Course | Columbia Law School

The standard story of the development of the EU focuses on the distinction between negative integration (untrammeled exchange within a single market) and positive integration (the harmonization of norms in such areas as work conditions and social protection), so as to create a supranational equivalent to the national welfare state accommodating the diversity of the EU members and the demands of global competition. In the standard story the transition from negative to positive integration is hindered, and perhaps even excluded, by the limited powers member states have granted the EU by treaty, and by regulatory races to the bottom in many domains of economic and social regulation, among member states pursuing beggar-thy-neighbor strategies. For free-market liberals these obstacles are efficiency enhancing; for social democrats they are a threat to social solidarity, seen as a good in itself and as a precondition for the flexible adjustment of market economies to rapidly changing conditions of competition. Where market liberals oppose efforts at positive integration, social democrats have traditionally worked to accelerate it, often by arguing for the transfer, to the EU level, of forms of regulation pioneered in national welfare states. In the course we will argue (1) that positive integration has proceeded much further than market liberals feared and social democrats imagined possible; (2) that this has been possible because races to the bottom are much less prevalent than the standard stories assume; but (3) above all because efforts at harmonization have produced novel governance instruments that create opportunities for collective learning and offer a potential answer to the "democratic deficit" in the legal and political system of the EU.

The course is in three parts, of which the first canvases successive stages in European integration. We present a historical reconstruction of the debates on integration, focusing on the intellectual history as well as on institutional developments. This part concludes with consideration of the tools that are used to establish an area of freedom, security, and justice between the Member States, which has developed very rapidly since 1999.

The second part of the course will focus on governance in the EU. It examines the variety of strategies developed to meet the challenges of European integration. In particular, we will discuss the significance of the principle of subsidiarity, which the 1992 Treaty of Maastricht imposed as a general requirement for the exercise by the Union of the competences it shares with the EU Member States.

The third part of the course critically discusses the various developmental possibilities created for the EU by the application of these tools. Here we first offer a diagnosis of the current predicament facing the EU, in the aftermath of its constitutional crisis of 2004–2005. Our hypothesis is that the crisis has its source in the belief by the "constitutional elite" that answers to the collective problems facing the EU Member States must be sought in more and better decisions being adopted by traditional methods of rule-making, in order to be implemented, again in a traditional form, by the national authorities. In contrast to the dominant approach focused on 18th-century models of constitutional reform, we will see the innovations in rule-making discussed earlier as an opportunity to rethink foundational law-giving at the Union level, and also as a means of bringing the democratic life of the EU down to the national level, for instance by creating new modes of involving national parliaments and civil society organizations in European-wide public debates, and by improving the accountability of national public servants negotiating in the EU toward their local constituencies. The alternative we will explore is in our eyes both more democratic and more efficient than its competitors. And it is, despite its novelty, still compatible with current constitutional framework, and is in fact already being experimented with in different fields. In that sense, it may be less beyond reach than the Constitution for Europe as conventionally conceived.