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european affairs

Concerns over the EU legal order How far can the European Commission go in interpreting procedural rules? Several recent cases fuel this discomfort By Daniel Guéguen*


he Lisbon Treaty is not the best of treaties. In appearance, the treaty simplifies the legal framework and decision-making processes. In practice, however, post-Lisbon procedures have become more complex, opaque and increasingly ad-hoc. To put it bluntly, one gets the impression that European decision-makers are easing/ simplifying procedures and bending them as it suits. Since the beginning of 2010, when my book “Comitology: hijacking European power?” was published, a number of cases showing procedural flaws, have been brought to my attention. This made me question the Community method, the balance of power and in general the EU legal order. Based on these cases and reflections, I have written a 10 page dissertation which you can download at: A summary is provided here.

First of all, what is a legal order?

A good definition for this - in appearance - very clear concept is hard to find. After searching, the most compelling



reflection comes... from Canada. Guy Rocher, full Professor at Harvard and Laval University defines it as “a set of binding rules whose adoption is based on legitimacy. The rules and agents or bodies must demonstrate stability over time, relative permanence.” It is clear that the institutional instability that the EU has known over the last 10 years is in itself a source of legal instability. Just as a reminder of the long list of reforms the EU has undergone: the draft Constitutional Treaty, the comitology reform of 2006, the Treaty of Lisbon end 2009, a new comitology reform in 2011.

The top of EU Institutions sets the bad example “Free interpretations” of the European legal order are probably linked to some extent to the institutional, economic and monetary upheavals affecting the European Union since 2008, as if the urgency or gravity of the situation constitutes sufficient ground to adapt the law to the circumstances. Three examples are particularly illuminating: the adoption of the energy and climate change package in December 2008, de facto side-lining the European Parliament and the Council of Ministers to the benefit of the European Council of Heads of State or Govern-

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European Business Review (EBR) / 2-2012  

European Business Review (EBR) magazine, Issue 2 of 2012

European Business Review (EBR) / 2-2012  

European Business Review (EBR) magazine, Issue 2 of 2012

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