Edited by: Leonard F.M. Besselink, Frans Pennings, Sacha Prechal
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Legality is a traditional normative concept to regulate the relationship
between those in power and those subjected to that power. The principle of
legality protects the citizen against the arbitrary use of power, or, more
precisely, it demands a legal basis (which itself must be of a certain
standard) to legitimize State action. Is legality under siege in Europe? The
authors contributing to this provocative and important book answer this
question in the affirmative.
Twenty-one outstanding European legal scholars expose a spectrum of ways in
which the traditional legality principle is under pressure because of the
creation of new legal orders, including that of the EU, and the interaction
between these new orders and that of the State, combined with such factors as
expertise driven governance, difficulties of international organizations to
meet their objectives due to a lack of adequate powers, and lack of
The question of whether the main functions of legality – legitimating,
attributing and regulating the exercise of public authority – are still
fulfilled in the context of the overlapping, interacting, and mutually
dependent legal orders of the EU, the ECHR, and the Member States is at the
background of all the essays in this volume. Recognizing that legality, if it
is to survive, demands rigorous reconsideration of its scope and application,
the authors interrogate not only such fundamental democratic issues as who has
legitimate power to perform legislative acts and through these to exercise of
public power over citizens, but also such urgent European problems as the
• the use of the precautionary principle in EU decision-making;
• the scope of the principle that the exercise of public authority must rest
on an act of Parliament;
• the extent to which the EU can provide a legal basis for action of Member
State authorities in the absence of such a basis within Member State legal
• the constitutional position of independent ‘regulators’;
• the requirements that ECJ and ECHR case law impose on the exercise of public
• whether legislative results are coherent in the sensitive area of equal
• transparency, legal certainty, enforceability, and implementation of EC
Directives in the field of workers’ involvement;
• new instruments as the Open Method of Coordination and the involvement of
social partners in decision-making;
• the de facto harmonization of national criminal justice systems; and
• the prominent role of the EU in the field of data protection.
There can be little doubt that the issue of legality and to whom it applies –
in a world in which the role of the modern State is changing profoundly – is a
crucial one. It is highly important in the context of the ongoing discussion
on the meaning of democracy and citizenship. This volume, with its clear
message that reconsidering legality demands taking serious issue with the
uncertainty engendered by the processes of globalization, will resonate
profoundly among practitioners and policymakers in this time of momentous
Preface. List of Authors. List of Abbreviations. Part I: Introduction:
Transformation. 1. Introduction: Legality in Multiple Legal Orders; L.
Besselink, F. Pennings, S. Prechal. 2. As Good as It Gets: On Risk, Legality
and the Precautionary Principle; B. de Vries, L. Francot-Timmermans. Part
II: Legality and the Attribution of Powers to Public Authorities. 3.
Administrative Powers in German and English Law; G. Jurgens, M. Verhoeven, P.
Willemsen. 4. National Legality and European Obligations; M. Verhoeven, R.
Widdershoven. 5. The Legality of Independent Regulatory Authorities; A. Ottow,
S. Lavrijssen. Part III: Legality and Quality of Legislation. 6. The
Quality of the Law as a Tool for Judicial Control; A. Woltjer. 7. Coherent
Codification? A Case-Study in EU Equal Treatment Legislation; S. Burri. 8. The
Rocky Path of EU Legislation on Workers’ Involvement: Coherent Codification of
the Right to Information and Consultation of Workers in European Law? T.
Jaspers, R. Meyers. Part IV: Legality and the Impact of Non-Legislative
Instruments. 9. The Open Method of Coordination in the Area of Social
Policy and the Legality Principle; F. Pennings. 10. The Principle of Legality
and the ‘Soft Law’ Regulation and Supervision of Financial Markets; T.
Duijkersloot. 11. The Quasi-Legislative Powers of the European Social
Dialogue: Imperfect Delegation of Powers or Ambivalent Recognition of
Contractual Autonomy? A. Veldman. Part V: Legality and Concealed Mechanisms
behind Extension of EU Powers. 12. The Principle of Attributed Powers and
the ‘Scope’ of EU Law; S. Prechal, H. van Eijken, S. de Vries. 13. Eurojust
II: Un tiens vaut mieux que deux tu l’auras? T. Marguery. 14. Legality and
Data Protection Law: The Forgotten Purpose of Purpose Limitation; E. Brouwer.
15. Conclusion: The Eclipse of Legality – An Assessment; L. Besselink.