In Lecture 23 we looked at

Liability of EU Institutions

In the last lecture, we examined the rules on the liability of EU

agencies and Institutions that operates in a way that
complements the provisions on judicial review of acts but that
also operates independently of it

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1
Introduction
23.1
We examined two key issues: the place of the EU liability jurisdiction
within the treaties as a whole and the pre-Bergaderm case law..

The Current Legal Framework Post Bergaderm

23.2
We set out the post-Bergaderm rules

Criticisms
23.3
We examined some of the criticisms of the EUs liability rules.

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 Lecture 24
Accountability of EU Institutions

In this final lecture, we take a broader perspective on the

judicial review procedure. We will examine the broader theme
of accountability within the EU and the role played by political
institutions

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 24.1
Concepts of Accountability and Legitimacy
Considered in general terms

Accountability in the EU
We examine how concepts of legitimacy and accountability have been
24.2
understood in the context of the EU. Finally, in order to counterbalance
discussions of judicial forms of accountability, we outline the political forms
of accountability at the EU level

Overview of Political Accountability Mechanisms in the

EU
24.3
Finally, in order to counterbalance discussions of judicial forms of
accountability, we outline the political forms of accountability at the EU
level 4
Target Reading

E. Fisher, The European Union in the Age of Accountability

(2004) 24 OJLS 495

5
 Concepts of Accountability and
24.1
Legitimacy

The question of how to ensure that government

is carried out in a way that is legitimate and
accountable is a perennial question within
constitutional theory.

The concepts of legitimacy and of accountability

are controversial as is the relationship between
them.

In earlier lectures, we discussed how the problem of legitimacy

can be distinguished from the question of the validity of
particular laws (this last question is of course central to the
process of judicial review under article 263).
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 In earlier lectures, I also developed an overarching concept of the
legitimacy of the EU based on the idea of supranational federalism .

This idea was a normative reconstruction of a concept of legitimacy for

the European Union. In other words, based on an analysis of the current
structures of the EU and of the historical context in which it was
developed, I attempted to delineate a set of ideas concerning what the
EUs political role ought to be. This was a conceptual analysis carried out
with practical intent.

In this lecture, I would like to focus in a more descriptive way concepts

related to legitimacy and accountability 0.25
7
It should be noted that this is a critical description guided by
the wider normative vision of the European Union, based on the
idea of supranational federalism.

Thinking about legitimacy and accountability within current

political structures and in much academic debate are arguably
guided by three particular approaches which will be outlined.

First it should be noted that the common feature of these three

approaches is that they typically are not based on an extensive
critical examination of the historical context of particular
institutions.
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 1 abstracting from
particular problems and
Instead, they seek to the contexts in which
gain a purchase on they were formulated
problems of legitimacy (this is said to
and accountability by contribute to the
neutrality in the way
the problem is handled

2 formulating simple 3 applying these criteria in

definitions of criteria to
be used often in a
deductive manner to
frame the solution of
problems
an attempt to measure
outcomes of policies or
structural changes so that
success or failure can be
diagnosed

4 re-iteration of the
same process
9
 It should be noted that
individual academic
proponents of these sorts of In general, they would typically
approaches would normally contest two points.
contest the terms in which I
have framed this point.

Second, they would contest

the idea that the common
First, they would contest the
feature of these different rests
idea that their personal view
on developing concepts of
can be placed within some of
legitimacy and accountability
the generic category that have
that derive from an abstraction
been set out.
from particular historical
contexts.

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This is a point that I think you need to be aware of about how theories and
ideas are presented and discussed in academic debate. On the other
hand, the stakes of this debate are very real in terms of the on-going
success or failure of the European project.

1. Utilitarianism

What then are the three

general perspectives
informing the legitimacy 2. Contractualism
and accountability
debate?

3. Contestation

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1. Utilitarianism

According to this approach, the conception of

legitimacy guiding questions of institutional
design must be based on what will be conducive
to the satisfaction of aggregate preferences.

