Opposition in the EU Multi-Level Polity

Legal Mobilization against the Data Retention Directive

Stefan Thierse, Sanja Badanjak

• Publisher: Palgrave Pivot
• Year: 2020
• Print ISBN:
  9783030471613
• eBook ISBN:
  9783030471620
• Topic: Politics & International Relations
• Subtopic: European Politics
• Index: Politics & International Relations

This book challenges the conventional wisdom that the European Union (EU) is an example of governance without opposition. Building on a concept of opposition that honors both the institutional features of the EU polity and the fundamental functions of political opposition, it argues that legal mobilization and litigation before constitutional courts provides actors and organizations from civil society with an opportunity to challenge and overturn policy decisions that originate at the EU level. Further, it presents case studies of constitutional challenges to the implementation of the EU Data Retention Directive in four Member States (Austria, the Czech Republic, Germany and Ireland) to illustrate the motivations for, as well as the preconditions and pitfalls of, mobilizing constitutional law. By connecting the literature on social movements, law and politics and comparative government, this book will appeal to readers interested in political science, sociology and legal studies.   

© The Author(s) 2021

S. Thierse, S. BadanjakOpposition in the EU Multi-Level Polity https://doi.org/10.1007/978-3-030-47162-0_1

Begin Abstract

1. Introduction

Stefan Thierse¹ and Sanja Badanjak²

(1)

Institute of European Studies, University of Bremen, Bremen, Germany

(2)

Edinburgh Law School, University of Edinburgh, Edinburgh, UK

Stefan Thierse (Corresponding author)

Email: [email protected]

Sanja Badanjak

Email: [email protected]

Abstract

This introductory chapter presents the main argument and outline of the book. Our main point of contention is the common depiction of the EU as a political system bereft of an organized, institutionalized opposition. We argue that the multi-level setting of the EU requires a contextually adequate concept and a careful consideration of alternative sites at which opposition comes to bear on the political process. We extend recent contributions to reinvigorating research on opposition by linking research on social movements and legal mobilization. In particular, we consider a specific venue appropriate to serve oppositional objectives: Member State constitutional courts.

Keywords

OppositionMulti-level polityLegal mobilizationSocial movementsConstitutional courts

End Abstract

The European Union (EU) has been qualified as a case of “governance without opposition” (Neunreither, 1998). This verdict can hardly be disputed if we apply the benchmark of a parliamentary democracy. The EU system of government does not feature a central government that is formed and continuously supported by a majority in the European Parliament (EP). Even though elections to the EP have become more important in determining the leadership of the European Commission, which is part of the EU’s executive branch, the EU is far from a parliamentary system of government characterized by a clear-cut government-opposition dualism (Decker & Sonnicksen, 2011). At the same time, and somewhat paradoxically, there is agreement that the EU, despite the absence of a structured parliamentary opposition, offers abundant opportunities for political opposition (Helms, 2008; Mair, 2007). Although not a state, the EU is a political system which makes collectively binding decisions in an ever-growing number of policy fields. Opposition can thus be directed both at the EU polity in the sense of fundamental or anti-system opposition, or against the policies which originate at the EU level. According to conventional wisdom, the predominance of opposition against the EU political system is a direct result of the lack of means to organize and exercise opposition within the system, directed against specific policy decisions. As Peter Mair (2007, p. 7) has noted,

we emphatically lack the right to organize opposition within the system. We lack the capacity to do so, and, above all, we lack an arena in which to do it. Once we cannot organize opposition in the EU, we are then almost forced to organize opposition to the EU. To be critical of the policies promulgated by Brussels is therefore to be critical of the polity; to object to the process is therefore to object to the product.

