The OMC and its Patch in the European Regulatory and Constitutional Landscape

Abstract

Multi-level forms of governance, as representing a less top-down and more bottom-up approach, have been promoted with a view to enhancing not only the legitimacy of EU action but increasingly also its effectiveness. At the same time, however, their use raises effectiveness and legitimacy concerns of its own. This also goes for the open method of coordination, as one of the major manifestations of the Union’s multi-level governance development. Much research on the OMC focuses on its use in particular policy areas and the effectiveness concerns that may arise in such areas. In this contribution the focus will be more generally on the legitimacy of the OMC as a regulatory device, in terms of its legal foundations. It asks how the use of the OMC fits in the European regulatory and legalconstitutional landscapes, in particular to what extent its current patch in these landscapes, in the light of the quest for more legitimacy of the EU, can be said to lead to a need for a) more conceptual clarity and b) a better constitutional embedment in the Treaties? After analysing the development of the OMC in the broader regulatory context of the EU, the relation between the OMC and the classic Community – now Union – method and the European legal framework within which the OMC is being resorted to, the focus is on whether this legal framework meets the requirements imposed by the principle of legitimacy; in particular, under what legal conditions would one be able to say that the OMC makes indeed a contribution to the legitimacy of the European Union? It is argued that some constitutional changes need consideration in this regard.