The Industrial Emissions Directive.
The democratic quality of a new mode of governance.
Abstract
This paper focuses on the democratic strengths and weaknesses of ‘new’ forms of EU governance. First, components of an ideal type of deliberative democracy are extracted from literature, a choice which fits best the particular governance modes under investigation and at the same time can be described as considerably
normative. By ‘testing’ these components in practice using the particular case of the Industrial Emissions Directive and more specifically the (s)election and deliberation processes of its Technical Working Groups, this research reveals which democratic or deliberative defects exist in both those processes and which strengths they possess simultaneously. The conclusions one will eventually draw from such an assessment depend heavily on one’s object of comparison which, in the current case, is the ideal type of deliberative democracy.
25-6-2014 22.609 words Jens Kimmel 5680867 First reader: Prof. Jonathan Zeitlin Second reader: Dr. Rosa Sanchez Salgado
Table of contents
List of abbreviations 1
1. Introduction 2
2. Literature framework 4
2.1 ‘New’ modes of governance 4
2.2 Democracy in ‘new’ modes of governance 6
2.3 Jürgen Habermas: The ideals of a procedural conception 9
of democracy
2.4 Iris Marion Young: The ideals of inclusive decision-making 13 2.5 Nadia Urbinati: The ideals of representative government 17
2.6 Deducing propositions 19
3. Case selection and research design 21
4. Methodology 26
4.1 Research Methods 26
4.2 Operationalization 29
5. Analysis 32
5.1 IEDF and TWG member (s)election and composition 32 5.2 TWG information exchange 39
6. Conclusions 57
References 61
List of Abbreviations
BAT Best Available Technique
BATAEL BAT Associated Emission Level
BATIS BAT Information System
CEPI Confederation of the European Paper Industry
CoM Council of Ministers
DG ENV Directorate-General Environment
DG JRC Directorate-General Joint Research Centre
DMIE Dutch Ministry of Infrastructure and Environment
EEB European Environmental Bureau
EIPPCB European Industrial Pollution Prevention and Control Bureau
EP European Parliament
EPPSA European Power Plant Suppliers Association
IED Industrial Emissions Directive
IEDF Industrial Emissions Directive Forum (Article 13 Forum). IPPC Integrated Pollution Prevention and Control
IPTS Institute for Prospective Technological Research
TWG Technical working group
UIEA Unit of Industrial Emissions and Air
C.A. Christopher Allen, head of the Unit Industrial Emission and Air
S.R. Serge Roudier, head of the EIPPCB
L.M. Luis Machado, representative of CEPI
P.C. Patrick Clerens, representative of EPPSA
C.S. Christian Schaible, representative of EEB
C.B. Cees Braams, representative of DMIE
1. Introduction
An increasingly complex European society has urged the European Union (EU) to look for ways to include citizens and/or their organizations with the aim of increasing the effectiveness of policies made and decisions taken. In other words, these efforts reflected a self-awareness of the EU that it could not sufficiently cope with diverging national, regional and even local specificities which, in turn, complicated decision-making. The result has been a move towards more open-ended and loose regulative arrangements in a number of policy areas. Several scholars have attended this move and tried to capture the nascent ‘new’ modes of governance using different conceptualizations (e.g. Eising and Kohler-Koch 1999; Borrás and Conzelmann 2007; Sabel and Zeitlin 2012). This scholarly shift from more traditional ‘governmental’ styles of policy making including for example an elected parliament or government, towards so-called ‘governance’ approaches has been described as the ‘governance turn’ (Kohler-Koch and Rittberger 2006). More or less simultaneously, a school of literature arose concerning the democratic credentials of these ‘new’ ways of making decisions and policy (e.g. Kröger 2008; Hüller and Kohler Koch 2008; Bellamy and Castiglione forthcoming). This development in literature seems to be logically deriving from the absence of ‘traditional’ forms of democratic accountability and authorization in non-parliamentarian or non-governmental policy making contexts. Without these ‘democratic’ mechanisms such as elections and/or parliamentary inquiry, the question of whether these ‘new’ modes of EU decision making are actually reflecting decisions on behalf of its citizens(’ interests) and thus, might be called democratic, appears to be a justified one. However, that is not to say that ‘traditional’ parliamentarian decision-making contexts itself undoubtedly perform well democratically. It only
suggests that, given such absence of clear and visible mechanisms of democratic ‘control’, scientific attention for the democratic performance of EU governance
innovations can be understood and grounded upon. By making an attempt to answer the particular question circumscribed here empirically, this research will make a relevant contribution to understanding the EU in the light of democracy.
In order to achieve this, two choices have to be made and subsequently justified. First, a particular policy-making context within the EU that shows relatively much resemblance with ‘new’ governance concepts needs to be identified. Second, a choice has to be made among different conceptions of democracy which to an extent constitutes a normative consideration. However, as will become clear hereunder, this choice will be
predominantly justified by its particular suitability to ‘new’ modes of EU governance. Thus, more specifically, this research will contribute by generating an empirical insight into the decision-making processes of a specific ‘new’ mode of governance from the perspective of deliberative democracy.
As concerns societal relevance, the research at hand will enrich the overview one has of the EU’s democratic performance. In other words, the assessment carried out
hereunder will contribute by presenting empirical findings that show the extent to which policy-making processes can be considered to produce decisions ‘of’ or being taken ‘with’ the ‘people’. Potential gaps between citizens and decision makers have to be as narrow as possible if not non-existent in order to make a contribution to the decline of anti-European sentiment across the continent. Gaining awareness of these relative gaps is the first necessary step in the process of preventing these sentiments to flourish and gain support.
The research will develop following the respective steps outlined already in this introduction. First, a brief overview of the literature of new modes of governance will be presented including a section on democratic analysis in this research area. Subsequently, the work of three important democratic theorists will be highlighted and explicated in order to arrive at propositions suitable for empirical usage. The next step will be to select an EU decision-making context that shows ‘new’ governance features to which the previously constructed propositions will be adjusted and operationalized accordingly. Following a methodology section, the analysis of these propositions and their
operationalized components in practice will be the focus of the final chapter. When ‘new’ modes of governance are referred to further in this research, connotation marks will be omitted.
2. Literature framework
In this section an analysis of relevant literature will be conducted from which propositions will be deduced eventually. After extracting relevant concepts and
components from the literature, these will be adjusted in such a way that they will fit the case study used in this research in order to assess the propositions empirically (chapter 4). First, the literature on (democracy in) new forms of governance will be briefly discussed while providing arguments for applying precisely those concepts to the current research and its case study. Then, theory on legitimate lawmaking and democracy will be
discussed centering works of Jürgen Habermas, Iris Marian Young and Nadia Urbinati respectively, from which concepts and arguments will be distilled that might apply to this research’ case. For reasons of conceptual clarity, the main arguments of the above authors will be discussed separately at first. However, further in this chapter, in order to arrive at testable propositions, components derived from each work will be combined. Hereunder it will become clear that the theories put forward by the different scholars will overlap in particular aspects, but especially complement each other in a fashion most useful to the research at hand.
