The Legitimacy of The European Union through Legal Rationality

Free Movement of Third Country Nationals

Richard Ball

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136011603
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Third country nationals (TCNs) play an important part in the economy of the European Union, reflected in the rights granted to them under European Union Law. Political expediency is however shaped by world, regional and domestic influences that in turn determine policy towards third country nationals and their legal rights to freedom of movement.

This book examines the concept of political legitimacy within the European Union through the principles of legal rationality, focusing in particular on the European Union's policy towards third country nationals. Richard Ball argues that for legal doctrine to be rational it must display the requirements of formal, instrumental and substantive rationality, each mutually exclusive and essential.

In taking this position of legal rationality, the book focuses on free movement rights of TCNs within EU treaties and implementing legislation, the Area of Freedom Security and Justice, and Association Agreements. Ball concludes that the stance of European Union Law towards third country nationals lacks legitimacy, and suggests possible new directions that EU policy should take in the future.

1 Introduction

The concept of political legitimacy within the European Union (EU) has gained considerable attention¹ since Weiler discussed it in his seminal article.² However, ‘there are many ways to cut the conceptual cake of legitimacy in the European Union’³ and so its meaning remains elusive,⁴ compounded by a lack of structure to enable an analysis to be conducted⁵ and with different approaches tending to be adopted by different doctrinal disciplines (political science targeting political power relationships⁶ and law pursuing the law-making process⁷ and its institutional structure⁸).

The traditional view of legitimacy within a democracy is based on popular sovereignty⁹ where the consent of the governed is required to establish or disestablish governments and the power to govern is limited by delegation from the people.¹⁰ As Yack points out, this is very much state based as the governed or ‘the people’ must constitute all of the people of the territory over which that government has power.¹¹ This then reinforces the notion of the state as the fundamental political institution within the international and global community.

It is an obvious statement to make that the EU is not a state¹² and, as Føllesdal illustrates, legitimacy for the EU is far more complex than the model described above.¹³ The most well known model of complex legitimacy is that of Scharpf,¹⁴ who has suggested that legitimacy has two aspects with different roles: input-orientated legitimacy (input legitimacy);¹⁵ and output-orientated legitimacy (output legitimacy).¹⁶ Other observers have suggested alternative theories of legitimacy but once they are analysed the theories can be broken down into Scharpf’s legitimacy criteria and other non-legitimacy elements. A classic example of this is the model of Beetham and Lord,¹⁷ who suggest that for a state to be legitimate it must demonstrate the necessary identity, democracy and performance¹⁸ in meeting the needs and values of citizens, which they then transpose to the model of the EU. The second and third criteria can be equated to input and output legitimacy whilst identity itself is a much contested concept that can be viewed from an individualistic perspective (how a person views his or her own position in society) or from a community perspective (how society determines who belongs and who does not). Instead of being an element of legitimacy it determines the construction of the political community not its legitimacy.

Input-orientated legitimacy requires a clear accountability of political action to the citizens of the polity or, as Bellamy and Castiglione state: ‘the normatively conditioned and voluntary acceptance by the ruled of the government of their rulers’.¹⁹ This definition is close to that of the concept of popular sovereignty and, although Dahl suggests that it is impossible to provide a definition for democracy as the term is used in many different ways,²⁰ it also corresponds to a definition of democracy provided by Schmitter²¹ and Schumpeter.²² As such input legitimacy can be equated to democratic legitimacy and this has elicited considerable attention from EU commentators over the years, especially over the perception of the lack of democratic accountability of EU institutions and decision-making to the peoples of Europe.²³ Since the coining of the term ‘democratic deficit’ in 1979,²⁴ each treaty amendment has triggered another outbreak of academic writing on the existence of this democratic deficit and the failure to resolve it.²⁵ Menon and Weatherill²⁶ point out that many of these observers judge the limitations of the EU against a strict nation-state model and this model can change depending on which nation-state is chosen as the blueprint. Attempting to theorise the EU through a nation-state lens fails to take into account the supranational nature of the majority of the decision-making conducted by the EU’s institutions, let alone the intergovernmentalism that remains a feature of the EU even after the Lisbon Treaty. The reality is that Europe is made up of many peoples rather than a single people, so that without ‘the people’ there can be no demos and, ‘if there is no demos, there can be no democracy’²⁷ with few mechanisms to promote a demos such as a common language, centrally organised political parties,²⁸ harmonised education policies or a European rather than national mass media. As input legitimacy relies on public support²⁹ or ‘public control with political equality’,³⁰ then the lack of demos, and thus lack of EU statehood,³¹ creates significant hurdles to democratic accountability.³²

However, as again noted by Menon and Weatherill,³³ this lack of democratic accountability or input-legitimacy should not create a ‘counsel of despair’ over the legitimacy of the EU as it opens up the possibility of alternative routes to establish the EU’s legitimacy.

