GOVERNANCE NETWORKS AS SOURCES OF DEMOCRATIC
LEGITIMACY IN THE EUROPEAN UNION
MA Thesis in European Studies Graduate School for Humanities
Universiteit van Amsterdam
Author: A.L.D. (Adrian) Marica
Student number: 11144157
Main Supervisor: dhr. dr. J.B.M.M.Y. (Jamal) Shahin Second Supervisor: dhr. dr. M.M. (Matthijs) Lok
Amsterdam January 2017
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GOVERNANCE NETWORKS AS SOURCES OF DEMOCRATIC LEGITIMACY IN THE EUROPEAN UNION
Table of Contents
Abstract ... 3
Acknowledgements ... 4
List of figures and tables | List of abbreviations... 5
Introduction ... 6
Chapter 1: Government and governance in the European Union Chapter overview ... 9
Legitimacy of government and governance in the European Union ... 9
Shift from government to governance ... 13
Network governance as a novel mode of governance within the European Union ... 17
Chapter conclusions ... 21
Chapter 2: Governance networks in the European Union: institutional governance Chapter overview ... 23
Outline of EU’s institutional framework: brief historical and functional overview ... 23
Inter-institutional agreements as public governance tools in the EU ... 27
IIA focus: analysis of the 2016 Inter-institutional Agreement on Better Law-Making ... 29
Chapter conclusions ... 34
Chapter 3: Governance networks in the European Union: enablement of private stakeholders in EU policymaking Chapter overview ... 36
European Commission’s public consultations ... 36
European Commission’s expert groups ... 40
Chapter conclusions ... 45
Concluding remarks and research directions ... 47
Bibliography ... 51
3 ABSTRACT
Governance of the European Union represents a core research interest for academic scholarship, which pursues to explain models of supranational governance and conceptualise them in accordance to the existing nationally oriented frameworks. The usage of novel models of governance, such as governance networks, represents a rather innovative way to tackle issues related to polities' democratic legitimacy. Consequently, the European Union is creating and enforcing governance models based on its networks, consisting of both public and private actors. Dominating actors of EU's governance networks remain the public ones, from both national and supranational levels. Therefore, the EU's inter-institutional agreement on better law-making represents a key document that explains the Union's institutional setting, explaining the functioning of the public component of European governance networks. Furthermore, the Union addresses the private component of these networks by using tools such as public consultations and expert groups, in order to enhance access to policymaking for private actors. Analysing the developments within the EU and its governance structures, this paper argues that governance networks contribute to the consolidation of the Union's democratic legitimacy, but to a lesser extent than expected. The paper's findings reveal that the domination of governance networks by public actors leads to a narrower space for private stakeholders to participate to policymaking processes, which harms the overall Union legitimacy based on private actors' engagement.
Key words: network governance, democratic legitimacy, policymaking, inter-institutional
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ACKNOWLEDGEMENTS
I would like to take this opportunity to extend my sincerest and warmest gratitude to Dr. Jamal Shahin for his constant and extremely valuable support throughout the past year and a half. His considerations have been highly relevant for my work, and his advice has been valued at all times. His door has always been open and his continuous feedback steered this thesis into the right direction.
I would like to further thank the professors of the European Policy master's programme at the University of Amsterdam, who have provided me with the proper know-how and critical thinking, in order to be able to complete this thesis and, along with it, the MA programme. Any faults of this paper are to be exclusively attributed to the author.
