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8 Eur. L.J. 1 (2002)

handle is hein.journals/eurlj8 and id is 1 raw text is: 


European Law Journal, Vol. 8, No. 1, March 2002, pp. 1-18.
( Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JK, UK
and 350 Main Street, Malden, MA 02148, USA



  Mind the Gap: Law and New Approaches

     to   Governance in the European Union


              Joanne Scott* and David M. Trubek**





I  Introduction
This issue of the European Law Journal deals with the emergence of a series of new
approaches to governance in the European Union. These issues were discussed at a
workshop  on  'Law  and New   Approaches  to Governance  in Europe'  which we
organised. The workshop  was held in Madison,  Wisconsin in May  2001 and  was
co-sponsored by the European Union Center of the University of Wisconsin-Madison
and the ELJ. Seven of the participants in that workshop developed papers that deal
with one or more dimension of the new governance phenomenon. In this introduction,
we seek to define the concept of new governance, suggest reasons for its emergence,
assess the reaction of the European Court and Commission to these developments,
and identify some of the conceptual issues this phenomenon presents for legal and
political theory.


II  What  Mechanisms   Should  be Considered 'New  Governance'
A   A  Baseline for comparison-the  'Classic' Community  Method
In order to understand new  governance, we must  have a baseline from which to
depart. For our purposes, we will define new governance as any major departure from
the classic 'Community Method' (CCM).  The  notion of the Community  Method  is
highlighted by the Commission in its recent White Paper on Governance.' It is, the
Commission  tells us, premised upon the Commission's exclusive right of legislative
initiative, and the legislative (and budgetary) powers of the Council of Ministers and
the European Parliament. Qualified majority voting is identified by the Commission as
an essential element in ensuring the effectiveness of this method, and the European
Court as central in guaranteeing respect for the rule of law. On this basis Article 251
EC  laying down the co-decision procedure might be seen as constituting an embodi-
ment of the CCM. Alongside the issue of the identity of institutional players, and that
of voting procedures  in Council, additional features might be cited as closely

*Clare College, Trinity Lane, Cambridge CB2 ITL, UK. E-mail: js359@cam.ac.uk
**Law School, University of Wisconsin-Madison, 975 Bascom Mall, Madison WI 53706, USA. E-mail:
  dmtrubek@facstaff.wisc.edu. We would like to thank the Madison workshop participants for their
  very useful oral and written comments. We gratefully acknowledge the support of the European
  Union Center, University of Wisconsin-Madison.
  I COM(2001) 428 final, European Governance A White Paper, p. 8.

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