This alternative route can be discovered in Scharpf’s concept of output-orientated legitimisation (henceforth output legitimacy). Here the determination of the legitimacy of the EU is perceived through reference to its output and Majone suggests that, as the Union is a ‘regulatory State’, then that regulation is the route to measuring legitimacy.³⁴ Much of the commentary on output legitimacy has focused on the economic side of the EU and in particular the internal market,³⁵ equating legitimacy with efficiency that has provided observers with considerable flexibility but without structure or a model for determining the legitimacy of the EU. The key then to analysing the legitimacy of the EU is to provide a model through which the EU’s outputs can be evaluated. Once that model has been formulated then it can be applied to areas of regulatory output either on a micro or macro level.

The policy area to be examined through the lens of this model is the free movement rights of third country nationals (TCNs). Those ruled in Bellamy and Castiglione’s definition,³⁶ when considered in the context of the EU, include all the peoples resident in the EU. These are made up of citizens of the EU³⁷ and TCNs. The position of the individual has been enhanced with the creation of citizenship of the Union and the rights that are correspondingly granted especially for free movement. Citizens of the EU are able to determine the extent of their rights to freedom of movement in a relatively logical and straightforward manner as the principle of free movement of persons was enshrined in the EC Treaty as one of the four fundamental freedoms. The Union, however, is not populated only by EU citizens, with an estimated 12.5 million³⁸ TCNs legally resident in the Union in 1997 that had increased to 16.2 million³⁹ by 2003 and approximately 20.1 million by 2010.⁴⁰ These TCNs do not form a homogenous group as their population is made up of peoples with many different national identities spread throughout the EU. As such, the citizens of this so-called 28th state⁴¹ are a disparate group culturally, socially and economically, with the majority emanating from developing countries. However, from the sheer weight of numbers, it can be considered that TCNs have an important effect on, and play an important part in, the economy of the Union. They work, provide services, purchase goods, pay taxes and in general participate fully in the Europe-wide economy.⁴² Demographic trends indicate that the steady population growth in developing countries is paralleled by falling birth rates in Western Europe.⁴³ This demographic pattern suggests that to ensure economic growth is sustained by the necessary workforce in the medium to long term, an increasing level of migration from third countries into the EU will be required.⁴⁴ Therefore, the TCN population in the EU is likely to increase in real and proportional terms as it increases in importance economically.⁴⁵ With this growing importance of TCNs to the EU it would be reasonable to assume that their free movement rights⁴⁶ would be clearly defined, readily accessible and simple. This is not the case.⁴⁷ Moreover, the extent of such rights has altered over time, as has their political perception by the Member States, with certain TCNs receiving more favoured status than others as the political momentum swings.

1.1 Structure of the book

Chapter 2 constructs the measurable benchmark, that of legal rationality, through which the free movement rights of TCNs will be analysed. Politics is concerned with power,⁴⁸ the capacity of social agents to maintain or transform their social environment and the creation of a regulated order for managing human conflict and interaction. Law can be considered to be ‘the enterprise of subjecting human conduct to the governance of rules’⁴⁹ or ‘the human attempt to establish social order as a way of regulating and managing human conflict’.⁵⁰ As such, law deals with human action and human social action, is the method used to enact the rules required to regulate this human social action and is the final outcome of the political process. From these definitions politics and law are inevitably intertwined with the laws and rules of the polity providing the positive evidence of the policy stance of the polity. Therefore, to assess the political legitimacy of the outputs of the EU the laws and rules of the polity as the final embodiment of its policy must be analysed. It is the legal rationality model that provides the criteria for scrutiny of the law consisting of three elements, each mutually exclusive and essential: formal; instrumental; and substantive rationality. Formal rationality requires legal doctrine to be free from contradiction and for rules to be the same for everyone; instrumental rationality requires these rules and legal doctrine to be action guiding whilst substantive rationality necessitates the norms underlying legal doctrine to be justified. They are mutually exclusive as they are comprised of different factors and have different ends, namely the avoidance of conflict between laws, guidance for action and the justification for such action. They are essential as the failure of a desideratum of rationality leads to a conclusion that the law is defective. Legal rat...