2.1 New modes of governance in the EU
From the late 1980s onwards, political scientists have been focusing more and more on the ways ‘policy-making’ plays out in the policy fields in which the EU is actively operating. This development in research has been identified as ‘the governance turn’ (Kohler-Koch and Rittberger 2006). Since the EU is a multi-level entity operating in a broad variety of policy areas in which it is producing laws, rules and guidelines in different ways, scholars have been emphasizing the different modes of governance that have been and still are utilized by the various decision-making bodies of the EU.
According to Martin Rhodes, the evolution of these different forms of governance is to be categorized using a three-fold typology. The first, the Community method, regards
legislation adopted under unanimity or qualified majority voting in the European Parliament (EP) and Council of Ministers (CoM) that can be characterized by binding legal instruments and a rather rigid form of implementation in which there is no room for variation or flexibility, at least in principle. Moreover, it represents the most coercive mode of governance resting on sound treaty bases. Secondly, there is what Rhodes calls
the method of law via collective agreement which relies on the negotiation between the European Commission and societal actors after which it follows ‘traditional’ legislative procedures in the EP or the CoM, producing either non-binding or non-rigid rules and regulations, but never both. In some cases of less rigid prescriptions, for example, addressees can choose from a set of alternatives to implement. The third category might be simultaneously characterized as less-binding and non-rigid and displays a (quasi-)voluntarist mode of implementation, for it is lacking any legal authorizing and
sanctioning mechanism and takes place mostly outside ‘traditional’ channels of policy-making such as parliaments. This new category or mode of governance shows features like benchmarking, learning from ‘best’ practices, the heterarchical and multilateral participation of societal actors, and consensus-based decision-making practices to be among its key components (Rhodes 2010; Mörth 2004). Whilst largely agreeing on the emergence of such modes of governance, several authors have come up with different conceptualizations thereof, as diverse as network governance (Eising and Kohler-Koch 1999), soft modes of governance (Borrás and Conzelmann 2007) and experimentalist governance (Sabel and Zeitlin 2012). Although the different choices of terms, these conceptualizations show similarities with respect to their core characteristics. The resemblance is most obvious in their emphasis on the non-prescriptive character of policy-making, the participation of various non-public and/or private actors and ‘best’ practice or benchmarking mechanisms for increasing effectiveness through (semi-) deliberative practices (see also Craig and de Búrca 2011, chapter 6). Whereas Sabel and Zeitlin particularly stress the importance of the recursive revision of flexible framework goals, Borrás and Conzelmann specifically mention the functioning of societal actors as an integral part of policy-making. The latter aspect, in contrast to mere consultation, is what participation is referred to when used elsewhere in this thesis.
Although there is a continuing discussion on the dominant mode of governance in the EU, it is more clear and widely agreed upon what caused the development of EU policy-making into the uncharted territories of these new modes of governance. Three particular causes have been identified in the literature. The first two regard effectiveness, which can be defined as problem-solving capacity, whereas the third specifically concerns the democratic character of EU governance modes. Firstly, the “need to accommodate [national] diversity”, arising from the so-called “joint-decision trap”, spurred the
Commission to look for other ways of making effective policy. The right of all members of the Council of Ministers to use a veto-vote rendered decision-making extremely
difficult, especially in ‘sensitive’ policy areas with strongly diverging national
preferences (Scharpf 2006:856). Although Scharpf refers mainly to a decreasing number of policy fields in which unanimity is the norm, one could imagine it to be relevant too in situations where policy-makers make use of qualified majority voting (QMV) in order to take decisions. This observation sparked the EU to look for governance alternatives beyond its ‘traditional’ decision-making bodies and procedures. Secondly, the ever-growing complexities of “frontline issues” of modern pluralist societies have made the job of constructing effective policies increasingly hard for EU officials, which instigated a move towards consulting (and including) expert societal actors in the decision- and policy-making processes. These complexities are no longer effectively dealt with by the “street level bureaucrat” and require “frontline” experts to review and revise framework goals and practices (Sabel and Zeitlin 2012:173). Thirdly, growing public dissatisfaction with the EU’s allegedly undemocratic functioning ultimately led the European
Commission to publishing its White Paper on European Governance, in which it expresses concerns for making the EU more open, transparent and accountable in daily practices, predominantly by improving “civil society involvement” (Commission, 2001). The document accentuated the third generation of EU-society relations, the development of which can be characterized by hierarchical consultation of societal groups in the first generation during the 1960s and 1970s, “partnerships by invitation” in the second generation during the 1980s and 1990s, and “full partnership” participation from the 2000s (Kohler-Koch and Finke 2007).
2.2 Democracy in new modes of governance
The third of the aforementioned motivations for governmental ‘innovation’ in the EU brings us one step closer to the central issue in this research. How could or do these new modes of governance apparent in EU policy-making enhance their democratic
performance, given the absence of legal authorization and accountability? This question represents the major concern for a broad school of research that investigates democracy in the EU. The answer to this question obviously depends on the way one looks at these governance processes, an attempt to which has been made by numerous scholars taking different perspectives.
European Governance, this literature framework starts off from the analysis of the body of literature that focuses on civil society participation in order to assess how new modes of EU governance might have become democratic. For it resembles an aforementioned core feature of new modes of governance. To begin with, the concept needs specifying: civil society carries the two basic ingredients of free association and communication (Finke 2007), consequently making civil society organization (CSO) an umbrella term for business interest associations (BIAs), union and professional interest associations
(UPIAs) and general interest associations (GIAs) (Kröger, 2008).
Hüller and Kohler-Koch define a political system as democratic when “the essential decisions in the system are generated in public and if mechanisms exist which effectively link these decisions in an egalitarian or reciprocal way, to their members” (italics added) (2008: 151). Political system here means “a societal association which makes and
implements collectively binding decisions for those who have no real individual exit-option” (ibid). ‘Societal association’ implies that policy-making takes place outside ‘traditional’ channels of decision-making, assigning ‘government’ (in the European case consisting of the Council and Parliament, but predominantly the Commission) merely the task of enabling or regulating the governance processes from which policy decisions result (Héritier and Lehmkuhl 2008). In fact, this act of delegation might enhance the democratic quality of policy-making by producing a more “heterarchical structure of authority” (Bellamy and Castiglione forthcoming:19).
