Projects in EU Law

More information: Päivi Leino-Sandberg, Professor of International and European Law
Academy of Finland Research Fellow
Visiting fellow, EUI Law Department

The necessary evil – On law, power and institutional politics in the European Union

(funded by the Academy of Finland, funding period 01.09.2015 - 30.08.2020.)

This is project is both on law and about law. ‘Law’ is linked to the legitimacy of the EU. It appeals
to those wishing to limit power politics, integrationist ambitions and institutional discretion. But the
way in which law is used also renders it an instrument in political contestation. It is traditional for lawyers to find politics a ‘necessary evil’: somewhat obstructive, perhaps even dangerous, but
difficult to avoid. My concern, however, is not about politics intervening in the sphere of law. My
interest relates to the way in which the EU decision-making process operates, and what factors and
players influence decision-making. In particular, I examine how the balance between legal
arguments and other considerations is drawn.

The Treaties establish only part the main building blocks of the decision-making process. Real life
decision-making is multidimensional. It builds to a large extent on practice and interinstitutional
agreements. These more informal arrangements are linked to the way in which ‘the EU institutions
make conscious decisions about whether to be bound in their interactions by informal institutional
rules or follow the normal constitutional paths prescribed by the Treaty.’ This decision-making
framework can only be examined with an interdisciplinary approach. The roles allocated to law and
politics are linked with questions of participation, accountability and democratic decision making (see below).

Transparency in the EU- From Reaction to Manifesto?

(funded by the Academy of Finland, funding period 01.09.2017 - 31.08.2021), TrUE

The EU Treaties create a clear presumption for transparency and access to information which is
assumed to lead to increased citizen participation. In reality, opposition seems to exist. The project
aims to break down the practices assigned to ‘transparency’, in particular in regard to ‘participation’
and ‘efficiency’ in the EU. It will critically investigate the promise invested in transparency both on
theoretical (what does the nexus between transparency and participation imply?) and practical level
(does it work as it should? Is it changing?). This main objective is tackled from four different
directions.

1) What Does the EU Think Transparency is? The project will investigate on how the
EU institutions understand the role of transparency in legitimate governance. How does
it relate to the globalized narrative of good governance? How did it change from reaction
to a manifesto? How are transparency and participation linked with the institutional
politics of decision-making and political accountability? Does the democratic deficit of
the EU affect domestic constitutional arrangements of transparency and democracy?

2) Does Transparency Undermine Efficiency? What does the EU promise? Are there
double standards in regard to transparency? The project will undertake a systematic legal
analysis and critique of a range of arguments, constructions and doctrines that the EU
institutions may resort to when seeking to justify limitations to the rights of access. What
do the current accountability mechanisms deliver?

3) What is the Meaning of Legality? To what extent is transparency a legal concept? The
project will investigate the question of ‘hard’ and ‘soft’ law. Boosted by the 2001
Commission White Paper on Governance and the 2010 Lisbon Strategy, ‘soft law’ is
present in nearly every EU policy. Whilst the principles of openness and transparency
also apply to informal instruments (such as guidelines, comments and notices), their
meaning in creating transparency as well as being subject to it remains elusive.

4) Do Transparency Practices Work? Does access to documents exist in practice? The
project proposes an empirical approach to the questions relating to democratic decisionmaking
in the EU. So called action research relies on a continuous interaction with EU
institutions agencies and NGOs with the aim of influencing their practices in a positive
manner. This approach is also adopted to enrich the societal
impact of legal scholarship.

Through its comprehensive makeup, the project contributes to operationalising and strengthening
the fundamental objectives of the Lisbon Treaty as it attempts to make decision-making in the EU
“as open as possible”. The project will challenge the current understanding of the limits of the
‘possible’. 11 In other words, the project engages into the immanent critique of the EU and its
mission. By doing so, it attempts to increase its institutional self-understanding and
comprehensibility to the citizens.

