Good Governance in the EU

• Author: Gina Livioara Goga, PhD in progress
• Position: Assistant Professor. "Danubius" University of Galati
• Pages: 1-7

Page 1

More than 170 years ago, governance was defined as being: ¹

- "The exertion of the most significant form of power over a community";

- A synonym for the form of government or the Constitution, meaning that it was presented as "the frame or the disposition of power and authority among the members of a community", respectively "a free government, a monarchic government or a republican government";

- The individual or the group of individuals who has authority or a certain part of it.

The term "good governance" was conceived by Rudolf Weitholter" in a polemic regarding the implementation of official provisions, by applying the classical legislation of private law" which is very often used in the transnational governance.²

Today, the term "governance" relates to the political and administrative processes, such as institutions, without comprising the policies or the results.³

Some authors⁴ have wondered if this concept is a fashion and its appearance in the public scope does nothing more than reveal older principles and ideas, regarding "the citizens' expectations from the politicians', the authorities and the public administration institutions' behavior".

New governance was received as "a shift in the traditional paradigm of regulating and enactment" that involved differentPage 2aspects:⁵

- Passing form hierarchic forms to heter-hierarchic forms of law and policy formulation;

- Passing towards more flexible forms of law (less constraining or un constraining) and less detailed;

- A new approach towards more reflexive forms of law (auto modification and classification).

The fact is that the appearance of the new term necessitated a demarcation, at least for a certain part of the political class that did not understand that the terms "government" and "governance" are not the same thing. Thus, the term "governance" compared with the term "government" represents:⁶

- A decline in the centrality of national and territorial boundaries and relevant in the transnational context, as well as in other levels;

- Decentralization and dispersion of authority;

- The confusing difference between public and private (involvement of private/social actors as well as the public/official actors).

J.T. Scott and D. Trubeck distinguish the "new forms of action" as being "the new and the old governance" and "open methods of coordination". They identify as characteristics of the "new governance" the following:

- The participation and division of power;

- The integration at different levels;

- The diversity and decentralization;

- The deliberation;

- The flexibility and the possibility to review;

- Experimenting and creating information or knowledge.⁷

Considering the EU Adhesion, good governance has been analyzed from multiple perspectives, in the judicial literature being analyzed as an analytical model or as a normative concept.

According to some authors, the reasons on which the appearance of new governance methods in the EU is based derive from the complexity and the uncertainty of the problems on the agenda, the new approaches in law and public administration⁸ , hidden competencies, legitimacy and subsidiarity.⁹

The Weberian hierarchic types of governance within the European states have been replaced by suitable types of governance for the new democracies that are strongly industrialized. The relevance between public sector and the organizations of the private sector have changed, without diminishing the role of the government, as being the central element in delivering the governance. The new elements brought by the new governance at a state level was the fact that the governments "are no longer dedicated to creating and implementing all the policies, but they use a variety ofPage 3instruments and different institutions in order to attain the political objectives".¹⁰ What is interesting is the fact that this new form¹¹ of approach can be more efficient as long as it leads to "a revitalization of the practices of exerting the constitutional democratic power in the lawful state".¹²

Representative in reinventing governance are the Americans David Osborne and Ted Gaebler who, in 1993, have published "Reinventing governance: how the entrepreneurial spirit transform the public sector" which is considered, by the Business Week, to be "the gospel of good governance". By indicating that privatization is sometimes recommended as being efficient, the authors showed that governance should not be run as a business, as "the democracy would be its first victim".¹³

The EU was presented as being a "multilevel system of governance". The policies formulation is divided among the sub national, national supra national level. The person that named this phenomenon as being a multi-governance model was Gary Marks¹⁴ who indicated that the state is not the one that holds the monopole in "creating the EU policies or aggregate the internal interests and a new form of government is being shaped".

The assertion belonging to Jacques Delors, according to which the EU represents an unidentified political object, is correct. In fact the EU is not a state, neither an international organization nor a confederation, but a unique construction that combines intergovernmental features with supra national ones. For example, "the recent growth in the number of agencies within the EU does not represent a shift towards a federal executive system¹⁵ within the EU but indicates the features of administration interactions in multiple levels" and the term "integrated administration" describes "the realities of the EU structures in administrative governance" in a frame in which the national organs and the supra national ones are related, in order to accomplish the tasks received from the EU".¹⁶

At the EU level, the new types of governance have promoted "the change through persuasion, monitoring and mutual learning, rather than hierarchy, order of sanction" which generated a certain preoccupation towards their efficiency and the responsibility. They strongly contrasted with the classical community methods that involve the fact that the legislative initiative belongs to the Commission and the decisional right belongs to the Council and the Parliament.¹⁷

Given the judicial nature of the EU, that it doesn't represent a state, context in which we can talk about the division of power, is not a federation so that we can speak of a constitution that regulates the relations regarding power in a federation, we ask the obvious question: what is the document that regulates the principles of good governance at the EU level?

According to some authors¹⁸ even if the EU does not represent a state "in the true meaning of the word it does not meanPage 4that certain constitutional principles cannot be applied to it". In this context, there have been some debates in the literature, regarding the principles of good governance regulated by the European Commission in the White Paper, as it is not sufficient that these principles of good governance to be regulated as being abstract values in a certain document, but they "should be shaped in a well defined constitutional frame" so that the structure (regulation at a constitutional level¹⁹) precedes the values and not the other way around. As the EU Treaty underlines the fact that the principles on which the EU is based are found in all the member states, we have to admit the fact that in virtue of this parallelism the interpretation of these principles will be made according to the constitutional common traditions ²⁰ of the member states.²¹

The European Commission has arrogated the right²² in virtue of the rights offered by treaties, but reasserted in this document as well, to attain these objectives, together with sustaining the other European institutions, member states, present and future, central...