The statement by Hüller and Kohler-Koch is acknowledged here given their research’ main goal, which is to assess the possible ways of analyzing the democratizing potential of civil society participation or inclusion which, as aforementioned, is highly relevant to this research. Following their definition, it seems that participatory governance modes require, on the one hand, the existence of an open public sphere that is accessible to all and representative of the diversity of societal interests, and on the other, the enablement of “effective links to political decision-making” (italics added) through the participation of stakeholders. (Kohler-Koch and Finke 2007:215) For this “link to decision-making” to materialize, it is necessary that the political system creates “fora for political
contestation”, since without a publicly visible forum one would not know where to link the public sphere (Borrás and Conzelmann 2007:541). Similar to the theorizing of Kohler-Koch and Finke, Kröger identifies the yardsticks of access and representation of interests as crucial conditions, while adding accountability of the public power holder, which in turn presupposes transparency, as “a key feature of democracy” (2008:11).
After performing a secondary analysis of relevant empirical research on the participation of CSOs, she concludes pessimistically that contrary to what the term “full partnership” implies, neither equal access and equal representation nor accountability exists in the relevant governance situations where CSOs were included (Kröger 2008).
Sabel and Zeitlin argue in favor of the accountability aspect of new modes of governance introducing dynamic accountability, which they derive from the presupposition that, in a complex societal environment, traditional principal-agent relationships can no longer be plausibly effective given the strategic uncertainty of the principal to formulate specific goals and the means to achieve those goals, against which agents can be held accountable. Rather, given the expert superiority of ‘agents’ over ‘principals’, accountability means that “the agent is required to explain and justify his actions to those [peer agents] who have the necessary knowledge to understand and evaluate those actions”, which presupposes transparency of information (Sabel and Zeitlin 2008:38). While this theory of accountability could very well enhance the effectiveness of policy-making and implementation, it is less clear whether it might contribute to democracy in a given situation of new mode of decision-making context.
Borrás and Conzelmann focus on the democratic potential of new modes of
governance specifically which is why their definitions appear to be highly relevant to the research at hand. They define two crucial conditions for democracy in new governance modes as openness: “bringing in views and opinions of lay citizens, civic and social organizations representing them, and other stakeholders without any pre-selection of actors”; and responsiveness: “the degree to which demands are heard and taken into account” (Borrás and Conzelmann 2007:542). Interestingly, they make a distinction between ‘lay’ citizens, CSOs and other stakeholders, bringing to mind the question what public (in the above conditions for democracy) actually means and which meaning tends to carry more democratic weight. Does a political forum need to offer contesting
opportunities to literally all citizens (direct participation) or does representation of interests suffice, as long as the decision-making process is transparent and at the same time responsive to the public? The reference to members by Hüller and Kohler-Koch yields another question: what defines members? Does it mean, in the case of the EU, that all (representatives of) EU citizens who might have a stake in a particular policy decision should have the possibility to participate or could it be that issue-specific constituencies (Kröger 2008) might be constructed so that all interests at stake can be expected to be covered, as is the case in sectoral governance (Héritier and Lehmkuhl 2008). In that case
it is necessary to ask oneself who decides which actors are included and on what basis this occurs.
Last but most importantly, new modes of governance privilege “deliberative,
consensus-based, and reciprocal learning forms of policy-making and problem-solving” (Bellamy and Castiglione forthcoming: 6) which might bring additional egalitarian and democratic strength to the policy-making process. In fact, all theories highlighted above, to a greater or lesser extent, derive their normative views from a procedural or
deliberative conception of democracy, theorized by Jürgen Habermas in his book Between Fact and Norms: Contributions to a Discourse Theory of Law and Democracy (1996).
2.3 Habermas: the ideals of a procedural conception of democracy
“The “self” of the self-organizing legal community disappears in the subjectless forms of communication that regulate the flow of discursive opinion- and will-formation in such a way that
their fallible results enjoy the presumption of being reasonable” (Habermas 1996:301)
Habermas’ theory lays the foundations for a normative model of procedural or
deliberative democracy. In other words, he grounds the arguments why he believes that the emphasis on procedures and deliberation is the best option available to ensure
democracy in a complex societal context. Societal complexity simultaneously constitutes one of his arguments for explaining the emergence and development of such a democratic form: a modern society which can be characterized as a socially pluralistic world sets in motion a process of societal rationalization given the erosion of shared agreements resting on moral (e.g. religious) and ethical (e.g. nationalistic) grounds (see Chapter 3). Since these implicit agreements are becoming increasingly criticized or even fade
entirely, this will lead to the need to achieve explicit agreements on an increasing number of controversial issues.
reading of human rights nor to an ethical reading of popular sovereignty”, respectively the positions of Kant and Rousseau (1996:104) (italic added). Accordingly, the legitimacy of law does not lie in moral, civic or individual autonomy, but rather resides in political equality in lawmaking, rejecting the view of law as mere medium for pre-existing values to be translated into human rights and positive law. That is why, in his view, human rights and, to a greater extent, positive law are not capable of being “resistant to historical time” (ibid.:129). New societal contexts, changing environmental factors and different peoples will produce different interpretations of ‘right’ and ‘wrong’, ‘good for us’ and ‘bad for us’, which is why political equality is internally connected to moral, ethical and
individual values and preferences. In other words, political equality is supposed to give individuals or groups themselves the freedom to communicate the values and preferences they adhere to in an egalitarian manner. Habermas explicates political equality in more detail using his discourse principle (D) which he defines as follows:
“Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses”. (ibid.:107)
Action norms refer to ‘regular’ binding rules or laws that, by “generaliz[ing] behavioral expectations” (ibid.:107) , fulfill a coordinating function in societal life. All possibly affected persons could be interpreted as a group of people that is boundless within the geographic jurisdiction of that action norm. For one could imagine that it might be impossible to determine whether at a certain point in time, all relevant rationales are taken into account. In a socially pluralist society, this yet to be demarcated group can be expected to display diverging values and preferences (deriving from dominant moral, ethical, pragmatic or individual views) regarding the available action norms. Because the (groups of) citizens holding these views should be able to rationally agree with a decision (or action norm), it requires participants to formulate their preferences in the light of the preferences of the others. This leads to the principle of mutual recognition or, in the words of Hüller and Kohler-Koch, “other-regarding behavior” (2008:151). The act of regarding ‘the other’ in decision-making, Habermas continues, will be most probably ensured if these making processes are performed discursively, that is, decision-making through equal discussion. To reach a situation wherein this happens, citizens need to be accorded the following rights:
“Basic rights to equal opportunities to participate in processes of opinion-and will-formation in which citizens exercise their political autonomy and through which they generate law”. (1996:123)
Whereas will-formation applies to the processes that precede a binding decision, opinion-formation, in turn, precedes the formation of the will of a particular legal community. The latter most often takes place in the public sphere of that community, while the former plays out in the formal lawmaking institutions. Habermas vaguely defines the legal community as a “voluntary association of consociates under law” (ibid.: 122), which points to and re-emphasizes the meaning of (D). The term voluntary association highlights Habermas’ conviction that citizens should in principle always have the
opportunity to participate in the generation of law that affects them in order to be able to understand themselves not only as subjects or addressees of the law, but also as its authors (ibid.:454).
