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After summarizing the arguments of the preceding chapters, this concluding chapter reflects on the principle challenge of European governance going forward: how to legitimize the novel system of supranational administrative governance. This system enjoys significant regulatory power but significantly less autonomous capacity for self-legitimation, for which it depends on the mechanisms of national oversight described in the prior chapters. This concluding chapter asserts that it would be wrong, as some have argued, to view the system of European governance as “beyond delegation,” in which supranational regulatory power now demands an autonomous form of democratic and constitutional legitimation “beyond the state.” This assertion ignores both the history of administrative governance as well as the fundamentally administrative character of the EU. Europeanized administrative governance is no doubt complex, but it still remains dependent on the historically constituted bodies of the nation-state for ultimate democratic and constitutional legitimation. In that regard, the concepts of delegation and mediated legitimacy remain essential to understanding the institutional development of European integration going forward. With an eye to the future, this chapter explores possible institutional innovations in the EU, notably the establishment of a European Conflicts Tribunal to rule on Kompetenz-Kompetenz disputes. The chapter then concludes with reflections on the sovereignty, the nation-state, and integration history.

This chapter describes the final element of the convergence of European public law around the legitimating structures and normative principles of the postwar constitutional settlement: national parliamentary scrutiny of European policy making. The chapter begins by describing the pivotal change in European public law—the vast expansion of supranational regulatory power with the Single European Act (SEA) of 1986—as well as the failure of the European Court of Justice (ECJ) to police that expansion through the subsidiarity principle in the 1990s. This policing function thus fell to the Member States themselves, and it is in that regard that national parliamentary scrutiny took on greater importance. European scrutiny mechanisms had existed in certain countries (notably Denmark and the United Kingdom) as early as the 1970s. Nevertheless, it was not until after the vast expansion of supranational regulatory power in 1986, continuing through the effort to reform the democratic foundations of integration into the 2000s, that national parliamentary scrutiny became a significant element of integration law and politics. In the 2000s, moreover, attention to the national parliamentary role translated into significant changes in supranational law. The so-called ‘subsidiarity early-warning mechanism’ of the now-defunct Constitutional Treaty, carried over to the Treaty of Lisbon, built directly on the national developments of the prior two decades. The chapter concludes that national parliamentary scrutiny reflects both the importance of mediated legitimacy in European governance as well as its ‘polycentric’ constitutional character.

This chapter explores the national antecedents to European integration by looking at the postwar constitutional settlement of administrative governance on the national level in more detail. It begins by describing the constitutional crises of the interwar period. The first section surveys the strains placed on traditional conceptions of separation of powers during the interwar period (the so-called ‘crisis of parliamentary democracy’) and the role of functionalism as an idée-force in both domestic public-law debates and international-relations theory. This discussion focuses particularly on the views of Carl Schmitt and David Mitrany. The chapter then turns to the elements of the postwar constitutional settlement: the phenomenon of delegation and the redefinition of the role of constitutional legislatures (parliaments); the role of the chief executive in providing ‘plebiscitary leadership’ for the growing technocratic-administrative sphere; and finally the emergence of courts as mechanisms to ensure constitutional commitments to individual rights and collective democratic structures. The chapter concludes with a discussion of the system of ‘mediated legitimacy’ as essential to the constitutional stabilization of administrative governance in the postwar decades, on which European integration would also subsequently build.

The emergence of the EU over the last six and a half decades presents a fascinating case study in legal and political change in which varying conceptions of legitimacy have played a crucial role. This chapter explores how those conceptions have manifested themselves in the context of the evolving role of national parliaments (NPs) in EU public law. Section 1 confronts the variable nature of legitimacy in more theoretical depth, culminating in a discussion of the concept of mediated legitimacy in modern administrative governance. Section 2 explores how the theory of mediated legitimacy might illuminate the historical evolution of national parliamentary scrutiny in EU affairs. The chapter concludes by reflecting on the broader question of ‘resilience’ and ‘resignation’ of NPs in the process of European integration going forward.