Adrian Marica
Total number of words (excluding cover page, table of contents, acknowledgements, list of figures and tables, list of abbreviations, bibliography and appendixes): 17,389
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LIST OF FIGURES AND TABLES
Figure 1: Governance legitimation cycle in the European Union Page 11
Figure 2: EU core institutional framework Page 27
Table 1: Government versus governance Page 15
Table 2: Tools for better law-making Page 32
Table 3: Expert groups' member types Page 43
LIST OF ABBREVIATIONS
DG Directorate-General
EC European Commission
ECSC European Coal and Steel Community
EP European Parliament
EU European Union
IIA Inter-Institutional Agreement
ICT Information and Communications Technology
MS Member State(s)
NGO Non-Governmental Organisation
RSB Regulatory Scrutiny Board
SEA Single European Act
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INTRODUCTION
The European Union’s (EU’s) evolution over the past decades has transformed it from a mainly customs union of national states to a political construct that many scholars have described as being sui generis (Hix 1998). The polity in question has emerged over the past decades, both in terms of expanding its territory and accepting new Member States, and of being delegated prerogatives from the respective Member States. A specific point of interest for research, and for this thesis as well, is represented by the European Union’s multi-layered governance, given its importance for democracy and democratic practices within a union of states that hold up the ideals and principles of democratic government. In this regard, the EU has been criticised for having a democratic deficit (Bowman 2006, Karp et al. 2003), mainly due to the relations established between the various supranational institutions, but also due to the lack of access that citizens and organised interest groups throughout the Union have to the supranational level of decision-making. This critique brought to the EU has been so present in recent years that it became a major campaign theme in the 2016 British referendum regarding the United Kingdom’s membership to the Union. In this regard, it was, in fact, the current European Commission president, Jean-Claude Juncker, who made better law-making in the EU a central topic for his team of commissioners for the 2014-2019 term. According to the Commission, stakeholder input is at the core of EU policymaking (European Commission 2015), thus attempting to have a more inclusive approach and granting access to as many interest groups as possible to the Commission’s consultation mechanisms.
Therefore, this thesis aims to critically analyse the governance structures of the European Union. As recent developments have shifted focus from government to governance (an evolution that is not applicable to the EU only) (Rhodes 1996,Peters and Pierre 1998), there is a growing interest in assessing how governance impacts democracy and how inclusion of private stakeholders in policymaking contributes to decreasing the EU’s democratic deficit. In this regard, the main theoretical approach of this paper will rely on network governance, as the theory that explains the development of governance networks and their impact on governance. Hence, this paper’s research question is ‘Do European Union’s governance networks, established through specific mechanisms such as public consultations or expert groups, contribute to the consolidation of the Union’s democratic legitimacy?’ The working assumption of this paper is that, since the European Union has only part of the legitimacy that
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its Member States have, it is required to enforce novel governance models that are able to deliver more legitimacy for itself.
The paper is structured in three chapters. The first chapter presents a theoretical background, analysing concepts such as legitimacy, government and governance, and offers a broad perspective on network governance. Its focus will be on topics related to EU’s legitimacy, the shift from government to governance in the EU, and the implications created by such developments for democratic governance structures at both national and supranational levels. The chapter will provide an overview of network governance and how this theoretical background explains the enhancement of democratic governance through the involvement of private stakeholders in more open and transparent policymaking processes. The following two chapters are designed as complementary assessments of the European Union's governance networks, with the second chapter analysing the public component of EU's governance networks and the third chapter exploring parts of the private component of governance networks. Therefore, the second chapter analyses the current mechanisms that are enforced at EU level, focusing on the better law-making package that the European Commission has put forward and submitted to the European Parliament and the Council in May 2016. The chapter is designed as an assessment of how EU’s main institutions work together and how they are enforcing the governance structures, according to their treaty prerogatives. The third chapter further assesses policymaking methods that are used by the Commission, as sole EU institution with legislative initiative prerogative, and focuses on the expert groups that the Commission consults when drafting proposals, and on the public consultations enforced in order to provide better access to the policymaking process. The choice for these two types of stakeholder engagement within policymaking relies on the fact that they represent two different phases of the process - expert groups contribute to the drafting of legislative bills put forward by the Commission, while public consultations are regarded as a tool to shape policies, with the input of broader categories of stakeholders. Moreover, the choice for these two particular means through which the Commission engages with private stakeholders relies on the fact that 'public and stakeholder consultation and feedback' represents one of the tools employed with the purpose of better law-making in the EU. Therefore, these two dimensions of policymaking in the European Union address two main crucial aspects of democratic legitimacy - participation and contestation.
The paper’s final conclusion is that the European Union manages to create and operationalise governance networks, based on the principles of inclusion of private
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stakeholders into the policymaking process. However, this thesis' assessment remains critical of the impact that the respective networks have on the democratisation of the European Union and on the engagement of private actors as a legitimisation process for the EU.
