Marzia Barbera

Nuovi processi deliberativi e principio di legalità nell'ordinamento europeo

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The article focuses on the two, and at first sight opposing, tendencies which are doing battle on the European scene. On the one hand an European constitutionalism which finds expression not only in the Charter of fundamental rights, but also in the political and scientific discourse that points to the deficit in democracy and rights characterising the European Union, and which should be remedied by replicating on a European scale the classic institutional order of constitutional democracies. On the other hand, a political action on the part of European institutions and a theoretical discussion on the integration process which propose a form of multilevel governance with characteristics that are quite different from the classic community method. The concept of multi-level governance appears to respond to current problems of legal regulation by proposing a method of political decision-making which differs from the traditional legislative methods and which leaves room for non-binding rules and for a conception of regulation overcoming the distinction between creation and application of law in favour of a dynamic process of adapting rules to problems and situations as they emerge. The Open Method of Co-ordination (Omc), a method of decision-making through which to exercise the new powers attributed to the Community on employment policies by Title VIII of the Ec Treaty, is at the moment the most discussed example of multilevel governance at the Eu level. After examining the main features of the Omc and the possibility of reconciling the two processes of constitutionalisation and dissemination of the Omc being experienced in European integration, the article argues that, as a legal decision is formed in the Omc, this decision, by virtue of the application of the rule of law, is subject to the limits of formal and substantive legitimation envisaged by the Community legal order and that monitoring the compliance of these limits is the prerogative of the Courts.

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