The reference to the distinction between opinion- and will-formation brings into focus the different levels in which politically equal (groups of) citizens should have the
possibility to communicate their values and preferences to all members of their legal community and reminds the reader of the necessary links between societal and lawmaking agents and bodies discussed in section 2.2.
So how does Habermas propose to ensure the ‘equal opportunities to participate’ as well as the effective link between public sphere and politics? How could it be guaranteed that citizens recognize themselves as authors of the law to which they are subject? To begin with the former, he stresses the necessity of institutionalizing the procedures that make decision-making processes into equal and inclusive discourses. Thus on the one hand, the procedures that structure will- and opinion-formation have to be legally determined and, on the other, they need to demonstrate a predominant discursive character if these processes are to do justice to (D), and to offer a generalizable
expectation of participants’ actions (ibid.:110). “These [democratic procedures] are meant to guarantee that all formally and procedurally correct outcomes enjoy a presumption of legitimacy” (ibid.:126). This means that, although neither morality, nor political ethics or popular sovereignty could presuppose the legitimacy of law, either of them represents an important theme that could play a major part in formal and informal discourses, and therefore these may very well be valid points of discussion (ibid.:452). Indeed, “any topic at least one participant considers publicly relevant must be a valid item for public
discussion” (ibid.:312). Democratic procedures “at least regulate the composition and operation of assemblies that ‘convene’ for a ‘sitting’ in which an agenda is ‘negotiated’” (ibid.:305).
The discursive character of legally institutionalized democratic procedures will enhance the persistence of political equality because it is through the exchange of arguments, value preferences and interests that citizens are compelled to discover and gain an understanding of each other’s positions and take them seriously. Therefore, each should have an equal opportunity to choose topics, control the agenda and make
arguments, as well as to discover, validate and criticize claims and issues (ibid.: 315; 448). As mentioned earlier, these personal or group positions could emanate from a variety of different foundations. Therefore, “in democracy it is not a question of ascertaining the ‘objective truth’ of political policies”, but rather a matter of reaching understanding and agreement over the goals that the parties pursue. (ibid.:294-5)
Conflicts that arise due to competing value preferences or interests, then, can be solved in a number of different ways, not all of them evenly conducive to democracy and (D). Habermas sketches an ideal twofold typology of conflict resolution in the pursuit of collective goals. Firstly, he argues that striving for consensus refers to the attempt to identify some common ground on which all participants can agree, which pre-eminently is a type that enhances (D) in decision- or policy-making processes. Compromise, on the contrary, does not carry so much obviously inherent democratic weight since it involves bargaining which in turn might reproduce existing power structures emanating from unevenly distributed resources among parties. Therefore, Habermas continues, settlements need to testify to a “fair balance among their [participants’] interests” (ibid.:139-40). In order to achieve such a goal, he lays emphasis on the neutrality of procedures (ibid.:308-19) which is especially important in the discussion regarding the authority that eventually decides on issues and conflict, ideally by way of making attempts to achieve consensus or fair compromises.
Whereas Habermas argued that opinion- and will-formation linked to decision-making needs to be structured via democratic procedures, the opinion-formation decoupled from it ought to be an unstructured and “more or less spontaneous” “network of overlapping subcultures” (ibid.:307). Contrary to the role of decision-making bodies or fora as contexts of justification of positions, this public sphere serves primarily as a context of discovery of problems and conflicts (and its associated value preferences and interests) “that cannot be solved elsewhere” (ibid.:307;359). Consequently, “democratically
constituted opinion- and will-formation depends on the supply of informal public opinion”. Habermas stresses that the former process needs to be open and responsive to these informally constructed opinions so that it could be presupposed that the influence of political actors on decisions “ultimately rest[s] on the resonance and indeed the approval of a lay public whose composition is egalitarian” (ibid.:364). In other words, civil society associations, inherently contributing to opinion- and will-formation, in a way emerge from the public sphere in order to subsequently feed into policy-making. This also carries the idea that, on the one hand, the public sphere produces policy-making dynamics through informal and discursive opinion-formation and, on the other, it is reproduced by these policy-making processes preceded by will-formation (ibid.:360).
2.4 Young: the ideals of inclusive decision-making
“Democratic discussion […] is better theorized as a process
in which differentiated social groups should attend to the
particular situation of others and be willing to work out just solutions to their conflict and collective problems […].” (Young 2000:7)
In her book Inclusion and Democracy, Iris Marian Young builds on Habermas’ theory and simultaneously concretizes some of its abstractness. She elaborates on several aspects of the theory of deliberative democracy while especially focusing on the themes of
inclusion, reasonableness and publicity, thereby specifying further the aforementioned concept of political equality. Whereas Habermas constructed deliberative democracy’s core principle political equality as equal possibilities to participate in opinion- and will-formation processes, Young defines it as equal inclusion in the decision-making process and equal opportunities to influence the outcome (Young 2000:52).
To start with the last point made in the previous section, the reproduction of the public sphere, a major consequence of policy-making in general, is often subject to unequal distributions of social power emanating from wealth and privilege. Democratic procedures, she states, might reinforce these inequalities if not substantially permeated with elements of deliberative democracy through which the political process can be “free
of domination” (Young 2000:34), meaning that none of the participants in a decision-making process “is in the position to coerce or threaten other into accepting certain proposals or outcomes” (ibid.:22). This counter-exclusionary force should, beyond membership and voting rights, be acquired through an inclusive form of democracy that “enables participation and voice for all those affected by problems and their proposed solutions” (ibid.:9-10). By distinguishing participation from voice, Young interprets participation more narrowly than did Habermas. She argues that what separates
participation from inclusion is voice: one’s right to express a critical opinion on a piece of policy or decision by which he or she is affected. Additionally, Young identifies two types of exclusion: internal and external. External exclusion, she writes, appears when certain actors “are purposely or inadvertently left out of [relevant] fora for discussion and decision-making” which will produce policies that might or will affect them (ibid.:54). Internal exclusion, on the other hand, presents itself when certain actors, even though they have obtained a seat in the forum or process of decision-making, are not taken seriously when they express their positions and opinions. This could happen for a number of reasons such as a dominant mood that rules out different positions, or the view by others in the forum that one experience “is so different from others’” that it is dismissed (ibid.:55). The most important cause of internal exclusion, however, has to do with modes of communication and will be explicated later.
