Final Activity Report Summary - PARTICIPATORY EU (Participatory governance in the EU)
The research project on Participatory Governance in the EU contributes to the on-going constitutional and legal discussions about ways to promote transparency, accountability, and legitimacy within the EU system and its institutions. It reaches the conclusion that greater transparency of EU regulatory structures is necessary, and it argues that a clearer procedural framework for the law-making processes of the EU is needed, in the form of a New European Public Law. Within this new field of public law, it is not constitutional law but administrative law that should play the key role; clear procedural rules in European administrative law have to be established which can ensure better participation of civil society in general, and of public interest organisations in particular, in the regulatory processes of the EU.
The 'governmentality' of EU governance symbolises the deep legitimacy crisis of the contemporary European Union, where technocrats, rather than elected parliamentarians, increasingly seem to become the European decision makers. Taking risk regulation as one out of several major examples, the research project shows that the categorical difference between legislation and the execution of laws has become substantially blurred. While the classical Community method foresees that the EU decides upon the legal norms and the Member States implement and execute them, the new regulative reality of the EU looks completely different: a new level of a self-integrating European administration has emerged. Incrementally grown out of both necessity and the Member States' interest in control of regulation, the new regulatory mechanisms of the EU, such as the hundreds of EU committees and working groups, and the growing number of regulatory agencies, threaten to overgrow and outpace the EU parliament and the national parliaments alike.
Various attempts have been made to cope with this situation in legal terms: for many, a formal constitutionalisation of the EU, in a terminology familiar from the Member States, could solve the basic problems of legitimacy and accountability. The Constitutional Treaty, however, does not provide for such a neat solution, but leaves the field of regulation below the level of primary legislation virtually untouched. Additionally, classical constitutionalism is not the adequate level at which to address the legitimacy problems supranational regulation poses. The metamorphosis of the regulatory state -from government to governance- had already taken place within the Member States, and its transformation into a European re-regulatory machine has only intensified its remoteness, obscurity and opaqueness. The generation of expertise, however, cannot be simply 're-parliamentarised', especially because of the lack of expertise and resources on the side of the parliament(s): the turn from government to governance, it seems, is irrevocable.
Constitutionalism, this project holds, is thus too abstract a concept to deliver practical tools for the legal 'taming' of EU governance. Its general instruments and principles - such as proportionality or subsidiarity - cannot address the specific problems the turn to New Governance mechanisms in the EU presents.
Then again, mere political initiatives of the likes of Plan D, or other projects such as the new European Transparency Initiative, are insufficient to address the shortcomings of the existing institutional and legal structure, primarily because they disregard the specific connection between national constituencies, civil society, and a legitimate legal order. The European Union needs a legal and institutional structure which enables, supports, and safeguards a culture of contestation. Greater transparency and better participation of civil society in all stages of the law-generating processes of the EU, these are goals which have to take centre stage in a new European Administrative Law, a law that takes the development of an integrating European Administration seriously.
The 'governmentality' of EU governance symbolises the deep legitimacy crisis of the contemporary European Union, where technocrats, rather than elected parliamentarians, increasingly seem to become the European decision makers. Taking risk regulation as one out of several major examples, the research project shows that the categorical difference between legislation and the execution of laws has become substantially blurred. While the classical Community method foresees that the EU decides upon the legal norms and the Member States implement and execute them, the new regulative reality of the EU looks completely different: a new level of a self-integrating European administration has emerged. Incrementally grown out of both necessity and the Member States' interest in control of regulation, the new regulatory mechanisms of the EU, such as the hundreds of EU committees and working groups, and the growing number of regulatory agencies, threaten to overgrow and outpace the EU parliament and the national parliaments alike.
Various attempts have been made to cope with this situation in legal terms: for many, a formal constitutionalisation of the EU, in a terminology familiar from the Member States, could solve the basic problems of legitimacy and accountability. The Constitutional Treaty, however, does not provide for such a neat solution, but leaves the field of regulation below the level of primary legislation virtually untouched. Additionally, classical constitutionalism is not the adequate level at which to address the legitimacy problems supranational regulation poses. The metamorphosis of the regulatory state -from government to governance- had already taken place within the Member States, and its transformation into a European re-regulatory machine has only intensified its remoteness, obscurity and opaqueness. The generation of expertise, however, cannot be simply 're-parliamentarised', especially because of the lack of expertise and resources on the side of the parliament(s): the turn from government to governance, it seems, is irrevocable.
Constitutionalism, this project holds, is thus too abstract a concept to deliver practical tools for the legal 'taming' of EU governance. Its general instruments and principles - such as proportionality or subsidiarity - cannot address the specific problems the turn to New Governance mechanisms in the EU presents.
Then again, mere political initiatives of the likes of Plan D, or other projects such as the new European Transparency Initiative, are insufficient to address the shortcomings of the existing institutional and legal structure, primarily because they disregard the specific connection between national constituencies, civil society, and a legitimate legal order. The European Union needs a legal and institutional structure which enables, supports, and safeguards a culture of contestation. Greater transparency and better participation of civil society in all stages of the law-generating processes of the EU, these are goals which have to take centre stage in a new European Administrative Law, a law that takes the development of an integrating European Administration seriously.