In utilitarian theory, the relationship between

successful policy outcomes (preference
satisfying) and institutional design is however
somewhat opaque.

The classical utilitarians (J. S. Mill and Bentham)

attempted to resolve this problem through
devising frameworks of accountability means
of ensuring that officials were called to account
to public opinion (presumed to represent the
organized expression of aggregate individual
preference).
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2. Contractualism

A competing conception of legitimacy to utilitarianism is

that of contractualism.

Rather than looking to overall preference satisfaction,

contractualism seeks to put in place political structures that
protect each individuals ability to shape their lives in
accordance with their own preferences consistent with a respect
for a similar ability for others

This perspective is usefully represented by Tom Scanlon (see in

particular his book, What We Owe to Each Other (Harvard:
Belknap Press, 1998) although it should be noted that there are a
range of different accounts of this basic idea. Scanlon presents the
idea in such a way that it applies not only to political legitimacy but
to ethics in general.
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 According to Scanlon,..an act is
wrong if and only if any principle
that permitted it would be one that
could be reasonably rejected by
people (who were moved to find
principles for the general
regulation of behaviour that
others, similarly motivated, could
not reasonably reject) p.4 of
Scanlon ibid.
The contractualist approach to
legitimacy is to some extent better
able to frame fundamental
constitutional rules (both
substantive and procedural) that
can be deduced more
straightforwardly from the principle
of impartiality outlined above.
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From this perspective, the
institutional design of key political
processes needs to be done in
such a way as to promote
decision-making made in
accordance with this principle.
Arguably, contractualist ethics
inspire a number of key doctrines
concerned with the accountability
of EU institutions such as
fundamental rights and
proportionality.
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3. Contestation

According to this perspective, utilitarian

approaches to legitimacy are criticized for
masking difficult political decisions regarding the
weight to be allocated to different interests under
a neutral technocratic language of preference
aggregation.

Contractualist approaches also tend to be

criticized for assuming that a coherent set of
values related to political legitimacy can be
identified as forming the core of an impartially
constructed consensus.
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What is instead emphasized is that central to any political
activity is a plurality of values and interests. Legitimacy is, in
this context best understood as based on enabling contestation
of institutions and policies with a view to preventing the
dominance of a given interest or value.

Those who approach questions of legitimacy from this

perspective do not deny that utilitarian and contractualist
arguments and values are deployed to provide reasons for
preferred options, but these arguments and values are
secondary to the institutions and processes that enable political
contestation.

The contestatory approach to legitimacy tends to focus more on

the concept of accountability in which legitimacy is secured less
through mandating which purposes are served by political
agencies than by devising institutions and processes that hold
such agencies to account to those affected by their decisions
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 24.2 Accountability in the EU

24.2.1 Accountability and Legitimacy

Commentators and policy makers on the EU have

increasingly turned to attempting to frame the powers
exercised by the EU less in terms of an overall conception of
the legitimacy of the EU than in terms of a narrower concept
of accountability.

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The shift can perhaps be traced back to the crisis in the
legitimacy of the EU which has taken place over the last twenty-
five years. The beginning of the crisis lies in the difficulties
involved in the ratification of the Maastricht Treaty and has
continued in various forms since then.

The most striking symbol of the crisis in the legitimacy of the EU

was arguably the failure of the Constitutional Treaty.

Although ascertaining the nature of the crisis can be contested, it

is arguable that it marks a crisis in the utilitarian and
contractarian approaches to EU legitimacy.

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Thus, the Maastricht ratification crisis might be seen as a failure
of the utilitarian and technocratic approach to the legitimacy of
the EU.

The constitutional treaty might similarly be seen as a failure of

an approach grounded in a more contractarian approach to
legitimacy.

By the early 2000s, there was a shift away from seeking to

frame a solution to the problem of EU governance in terms of
an overarching concept of legitimacy and instead there
developed both in academic and policy making circles a greater
emphasis on the concept of accountability.
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Liz Fishers article provides a useful
contemporary diagnosis of this shift.