Adding theoretic value yet again, Young provides the reader with a more detailed definition of affected, which in her understanding means “at least that decisions and policies significantly condition a person’s options for action” (ibid.:23). Translating these determinations of one’s ‘options for action’ to value preferences or interests of a person or group, affected could mean that the extent to which one might be able to succeed (or not) in realizing those preferences or interests, depends predominantly on such decisions and policies. It must be noted, however, that one could very well be more or less radically affected by a decision or that one ‘affection’ might weigh less than others. Operating from a deliberative perspective though, this must not resonate in groups’ respective rights to participation and voice, since on the one hand, this violates the principles of equal inclusion or political equality and, on the other, such disagreement are pre-eminently issues that should be the object of pragmatic, ethical and moral discussions (or opinion- and will-formation) in the political fora of a deliberative democracy. Here, Young
introduces the concept of reasonableness with respect to political communication in order to enhance the deliberative quality of discussion, labeling a person as reasonable when he
or she is willing “to listen to others who want to explain to them why their ideas are incorrect or inappropriate” (ibid.:24). This explication in a way precedes the idea of Habermas’ (D) that all affected could agree with a policy or a decision. Although
“actually reaching agreement is […] not a requirement of deliberative reason, participants in discussion must be aiming to reach agreement to enter the discussion at all” (ibid.:24), which to an extent reflects Habermas’ distinction between consensus and compromise.
Inclusive decision-making and reasonableness entail that democratic procedures and the associated exchange of positions, preferences and arguments enjoy a sense of
publicity. Hereby, the public, being a “plurality of different individual and collective experiences, histories, commitments, ideals, interests, and goals […]” (ibid.:25), has access to a form of discussion and its associated exchange of opinions and interests stemming from the public’s differences. In a situation where (groups of) people tend not to be dominated, the publicity of policy- and decision-making causes participants to think twice before expressing themselves too radically or too self-interested because third parties might be listening, hereby enhancing its inclusiveness. For an expression to be public it does not need to be understood by all immediately, but it should aim in its form and content to be accessible and understandable to all parties affected. Therefore, partial and particular perspectives should be expressed using more general images and concepts
without losing their particularity.
By ‘reason’, Young refers not only to the confined area of rational argument. This equates to the first of three misunderstandings about deliberative practices she thinks are worth emphasizing, namely the misconception that these should privilege certain modes of communication. This illustrates the way in which a particular dominant or commonly preferred mode of communication could internally exclude certain (groups of) people. She specifically emphasizes the tendency of political fora to privilege argument in discussions over policy, which has exclusionary implications because the “focus on argument […] tends to enact internal exclusions of style and idiom” (ibid.:56). For example, certain modes of expression might be judged inferior or less valid for their embodied, emotional or figurative characteristics if action is supposed to follow a “norm of dispassionateness” (ibid.:56). Of all available modes and styles of communication, solely argument sometimes seems to carry the normative weight of being rational, emotionally neutral, and impartial, “transcending the dirty world of interest and passion” (ibid.:63). As a result, different kinds of rhetoric might be denigrated to which, Young contrarily states, participants in political discussion need to pay attention given the
different inclusionary and deliberative functions they fulfill. Rhetoric assumes a distinction between what is said and how it is said and excluding certain parties on the latter basis, Young argues, contravenes political equality. As a starting point, she stresses that the idea that communication could be merely rational is a fiction because “it abstracts from the situatedness of desire [and] interest” (ibid.:65). Rather, it demonstrates a
combination of both. More explicitly, the mode of communication to reach an
understanding is intertwined with the seemingly antithetical strategic mode of pursuing personal interests. One important function of the use of rhetoric is that it often helps issues to reach the agenda of a certain policy-making forum through its unusual and sometimes disruptive character, for instance in the case of protest or demonstrations. Second, rhetoric helps to apply certain claims and arguments to the audience in question. In other words, it gives an expression a specific meaning that is appropriate in the
particular context using figures of speech, jokes, idioms and symbols (ibid.:67-9). Covering for these ‘dangers’ associated with a too strict interpretation of legitimate political communication, Young introduces the term communicative democracy (instead of deliberative democracy) to imply a more open character of political communication.
Another misconception about deliberative practices is that it should privilege unity, either presupposing such commonness as a condition for deliberation, or as its goal. The former Young criticizes by arguing firstly that in the plurality of modern societies citizens cannot presuppose the presence of significant shared understandings or agreement to the extent that there is a common ground to fall back on in case of disagreement or conflict. Secondly, she continues, if dialogue is based on what people already share, not a single participant would be necessitated to change his or her mind “in any serious way” (ibid.:42). The latter presupposition regarding the privileging of unity asserts that
differences of value preferences and interests “are merely private” (ibid.:42). If one takes this perspective, the search for recognition of these ‘private’ opinions causes discussion and decision-making to become burdened by irrelevant (private) issues that should not play a major part in the dialogue that ought to be handling ‘genuinely public’ issues and problems. As opposed to this normative transcendence of interpersonal or intergroup differences and the identification of a common good, which according to Young
contribute to exclusionary tendencies of certain socially differing groups, she argues that agreement should rather be understood in terms of co-operation in order to solve
collective problems that arise from differences, while producing solutions that are provisional and renewable (ibid.:43).
The third misconception about deliberation that Young addresses concerns the assumption of face-to-face discussion. This implies a centralized view of democracy wherein one single political forum composed of all the relevant affected parties makes decisions over policy that applies to all the citizens that live within the legal-geographical limits of the law. In other words, according to this perspective “a legislature […] can take the society as a whole as the object of its deliberations, and discuss the best and most just way to order its institutions and make rules (ibid.:46). Instead, Young argues, (a concept of) democracy has to take into account the plurality and mass-scale of modern societies, inhabiting millions of people with diverging value preferences and interests. Thus, a theory of democracy needs to answer to the challenge of “how its norms and values can apply to mass polities where the relations among members are complexly mediated rather than direct and face to face” (ibid.:45). This matter features dominantly in the work of Nadia Urbinati which will be the subject of analysis in the next section.