It is from this vantage point that a considerable part of the extant literature has equated the “politics of opposition” with Euroscepticism and populism (Sitter, 2001; Szczerbiak & Taggart, 2008; Van Biezen & Wallace, 2013). More recent contributions share with the Euroscepticism literature the bias towards parties as privileged agents of political opposition (Franzmann, 2019; Garritzmann, 2017). In turn, research putting social movements and interest groups center-stage has by and large ignored the opposition concept, operating instead with categories such as contentious politics, political conflict, protest, or outside lobbying, to name just a few. However, a few studies have sought to bridge the gap between institutionalized and non-institutionalized politics under the rubric of opposition, advancing the notion of opposition as multiple, shifting alliances between parties in parliament and extra-parliamentary actors such as social movements and interest groups (Brack & Weinblum, 2011; Crespy & Parks, 2017).¹ While these works are meritorious for emancipating the concept of opposition from its reduction to parliamentary minorities aspiring to government alternation and do stress the plurality of opposition as ever new configurations of actors that policy decisions, they fail to consider a key site of action where opposition becomes visible in organizational terms and can achieve impact on public policy: constitutional courts.

In this book, we build on the premise that in order to pin down and understand opposition in the EU multi-level polity, we need to turn to alternative venues where political conflict is resolved and policy decisions become subject to deliberation and scrutiny, and alternative agents that perform essential functions of any political opposition: exercise control, voice public criticism and present alternatives. As regards alternative sites of opposition, we propose that constitutional and high courts in the EU Member States offer an opportunity structure that allows for a continuation of the political process in the legal sphere. As for alternative agents, we focus on social movements and public interest groups. This book extends recent advances in research on opposition in the EU by considering the ways in which constitutional challenges initiated by social movement organizations (SMOs) and public interest groups contribute to forming alliances between citizens, movements and parties and imposing constraints on the exercise of political power by governments. The questions guiding our research are: Why do public interest groups and social movement organizations take recourse to constitutional litigation? Under what circumstances can constitutional complaints, which are an individual extraordinary legal remedy, be transformed into an instrument of collective action and mobilization?

In addressing these questions, we integrate several strands of literature to develop a concept of political opposition that is appropriate to the context of the EU as a multi-level polity characterized by fragmentation and separation of political power. First, our research connects to comparative constitutional law and politics. As political scientists, we remain attached to a perspective of “constitutional courts and law as a form of politics by other means” (Hirschl, 2009, p. 825) that harks back to the works of scholars such as Martin Shapiro (1963) or Robert Dahl (1968 [1966]). For several reasons, the focus on (constitutional) courts is a promising venue to explore opposition in the EU: To begin with, courts are veto players by virtue of their competence to assess the conformity of acts by the executive and legislative branches with constitutional principles (constitutional review) and the power to revoke acts that violate constitutional law. Furthermore, constitutional review can be activated not only by political actors, but also by private citizens. Although constitutional complaints are not available in all EU Member States (see Chapter 4) and while the instrument is subject to a number of prerequisites and qualifications, it is nevertheless an important opportunity that expands the range of actors that can invoke constitutional principles to put a check on the exercise of political power. Finally, national constitutional courts are linked to the Court of Justice of the European Union (CJEU) in a European network that also includes the European Court of Human Rights (ECtHR).² This network builds on mutual cooperation between the courts and, analogous to the concept of multi-level governance, escapes conventional state-centric categories of supremacy and subordination (Voßkuhle, 2009, p. 8). Within this network, preliminary references, a catalyst of the EU legal order originally employed primarily by lower courts, are used increasingly also by national constitutional courts when adjudicating on matters that touch on both constitutional and EU law. While individuals face formidable obstacles in gaining legal standing before the CJEU, the sole body competent to invalidate acts of the EU for violation of EU law and fundamental rights, preliminary references by constitutional courts open up an alternative channel for individuals seeking to activate judicial review...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• 2. The Never-Ending Story of Data Retention in the EU
• 3. Conceptualizing Opposition in the EU Multi-Level Polity
• 4. Constitutional Review as Political and Legal Opportunity Structure
• 5. Legal Mobilization as an Oppositional Strategy: From Individual Activation to Collective Action
• 6. Legal Mobilization Against the Data Retention Directive—Opportunity Structures, Actors and Strategies
• 7. Opposition in the Multi-Level Polity: Prospects and Implications
• Back Matter