11 Colum. J. Eur. L. 241 (2005)

Francesca Bignami. Associate Professor, Duke University School of Law.

Contemporary democracies are undergoing a radical transformation: public authority is migrating from the national realm to the global arena. The institutions through which we seek to protect ourselves from physical violence, promote economic prosperity, keep the environment clean, and further the other attributes of the good life are now as much global as national. Domestic legislatures, executive branches, courts, and administrative agencies do not decide alone. They are constrained by the decisions of international bureaucrats, they abide by the rules adopted by transnational networks of regulators, and they comply with the decisions of international tribunals. By establishing, participating in, and adhering to global regimes, domestic politics today share power with government officials and citizens elsewhere in the world and with international organizations to an extent that is unprecedented in recent memory.

What shape will global authority take? What configuration of public power and rights against government will emerge? This Article takes a first step towards developing a positive theory of rights in institutions of global governance through a study of the European Commission, one of the oldest and most powerful international organizations in existence today. Rights, it turns out, are creatures of historical challenges to international organizations, based on national constitutional traditions, and the calculated, rights-innovative responses of those organizations.

The Commission began in 1952 as a specialized international secretariat responsible for the administration of European coal and steel production in six member countries. In 1957, the same countries signed the Treaty of Rome, in which they made ambitious commitments to a common market in goods, services, capital, and labor. The state parties entrusted the Commission with the far-reaching powers of a classic executive branch. Yet the Commission was conceived as an organization responsible for administering an international regime, in which the participants were states, not citizens. Hence individual rights were largely absent from the Treaty of Rome.

The transformation, a half century later, is remarkable. The Commission must engage in a full, adversarial hearing when enforcing European law against individuals and firms. It maintains a public, electronic register of all legislative and administrative documents and makes those documents accessible to European citizens. Before the Commission submits a legislative proposal to the Council and the Parliament for a decision, it must invite public comment on an early draft and incorporate the comments in the final proposal. In sum, European citizens are guaranteed a number of procedural rights common to national systems of democratic government: the right to a hearing, the right to transparency, and the right to civil society participation.

Administration through adversarial hearings, extensive disclosure of government documents, and consultations open to all groups and citizens is common, but not universal. Another, equally liberal democratic outcome could have been imagined just as easily. Rather than require a full adversarial hearing before the Commission, the Court of Justice might have used its extensive fact-finding powers to scrutinize the facts, law, and policy choices underpinning the Commission decision. (The Court of Justice is the highest court of the European Union and has jurisdiction over European legislative and administrative acts.) There might have been no right to official documents. And public comment on draft legislation might have been staged at the very end of the legislative process, when the Commission proposal was under consideration in the European Parliament. The alternative, imagined Commission would have been a very different government body, yet it still would have met comfortably the standards of today’s set of liberal democracies.

Why do Europeans today enjoy this particular constellation of rights when the Commission exercises authority? How do we explain the legal rules that constraint and shape the Commission’s powers? In this Article, I argue that in the early days of the European Community, rights before the Commission were patterned on the laws and legal traditions of the dominant Member States. Changing political circumstances largely outside the control of the Commission and other European institutions gave rise to a number of discrete, historical challenges to their authority. Most of these challenges came from citizens with allegiances to minority, national constitutional symbols and practices which were determined to retain them in the face of European integration. To preserve and extend their authority, European institutions adopted these constitutional ideals and hence altered the nature of European rights.

The evidence for this explanation comes from the historical record. Part III demonstrates that European citizens enjoy three major, historically distinct sets of rights in their relations with Europe’s executive branch: the right to a hearing, the right to transparency, and the right to civil society participation. The basic parameters of Commission procedure were set down in the founding Treaty of Rome and a number of legislative instruments adopted in the 1960s. Then, in 1973, the United Kingdom acceded. The common law system of administrative law contained a number of anomalies compared to the continental systems that were already part of the European Community. In 1973 the risk was that English courts would not enforce Commission decisions that failed to abide by the common law’s guarantees of fair and lawful public power. I show that the Court of Justice and the Commission responded by adopting the common law right to a hearing in European competition proceedings, a right which then migrated to other areas in which particularized Commission decisions adversely affected the interests of firms or individuals.