2.5 Nadia Urbinati: the ideals of representative decision-making
“Representation is supposed to reflect/interpret/idealize
the nascent political identity of social claims in a society that should afford citizens an equal right to advocate for their interest and acquire discursive visibility.” (Urbinati 2006:35)
In her book Representative Democracy: Principles and Genealogy, Urbinati attempts to defend the statement that representation and democracy are complementary rather than substitutes. Although the idea and its reasoning seem to focus on representation, her argument exhibits a truly deliberative core well-suited to the assessment of the democratic qualities of new modes of EU governance. By stating that “consent is the basis of
legitimacy” (Urbinati 2006: 190) she shows herself to be in favor of the idea of discussion and/or deliberation paving the way for democracy rather than mere elections. Moreover, her definition of the function representation ought to perform reminds us of both
Habermas’ ‘subjects-as-authors’-idea and Young’s description of the ‘misconception of unity’: “It filters and collects knowledge from “the interests of the parts,” and creates a
“whole” in which everyone can recognize him- or herself, because it is based on, and is the result of, the public contribution of the “practical knowledge” or judgment of all.” (Urbinati 2006:175).
The main message Urbinati is trying to get across is that representation should not be looked at as mere delegation of lawmaking power, but rather as a political process that establishes a circularity of ideas and opinions between state and society. Thus, instead of confining deliberation to the assemblies that eventually make policy decisions, it also takes place between citizens and their organizations and associations, and legislative bodies. Because of this continuous exchange of opinions, ideas and interest positions, she continues, authorization as well as accountability are better considered processes rather than acts, making politics “an open and common area of contestable opinions and revisable decisions” (Urbinati 2006:25). However, Urbinati stresses that certain decision-makers can only be part of a particular circle of ideas and opinions given their specific social setting, which is why she emphasizes the necessity of elections as a formal instrument of accountability. Nonetheless, votes constitute relatively information-poor expressions of opinions and interests which therefore play a rather minor role in the exchange of ideas and opinions between state and society.
For ‘openness’ of the political area and circularity between state and society to materialize, however, several conditions need to be satisfied. Again reminiscent of the work of Habermas and Young, respectively the ideas of a ‘spontaneous’ public sphere and an ‘open’ political fora for potentially affected citizens, Urbinati strikingly writes that it is important that citizens have “the right and opportunity to be active whenever they deem […] it “useful and necessary” (ibid.:177). For this reason, arguing with Young, political power should be decentralized, hereby contributing to the political equality and inclusion of citizens that want to utilize their opportunity to effectively influence,
criticize, amend and revise proposals and policy decisions, which amounts to the exercise of their negative power. In other words: “limitations of power can be most effective in a strategy of diffusion within the political system of a plurality of small counter-powers.” (ibid.:195). This time relying on Condorcet, she adds that the successful prevention of “command-like, extralegal, or sudden decisions” (ibid.:184) could also be achieved by “regulating every aspect of politics” whilst especially highlighting the need to purge decision-making processes of a sense of hastiness. This argument resembles quite strongly Habermas’ argument of the necessity of legal procedures for opinion- and will-formation. Apart from denoting centralization as a potentially major democratic
anti-thesis, Urbinati also lays emphasis on Young’s ‘pitfall of rational argument’ but stresses more radically that “rationalism is the subtext of the oxymoron of representative
democracy” (ibid.:57). Here she points to the impossibility of having genuine democratic lawmaking when it demands the creation of an elite of representatives that exercise a monopoly on allegedly ‘rationalistic’ policy-making.
Whether representatives actually represent the ‘interests of the parts’ inside decision-making bodies, depends on their what Urbinati termed representativity and advocacy. The two refer to a sense of “meaningful presence, not simply presence alone” (ibid.:42), which means that representatives should be convinced themselves of the preferences of whom they represent. This conviction, however, needs to be flexible to the extent that a representatives should “believe in their cause but also understand the reasoning of others” (ibid.:47). In other words, she stresses that representativity covers the area between total transcendence of and true adherence to social differences. By emphasizing the
importance of ‘understanding the other’, Urbinati implies the inevitability of deliberation in making representative democracy work. Moreover, “without deliberation there would be no reason for advocacy” (ibid.:46). Her idea of the circularity of opinions and ideas rests on the assumption that advocacy in decision-making bodies would simultaneously require and stimulate advocacy in society, which both rely on deliberation.
2.6 Deducing propositions
It is not surprising that concepts like reasonableness, decisional acceptability, mutual recognition and consensus feature dominantly in the theories of
deliberative/inclusive/representative democracy by Habermas, Young and Urbinati, for it is their substitute for a focus on formal processes of authorization and accountability. Since these issues rarely feature prominently in work on democracy in new modes of governance either, deliberative democracy seems to be a valid perspective to take for assessing the democratic character of a specific case of new EU governance which will be presented in the next section. Based on the theorizing of Habermas, Young and Urbinati, we can construct two separate propositions that concentrate on the democratic quality that might be accorded to a certain decision-making process through the satisfaction of certain conditions for and demands of deliberative democracy. It must be noted that the work of the three scholars overlap in some important aspects which is why none of the two
propositions hereunder should be ascribed to merely the work of one of the three authors. On the contrary, each proposition comprises several (overlapping) elements of each theory, which will be specified and operationalized in section 4.2 in order to arrive at applicable and testable deliberative democratic features.
Proposition 1: A decision- or policy-making process can enhance its democratic quality by demonstrating equal procedures and deliberations between lawmakers.
Proposition 2: A decision- or policy-making process can enhance its democratic quality by demonstrating an open and inclusive method of (s)election of lawmakers.
3. Case selection and description
The single case of the Industrial Emissions Directive (IED) will serve as the object of this research, predominantly because of the resemblance its policy-making processes show to several features of new modes of governance discussed in section 2.1. Note that the conceptualizations presented there express ideal types in order to increase explanatory power but will therefore rarely fit an empirical situation perfectly, but more likely to a greater or lesser extent.
The IED operates in order to reduce or prevent environmental pollution via industrial emissions in water, air and soil (De Lange 2006) and was preceded by a similar piece of legislation called the Industrial Pollution Prevention and Control (IPPC) directive,
officially enacted in 1996 and covering over 50000 industrial installations across EU’s 27 member states (Koutalakis et al. 2010:331). As will become clear in this section, the two share much common ground but, at the same time, diverge in some very important aspects.