 

Team members:

Professor Päivi Leino-Sandberg approaches the questions of participation and transparency by
examining them as institutional politics. She juxtaposes the formal rules of decision-making with
the practices of all three institutions involved in the EU legislative procedure – the Council, the
European Parliament and the Commission – and evaluates the extent to which citizens have the
possibility to follow and influence legislative choices. She demonstrates that the formal rules of
law-making are complemented by numerous informal practices, which weaken the possibilities of
participation and emphasise the virtues of efficiency over other values. Her research aims to deepen
the understanding of the power relations in the EU by combining the methods of critical legal
studies and political science.

Vesa Heikkinen’s doctoral research theme is “The Emptiness of Transparency – Citizen and
Government in the Information Society”. It is based on two-pronged approach: first, it will critically
examine the intellectual roots of the current transparency discourse. Second, it will focus on the
changes which information society poses on the ideal of transparency and how those changes will
further affect the possibilities for citizen participation.

Professor Ida Koivisto concentrates on the conceptual legitimacy attributions in EU governance. The current vocabulary of legitimacy in the EU seems to revolve around certain theoretical presumptions. For instance, it is uncritically assumed that transparency undercuts efficiency. Neither is it clear that efficiency goes counter democracy, or that more transparency would necessarily lead to more democracy. These attributions, are first, oftentimes rather assumed than argued, and second, leave much leeway for interpretation while shying away from making any ideological claims. Although this discourse is familiar to the extent that it seems self-evident, all of the mentioned concepts are highly contested and subject to different, equally justifiable views. The research aims at diagnosing these links on the level of theory. How are the merits and the
exceptions to transparency argued? Among other things, this approach will deepen the analysis of
the PI and prof Curtain relating to the transparency of trilogues and informal law-making in the EU. The hypothesis is that the legal-technical translation of the array of the mentioned values does not manage to fulfil the promise of the overall legitimating narrative, but creates ongoing internal
contradictions and clashes.

https://tuhat.helsinki.fi/portal/fi/persons/ida-koivisto(cd12ce79-a24e-4ddd-b6f4-a35e3698c574).html

Liisa Leppävirta’s doctoral research examines the institutional practices and attitudes concerning
access to documents in the EU by invoking methods used in law and political science. She
combines an empirical approach with the more traditional legal dogmatic method by analyzing the
legal argumentation of the institutions in access to documents cases and demonstrates how deeply
political and legal arguments are intertwined in the prima facie legal argumentation of the EU
institutions. The preliminary findings of her doctoral research demonstrate a need to deepen the
argumentation analysis by extending the analysis to selected Member States and their interrelation
with the EU institutions, building on the theoretical frame established in Dr Koivisto’s research.

https://tuhat.helsinki.fi/portal/fi/persons/liisa-leppavirta(66386766-e0cc-407a-b7f4-313b2d76e1f4).html

Dr. Päivi Neuvonen’s contribution to the TrUE project will examine the direct and indirect effects of transparency on political and legal subjectivity in a transnational context. The aim of this research is to both evaluate and justify different transnational participatory mechanisms through their effects on the constitution of EU citizens’ political subjectivity and agency, including the question of how transparency shapes the dynamics between private individuals and EU institutions. This research is linked with her earlier work on EU citizenship and it also has synergies with her post-doctoral project ‘European Law and the Politics of (Dis)Empowerment’ at the University of Helsinki (funded by the Academy of Finland 2017 – 2020).

http://www.paivijohannaneuvonen.com/

The team collaborates with Dr Emilia Korkea-aho (LL.D.), who is Academy of Finland
Research Fellow at the University of Helsinki. She has published on law and new modes of
governance and EU soft law. Dr Korkea-aho is currently working on a study containing both legal
and empirical analyses of the lobbyists’ role in the EU’s legislative and the administrative
processes. The influence of lobbyists on legislative choices also forms a part of the PI’s research
project, and she and Korkea-aho will co-author an article on lobbying in the legislative procedure,
which will contribute to the results of the current project. Dr Korkea-aho also leads the EU-funded
“European Network on Soft Law Research” (SoLaR). This three-year project (2016–2019) brings
together over 30 scholars to evaluate the reception and impact of EU soft law in selected Member
States.

https://tuhat.helsinki.fi/portal/fi/persons/emilia-korkeaaho(5a207e22-daa1-47f6-bcdd-ab0902c2e237).html

Other Projects