18 Dec 2009

European Executive Government: The 'Most Dangerous Branch'?

In his recently uploaded paper on SSRN titled 'Accumulated executive power in Europe: The ‘most dangerous’ branch of government in the European Union", Professor Deidre M Curtin (Professor of European Law, University of Amsterdam and Professor of International and European Governance, University of Utrecht) has nominated the Executive Branch of the European Union as the 'Most Dangerous Branch', given the host of powers accumulated in this wing of State-polity and the lack of accountability thereon. 

The abstract to the paper notes that "the executive branch of government in Europe in being gradually transformed in several significant respects. This phenomenon in placed in its historical perspective; at the same time it is recognised that something specific is going on in the political system of the EU with the almost continuous expansion of executive power in that context. At the same time this development is not always visible nor is it subject to an overall system of checks and balances. The layered and accumulated nature of the executive power being exercised in and around the EU complicates the discussion on accountability. The crucial challenge is to ensure that overall the growing executive power is subject to a cumulative system of checks and balances."

Taking note of various historical and comparative factors, the author has concluded inter-alia as under;

The scope and nature of executive power in a given political system remains difficult to define in substantive terms. This may have something to do with the fact that the executive power is rarely fixed and determinate but evolves over time, shaped by social and political circumstances as well as the letter of a constitution. One thing that does seem inherent in executive power is its tendency towards expansion. It seems that nowadays it is the executive branch that may be ‘everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.’ At the same time the executive power can be considered in structural terms ‘in shadow'. In the political system of the EU this may be aggravated by the fact that the legislative and executive functions are so mixed together, more so than in the political systems of the constituent Member States where the legislative power will basically be exercised by a directly elected parliament (with input into the system by the executive power in terms of an often non exclusive power of legislative initiative).
The executive branch of government can arguably be considered today as ‘the most dangerous branch’ compared to the other two, the legislative and judicial branches particularly in the context of externalization and Europeanization. It can be argued that considerable emasculation has taken place in practice of the legislative branch in particular, despite the fact that with incremental Treaty revision processes, the European Parliament has acquired more powers of formal ‘co-decision’ over a wider range of policy areas. Since 9/11 in particular we have seen both in the United States and in Europe the consolidation of an executive power that subsumes much of the tripartite structure of government. ...
The problem that I have sought to highlight is that political actors may adopt decisions at one level with no forum able to hold them to account for their action, either politically as in a parliament or election procedure or legally as in a court. That gap in accountability may infiltrate other levels of governance such as the European level and subsequently the national level. This raises sensitive questions about which actors should be held to account: holding governments to account may no longer be enough and will need to be complemented with mechanisms and forums that focus both on the accountability of supranational executive bodies as well as national agencies and agents with dual loyalties (national and European). The crucial challenge in coming years is how these various levels can be better related and interconnected with one another in a perspective inspired by the need to ensure that growing executive power is subject overall to a cumulative system of checks and balances. ...

The paper provides an insightful reading on the way in which various European institutions are placed and the manner of their working in which they yield power. Historical changes (to note the gradual power-accumulation) are also documented. 

One can access the full paper at this SSRN link.

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