As Fisher has noted there has been a recent

increase of interest in trying to find a solution to
the problem of the legitimacy of the EU in terms
of systems of accountability.

She cites C. Harlow, Accountability in the

European Union and A. Arnull and D. Wincott
(eds), Accountability and Legitimacy in the
European Union (Oxford: Oxford University
Press, 2002) as examples.

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 As such the concept of
What characterizes the
accountability has become
accountability literature is
almost synonymous with
the emphasis on the breadth
these complex governance
of potential measures in the
processes themselves in
light of the shift away from
which a wide range of
traditional governmental
stakeholders affected by a
institutions to more complex
decision are allocated rights
systems of governance.-
to contest such decisions.

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For more on governance at large and within the context of
the European Union see C. Scott, Accountability in the
Regulatory State (2000) 27 Journal of Law and Society 38
and J. Scott and D. Trubek, Mind the Gap: Law and New
Approaches to Governance in the European Union (2002) 8
European Law Journal 1

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Eventually, a more constitutional vision of this version of
contestatory legitimacy and accountability was developed.

This emphasized not only the internal structures of the EU but

the way in which the EU interacted with the member states.

In this respect, what was highlighted was the way in which

certain national constitutional courts, like the German Supreme
Court, had developed a more questioning and sceptical
approach to accepting the claims of EU law.

The constitutional vision developed by these writers is termed

constitutional pluralism and is well exemplified by the article by
Nico Krisch on the reading list.

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 Overview of Political Accountability
24.3
Mechanisms in the EU

24.3.1 European Parliament

24.3.2 The European Ombudsman

24
 Overview of Political Accountability
10.3 Mechanisms in the EU

The EUs accountability mechanisms are wider than the judicial review
Article 263 and liability Article 340(2) provisions that we have examined so
far.

The nature of the political accountability mechanisms need to be assessed

not only in the light of a shift toward a contestatory understanding of
legitimacy but also because, connected with this move, it has also been
argued that extensive judicial review of law-making processes is
incompatible with our understanding of the value of democracy (see J.
Waldron, A Rights-Based Critique of Constitutional Rights (1993) 13 OJLS
18).

Such an argument would justify a restrictive approach to standing under

Article 263 and would emphasize instead the importance of political forms of
accountability. 25
 24.3.1 European Parliament

The European Parliaments role in ensuring the accountability of

EU Institutions and in particular the Commission has been
gradually strengthened.

The European Parliament has powers relating to the

appointment of members of the Commission under Article 17(7)
TEU. The European Parliament must approve the appointment
of the Commission President and then of the body of
Commissioners as a whole.

It also has powers relating to the dismissal of Commissioners by

passing a vote of censure which must be carried by a two thirds
majority (Article 234 TFEU). This sanction exists only in relation
to the whole body of Commissioners.
26
 Art. 193 EC (included in the
Treaty of Maastricht) established
the right of the European
In exercising this right, the
Parliament to establish a
Parliament launched a major and
temporary committee of inquiry to
high profile inquiry into the BSE
investigate alleged
saga since then, there have only
contraventions or
been a small number of inquiries
maladministration in the
instituted.
implementation of Community
law. These powers are now
contained in Article 256 TFEU.

There are powers in relation to

petitions which complements the
role of the Ombudsman in
affording aggrieved individuals a
low-cost means of making a
complaint (Article 227 TFEU)
A large number of petitions cluster
around environmental impact
assessments and recognition of
professional qualifications.

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 24.3.2 The European Ombudsman

This was an office created by the Treaty of Maastricht. Its

powers are set out in Article 288. It is elected by the Parliament.

The Ombudsmans task is to investigate complaints of

maladministration it is then left to the EO to develop a
definition of maladministration.

Essentially, the Ombudsman has expanded the range of

standards used to assess maladministration from a relatively
narrow and legalistic set to a wider range of good administration
standards.
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