in C-310/99, Italian Republic v. European Commission.

Given that there is no such concept as ‘employment recommendation’ (as opposed to Employment Guideline), the word search in this case has been on ‘Recommendation AND employment’, and ‘Recommendation and economic policy’ revealing all documents that mention both concepts.

The OMC is accidentally mentioned in two opinions by AG Trstenjak in C-350/06 and C-520/06. The AG does not deal with the topic of the OMC, but simply quotes an academic article (Smismans 2005b) that happens to have OMC in the title.