Events – Institutional Independence
“Non-majoritarian institutions: credibility, efficacy, embeddedness”
by Yane Svetiev, Max Weber Fellow 2010-2011
The Max Weber Programme hosted an interdisciplinary workshop exploring the theme of Institutional Independence. The workshop, which was organised by members of the Law Academic Practice Group of the MWP and was supported by the Global Governance Programme at the RSCAS, sought to revisit the question of non-majoritarian institutions. Such institutions have been proliferating beyond the more traditional setting of independent courts, to central banks, other regulatory agencies, as well as supranational and academic research bodies. While the issue has been salient in the EU context for some time, one special point of interest was to explore the extent and robustness of institutionalisation in other regional integration contexts.
In his keynote remarks, one of the preeminent scholars of this issue at the EU, and a former member of the EUI faculty, Professor Giandomenico Majone, acknowledged that no satisfactory theoretical resolution of the legitimacy/efficacy problem for non-majoritarian institutions has been offered thus far. In seeking to offer a way forward, particularly in the case of supranational institutions, he offered two related observations. The first was the recognition of the need for non-majoritarian institutions to be embedded in the social and political context in which they operate. Second, for that to be achievable, we have to be cognizant of the limits in the process of integration. He offered the example of the European Central Bank as a body with both an unusually high degree of independence from democratic actors and one which, in his view, is also disembedded from many relevant stakeholders.
The issue of the independence of financial sector regulators was picked up by Fabrizio Gilardi, a political scientist from the Centre for International and Comparative Studies at the University of Zurich who examined the success with which such institutions have implemented the Basel Accord rules. His empirical work suggests that independence does contribute towards success in implementation. Yet his contribution also raised one of the key themes of the workshop, namely that such regulators can be viewed as having multiple principals – not only those who delegate to them powers of decision-making, but also the regulated entities who supply key information about regulatory risks and feasible solutions. As such, the issue of embeddedness for these institutions has multiple dimensions.
The second panel addressed the issue of institutionalisation in regional integration beyond the EU. Professor Mario Telo, an important international relations scholar of these processes at the Université Libre de Bruxelles spoke about the role of supranational institutions in the non-EU regimes, picking up on the themes of efficacy and embeddedness raised in the first panel. Allan Tatham from Péter Pázmány University focused on the independence of regional courts in integration regimes in Africa and the Caribbean. He examined the extent of their independence from national executives in relation to their take up of the European Court of Justice jurisprudence constitutionalising regional law through doctrines such as supremacy and direct effect. For instance, judges of the regional court of the East African Community relied on the ECJ jurisprudence as a tool to bolster their own independence from state executives.
One possible take-away point is that different dimensions of the independence puzzle may be more salient in different stages of regional integration: in earlier stages, where the regional institutions need to establish their credibility and particularly where national governance is weak, greater emphasis may need to be placed on the independence of supranational bodies. In later stages of integration, when the supranational decision-making is more complex and multidimensional and the regional institutions are already well-established and credible, the focus may need to turn to mechanisms of appropriate embedding