The IPPC as well as the IED demonstrates several of the ‘agreed-on’ features of concepts of new modes of governance. The first feature results from the quest for governance innovations that will enable the EU to avoid obstacles to effectiveness deriving from national or sectorial diversity. To that end, by adopting and implementing the IPPC, the EU and especially the Commission introduced a non-binding and flexible approach towards industrial emissions prevention in the member states and, to that extent, represented a “gradual departure from traditional command-and-control instruments based on the setting of uniform, legally binding emission limit values” (Koutalakis 2010:331). Those instruments were being utilized implementing eight separate industrial emissions directives which the IPPC integrated, such as the Aquatic Environment
Pollution Directive (76/464/EEC), the Large Combustion Plant directive (88/609/EEC) and the Hazardous Waste Incineration directive (94/67/EC). The ‘new’ approach under the IPPC was characterized by the directive’s formulation of broad and flexible
framework goals without specifying any concrete or uniform requirements for addressees to conform to (96/61/EC Art.3). Similarly, the IED provides such framework goals in Article 11, stating that industrial “installations are operated in accordance with the following principles: all the appropriate preventive measures are taken against pollution; no significant pollution is caused and; energy is used efficiently” (Commission, Art.11). The ‘only’ legal requirement for industrial plant operators under both directives is the
obligation to possess a permit while operating (ibid. Art.4.). In turn, the permit “shall” refer to a standard consisting of so-called best-available techniques (BATs) which are to be determined during an “exchange of information between the member states, the industries concerned, non-governmental organizations promoting environmental protection and the Commission.” (ibid. Art.13 and 14.) The Commission is legally obliged (ibid. Art.13) to organize this exchange of information which materialized in industry-specific technical working groups (TWGs), although this specific form was not legally prescribed as a part of the IED. On the contrary, the establishment of a Forum (IEDF), consisting of “representatives” of the same four interest groups making up the TWGs, did feature in the directive, the functions of which were to communicate a formal opinion on several issues which will be discussed later (ibid. Art.13).
Here one arrives at a second feature of new modes of governance, namely,
participation of CSOs (non-public and/or private actors) on different levels of the policy process. This inclusion of CSOs has been theoretically explained by a lack of cognitive or technical skills on the part of the EU (Koutalakis 2010),resulting, on the one hand, from increasing societal complexities and, on the other in strategic uncertainty (Sabel and Zeitlin, 2010).
As discussed above, participation means that the relevant actors perform an integral function in the process of determining BAT. A BAT amounts to an industrial technique that is currently operated in a certain sector and exhibits a superior environmental performance while simultaneously being reasonably accessible in terms of economically and technically associated costs (Commission,. Art.3). It must be noted that by speaking of a ‘technique’, not only technology is meant but it also includes “the way in which the installation is designed, built, maintained, operated and decommissioned” (Commission 2010). The goal of the TWG process is the finishing of a draft of a BAT reference
document (BREF). Whereas chapters 2 to 4 of these documents concern the identification of operated techniques and their associated emission limit values (BATAELs), the fifth chapter consists of so called BAT conclusions, which present the final decision on the determination of which techniques are to be considered BAT (De Lange 2006; or see for example the BREF for the production of Chlor-alkali).
Once agreement is reached on this issue, the next step is the activation of the IEDF which communicates a formal opinion on the BREF and its BAT conclusions, which in turn has to be taken into account by the Commission (Commission 2010, Art.13)
Committee consisting of one representative for each member state and, if passed by qualified majority voting (QMV) (ibid. Art.75; EU 2008), the Commission will adopt this decision as a ‘delegated act’ which, from that point onwards, possesses legally binding status (Commission 2010, Art.76). This aspect of policy-making fundamentally differs from that under the IPPC because until the enactment of the IED in 2010, no Committee procedure existed through which standards were legally adopted, but instead it performed similar tasks to those carried out by the IEDF (De Lange 2006). However, this does not mean that, by this very fact, IED policy-making has become strictly binding and non-flexible, thereby alienating it from the concepts of new modes of governance. On the contrary, there still is ample room for flexibility and deviation. For instance, the adopted standards paradoxically do not constitute one single uniform requirement per industrial sector, but rather consist of a set of ‘best available techniques’. The operator of a
particular installation has the legal obligation to conform to the BAT associated emission limit values (BATAELs) that were associated with BATs during the TWG process. Still he enjoys relative freedom in the choice among the different techniques available to him. Article 15 (2) explicates this matter clearly: “[…] the emission limit values and the equivalent parameters and technical measures […] shall be based on the best available techniques, without prescribing the use of any technique or specific technology” (italic added) (Commission 2010, Art.15). The BATAELs demonstrate another flexibility of the standards since they are established in ranges between a lower and a higher emission limit value (ELV), rather than constituting single emission limit values that apply to all installations in a specific sector of industry (Commission 2010). These characteristics reflect elements of new modes of governance, namely the emphasis on
non-prescriptiveness and framework goals (e.g. Craig and De Búrca 2011; Sabel and Zeitlin 2008). Additionally, once the BAT conclusions have been agreed on and subsequently adopted by the Committee, several legal grounds exist for individual operators to qualify for derogation from a certain range of BATAELs, an aspect the IPPC shares with its successor (Truijens 2013). The aforementioned definition of a BAT as well as Article 15 of the IED legitimates derogations from BATAELs if the achievement of those levels “would lead to disproportionately higher costs compared to the environmental benefits due to […] geographical location […] or the technical characteristics of the installation concerned.”
The TWG processes in both the IPPC and the IED and especially the participation of differently oriented organizations like businesses and environmental NGOs, testifies to a
third characteristic of concepts of new modes of governance, namely the presence of benchmarking and learning from ‘best’ practices as mechanisms for policymaking (Truijens 2013). Additionally, the IED’s resemblance with those concepts is highlighted in the Commission’s legal obligation to instantiate the process of determining or, in the case of repetition, reviewing BREF documents every eight years (Commission 2010, Art.13), which reflects Sabel and Zeitlin’s notion of recursiveness (Sabel and Zeitlin 2010).
Yet another aspect in which the IED deviates from the legal functioning of the IPPC is that in 2012 an implementing decision was adopted that laid down “rules concerning guidance on the collection of data and on the drawing up of BAT reference documents […]” (Commission 2012, title). Hereunder this document will be referred to as simply guidance document or guidance. This piece of legislation is prescribing the way a TWG must operate in terms of its procedures that structure the determination of BAT
(2012/119/EU) or, in other words, the decision-making process concerning the technical standards that apply to industrial plants across the EU’s 28 member states. A major legal duty in the TWG process according to this document lies with the European Industrial Pollution Prevention and Control Bureau (EIPPCB). It is responsible for the hosting of TWG meetings and the drafting of the BREF documents (Commission 2012, section 1.2). The EIPPCB is part of the Institute for Prospective Technological Studies (IPTS) located in Seville. Seven BREF review processes have been finished with regard to an agreement on BAT in the TWGs, while two of those are momentarily pending before they are put to a vote in the Committee of the member states (EIPPCB website). Not a single BREF document has ever been rejected by the Committee (interview C.A.).