The second historical moment was the Danish rejection of the Maastricht Treaty in 1992. I demonstrate that, to guarantee Danish ratification of the Maastricht Treaty the second time around, the twelve Heads of State made a series of commitments to transparency patterned on the Danish, and more generally, northern model of open government. The European Parliament then combined its long-standing institutional interest in more information on Commission policymaking–critical for the exercise of the Parliament’s legislative powers-with the northern transparency ideal to push for extensive access-to-documents legislation. The third and final historical juncture was the resignation of the Santer Commission in 1999, after vitriolic criticism from a European Parliament intent on asserting its new treaty power to hold the executive to account. I show that the new Commission’s response was to adopt legal measures guaranteeing that civil society-citizens and organized interests-would be consulted in the lawmaking process, hence improving its democratic credentials in the eyes of the European public and creating allies among the civil society groups that were to be consulted. This innovation was patterned on both the trend towards civil society participation in other international organizations and the European tradition of corporatist interest representation.

This Article contributes to a number of different strands in the literature on European integration. Legal scholarship often depicts European rights as a conscious attempt by legislators, judges, and scholars to bring the realities of the new European polity in line with universal norms of fair and democratic government. By exposing national constitutional variation and the politics through which particular constitutional ideals are adopted over others, this Article serves as a corrective to the legal perspective. An empirically grounded understanding of European rights can contribute to a more rigorous evaluation of the desirability of the emerging European constitutional order.

In political science, one of the longest-running debates over European integration is the balance between sovereign states and supranational institutions in setting the pace of European integration. While some scholars argue that traditional state interests and the balance of power among states are critical, o thers take supranational institutions-and their interest in expanding their powers and pushing forward integration-as the decisive force behind integration. My review of the origins of rights before the Commission shows that both sets of actors, at different points in time, were agents of rights. More importantly, the empirical analysis brings to light two important constraints on the ability of states and supranational institutions to design European rights to their advantage, often overlooked in the political science literature. The first is history writ large: understandings of fair and democratic government developed within the nation-state and representing the accumulation of experiences, beliefs, and norms over generations. The second is history writ small: episodic, external challenges to the authority of European institutions that serve as the context in which such institutions further their interests. These factors should be taken into account in explaining the rights that define, today, what it is to be a European citizen.

The European experience can also inform the literature on international relations and international law. Theories of international systems have sought to answer two related questions: Why do states create international institutions and, once created, do international institutions behave autonomously and hence act as an independent causal force in international politics? The field is divided between the realist and liberal institutionalist camps. Realists take the view that international organizations are established to facilitate relations among states by handling minor tasks; international organizations do not have the power to shift outcomes away from the bargains that the states would reach in their absence.10 Liberal institutionalists attribute far more significance to international organizations. They argue that international organizations are conferred considerable powers by states and that such organizations can shape international relations, independent of their founding states.” Yet both schools treat the international organization itself as a black box. Courts and administrations in international regimes are presumed to operate according to certain functional imperatives that are common to courts and bureaucracies everywhere, regardless of whether they are national or international. The European experience can serve as a springboard for thinking about why international courts and bureaucracies take the form they do, guaranteeing individuals certain rights and not others.

Understanding European rights is crucial for the American legal profession for several reasons. First, as this Article amply demonstrates rights before Europe’s executive branch are very different from the rights guaranteed under American administrative law. Yet this point is missed by American scholars and lawyers alike, to the detriment of their students and clients. The similarities that Americans tend to discern between European and American administrative procedure has the quality of bad puns rather than true resemblances. Only a sustained examination of the roots and evolution of European rights can do away with the misinformation caused by those superficial semblances and uncover the real nature of European rights. Second, the dynamic of competing national rights traditions and strategic institutional interest that informs European rights is one that we can expect to animate a variety of international bureaucracies and tribunals. Therefore, the European experience contains useful lessons for Americans as they navigate today’s emerging system of global governance.

The argument is organized as follows. Part II presents three major sets of explanatory theories with implications for European rights-legal constitutionalism, realism, and neo-functionalism. Part Ill, which constitutes the bulk of the Article, presents my argument through a detailed examination of the historical record. For each major set of rights, this consists of an examination of procedural rights before and after the historical event; a description of the event and the nature of the challenge it posed to European authority; specific evidence of the salience of national rights traditions following the event and the strategic use of the right by certain European institutions to consolidate their powers; an analysis of the evolution of the right after the historical moment; and a comparison of the new, invariably more expansive, European right with the right in the place of origin. Because understandings of good government developed within the nation-state were critical, the account of rights before the turning point includes a review of the constitutions and administrative procedure laws of the Member States. Part IV returns to the theories of European constitutional design, explores how their predictions fare when faced with the historical record, and proposes revisions and new hypotheses based on my analysis of the evidence.

In the Conclusion, I take stock of rights before the Commission and speculate as to why, once certain rights are adopted by European institutions, they tend to become more extensive than in their place of origin.