Ideally, a BREF review (or BAT determination) process takes between 31 and 39 months (Commission 2012, appendix 2) during which a meeting is held twice, notably the so-called kick-off meeting and the final meeting, wherein all participants are expected to take part. Each meeting usually takes approximately one week (interview S.R.). Note that no one is obliged to be present at these meetings nor to participate actively in any way. Before the kick-off meeting commences, the EIPPCB makes an “activation call” and sends out a request to all participants in order to collect the topics and issues that each of them ‘wishes’ to find in the BREF (Commission 2012, appendix 2). More specifically, they upload comments about particular industrial technique they consider BAT on the BAT Information System (BATIS). This online portal is used for all comments, feedback and BREF drafts during the subsequent stages of the process. Usually the preferences for
certain techniques to be in the BREF are accompanied by some justification for these choices. These collections of wishes constitute what is called wish lists (interview S.R.). Subsequently, the EIPPCB and especially its BREF writers start reviewing and filtering the collected data in order to finish the first formal draft of the BREF without it being too exhaustive in its length (interview S.R.).
Once finished, the draft is published on the EIPPCB website and simultaneously sent to all actors that participate in the particular TWG who then are expected to assess and subsequently deliver comments on, amendments and additions to the draft’s text. This newly acquired data again needs reviewing and filtering by the EIPPCB, hereafter amending the BREF. The previous procedural steps repeat themselves once more if necessary: drafting, publishing, receiving data, filtering and amending (Commission 2012, appendix 2). The amended text that is the result of this phase of commenting will be the subject of discussion at the final meeting in Seville, where all participants come together for the second and last time. During this meeting, discussion far and foremost centers on chapter 5 of the BREF containing the BAT conclusions (interview C.S.). After a week of discussing and elaborating, agreement should have been reached on several components of the BAT conclusions, that is, a set of techniques that should be considered BAT in, for example, the paper industry (interview L.M.). Taking into account the
positions, arguments and additional data delivered by the participants, the EIPPCB will produce a final draft of the BREF which should reflect reached agreement on the BATs during the final meeting. During this step, the EIPPCB will have a final say in ‘deciding’ which techniques to consider BATs and draft the final version of the BAT conclusions. Once finished, the document will be published on BATIS and on the EIPPCB website.
In this research I will focus on the BAT determination process that takes place inside the TWGs for the following reasons. Firstly, during the TWG process the content of quasi-binding legislation is decided on which, until now, has always been positively voted on by the members of the Committee and thus adopted by the Commission in its original form (interviews C.A. and S.R.). It is therefore clear that the work taking place inside the TWGs constitutes a major part of policy- and decision-making under the IED. Secondly, it demonstrates several features of theories of new EU governance as found in literature addressed in section 2.1. Thirdly, one might have reasons to expect the TWG policy-making processes to display several elements of the relevant deliberative democratic concepts discussed earlier.
4. Methodology
So far a brief assessment of the literature on new modes of governance has been
conducted followed by a somewhat more extensive analysis of the work of three different theorists that, at least to some extent, focus on deliberative democracy. Their writings offer insightful perspectives on the conditions for and demands of the occurrence of deliberative democracy, especially in the context of new modes of governance. The first section of this chapter will focus on the justification and explication of the research methods used to assess the democratic quality of the TWGs operating under the IED. In the third section, the conditions for and demands of deliberative democracy that were deduced from literature in chapter 2, will be specified and operationalized in order to apply them to the empirical case at hand.
4.1 Research methods
Deciding on research methods means deciding on how one is going to collect data. The answer must depend on the aim of the research these choices are part of. The aim of the research at hand is, as put forward in the introduction, the assessment of the democratic quality of new forms of governance which, in the current case, specifically means TWGs as part of the IED. This ‘test’ relies on a normative conception of democracy set out in chapter 2. Thus, in other words, the goal here is to gain a full understanding whether and to what extent characteristics of the functioning of the decision-making process inside TWGs ‘matches’ some of the conditions for and demands of deliberative democracy that were deduced from literature. This constitutes a ‘comparison’ between characteristics of the ‘ideal type’ of deliberative democracy and those of the empirical case in question (Della Porta 2008:206), and concerns a “search for limited generalizability […] and concrete [democratic] knowledge about specific processes” (ibid.:203). These are characteristics of Della Porta’s case-oriented approach, which is the result of a trade-off between complexity and generalizability in favor of the former (ibid.:207). That is not to say that generalization does not feature at all as a goal of this research. On the contrary, the interviewees introduced hereunder gained experience from their involvement in one or more different TWGs. Since these share a chronology of procedures that is
well-structured by the IED’s legal text and especially the guidance document and the EIPPCB, the findings will be able to constitute a basis for generalization among them. It must be
noted, however, that the specific TWGs can differ from each other in terms of duration and number of participants. Nonetheless, they always involve participants from each of the four categories of actors prescribed in article 13(1) of the IED. As mentioned in chapter 4, this means that a TWG legally consists of representatives from the industry sector addressed, environmental NGOs, delegates of the member states and
representatives from the Commission’s DG Environment (DG ENV) or DG Joint Research Centre (DG JRC). The latter is the funding ‘mother’-organization of the Institute of Technological and Prospective Studies and thus of the EIPPCB.
To gain an understanding of how the characteristics and the actual materialization of the TWG process might compare to components of the ideal type of deliberative
democracy addressed in chapter 3, six interviews were conducted with people closely involved in the process. The information extracted from these interviews will constitute the main source of data, supported by (un)official documents. The sample of interviewees consists first of all of four TWG members from three relevant categories of participants, that is, one representative of an environmental NGO, two of industry and one member state delegate, respectively Christian Schaible (C.S.) of the EEB, Luis Machado (L.M.) of the Confederation of the European Paper Industry (CEPI), Patrick Clerens (P.C.) of the European Power Plant Supplier Association (EPPSA), and Cees Braams of the Dutch Ministry of Infrastructure and Environment (DMIE). This provisional sample of interviewees enables the researcher to “obtain accounts from direct witnesses to the events in question” (Tansey 2007:767) which enhances reliability. Given their diverging orientations and attitudes towards different features of the process and its desired
outcome, as well as their experience from participating in different TWGs (De Lange 2006), collecting data from at least one person from each of those participant ‘types’ should render the least biased picture of the process’ democratic quality. In other words, people with diverging interests will judge and value certain procedures or decisions to a varying degree and therefore emphasize or mention at all those aspects of the process they think are worth emphasizing. Thus, including them should at least to some extent
compensate for a category-based bias. It must be noted, however, that each participant carries his/her personal perspective on the process, emphasizing particular elements of it, for which cannot be compensated unless all participants of all TWGs would have been interviewed. The two other interviewees consisted of Serge Roudier, a BREF writer who is also the head of the EIPPCB, and Christopher Allen, who is the head of unit of Air and Industrial Emissions (uAIE). The former is included for his clear view on the information