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CHAPTER 1
GOVERNMENT AND GOVERNANCE IN THE EUROPEAN UNION
Chapter overview
This introductive chapter is mainly designed as a theoretical framework for the thesis, a tool that highlights the main characteristics of the concepts upon which the thesis relies. The chapter will first discuss government legitimacy in the European Union, starting from how governments have been legitimised at national level and how legitimisation has been transferred to supranational level. Furthermore, after analysing the sources of legitimacy for government, the chapter will provide a critical perspective on the shift from government to governance in the last two decades, therefore creating new concepts and frameworks in which public and private, national and supranational governance structures can operate. The chapter highlights both the positive and the negative outcomes of this shift from government to governance and how this development affects the democratic practices of government In this part of the chapter, the focus will include developments of neoliberalism as a political rationality in Western world, arguing that neoliberal traits have had a profound impact on governance in the European Union. Lastly, the chapter will assess the concept of network governance, which is the main theoretical framework of this thesis. This chapter’s findings will be further used in the thesis’ following chapters, concerning the European Union’s governance structures and how these function.
Legitimacy of government and governance in the European Union
Ever since the creation of modern statehood, the act of governing has been scrutinised by scholars and philosophers who aimed at providing a rationale for representative democracies, as well as for the limits of political leaders’ powers in office. A crucial element of government is the democratic component of any governing body and its actions. Placing this approach within the schools of thought, such concepts have been analysed by the contractualist theories, developed by scholars like Jean-Jacques Rousseau, Thomas Hobbes or John Locke. The main idea of contractualism, referring to consent (D'Agostino et al. 2014), argues that all individuals who are part of the social contract consent to both its existence and its terms. Therefore, the need of democratic governance is seen as an a priori condition when discussing the legitimacy of governments, having in mind that democratic governance is the sum of elements that
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political institutions can embody in order to provide the best outcomes for their citizens. The elements of social contracts nowadays include a series of components, such as justification of the existence of several institutions, the political association itself or the justice systems politics created in order to regulate a given society.
Central to the idea of a government are both its legitimacy and justification, understanding that “a political system is legitimate in so far as it is justified” (Bekkers et al. 2007, 38). The establishment of nation-states and their development was framed in terms of what these polities would bring to their citizens - welfare, security, national determination. The three sources of legitimacy, as indicated by Max Weber (Peter 2016), refer to tradition, charisma and rational-legality. Peter (2016) discusses Weber’s perspective, considering that “a particular social order produces social regularities that are more stable than those that result from the pursuit of self-interest or from habitual rule-following”. Applying this line of reasoning to the supranational developments in Europe following World War II, it could be argued that there has been a transfer of legitimacy from people to (national) governments and from governments to supranational governance structures. As pursued by the 1950s European statesmen, the new social order in Europe would create more stable regularities than the ones that individual nation-states had managed to enforce previously. However, as figure 1 shows it, this paper argues that the creation and the development of European supranational governance structures have been done in a two-fold process entailing legitimisation and consent. Firstly, people had to give their consent and thus legitimise national states; furthermore, national governments have given their consent to the creation of collective, supranational governance bodies, therefore legitimising their existence and functioning. The main issue concerning this particular transfer of legitimacy from one level to the other is that, while national governments enjoy legitimacy from their peoples and provide legitimacy to supranational governance structures, such legitimacy is not necessarily transitive. Hence, European governance structures would actually have to seek support from both their national governments and their peoples, as opposed to the classical situation of governance structures in a national state.
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Figure 1 | Governance legitimation cycle in the European Union
A distinct characteristic of the European Union, in terms of legitimising itself, consists of the particular type of relations that are established between the interest groups activating within the Union. Based on Robert Dahl’s work, Mann (1993, 46) argues that modern states have evolved through two processes: “(1) the emergence of institutionalized ‘contestation’ between parties and pressure groups representing a plurality of interest groups in society and (2) the widening scope of ‘participation’ by the people in this contestation”. Mann (1993, 47) further considers that, while there is no equality of strength for interest groups in a society, there is sufficient competition between these and the government. Referring to the European Union, the most pressing issue in terms of both contestation and participation is that the interest groups are either present at national level, therefore participating to national processes, or are present also at supranational level, but their level of participation is rather reduced.
Therefore, the main issue in terms of legitimising and consenting to the existence and functioning of the European Union and its governance structures consists of identifying the actors who participate and contest EU processes. Firstly, from a legal point of view, according to the Treaty on the European Union (OJ C 326 2012), article 1 indicates that “Member States confer competences to attain objectives they have in common”. Hence, a first category of actors that legitimise the EU consists of its Member States. However, as the referred article puts it, EU competences are conferred for common objectives that Member States have. In
(National)
Governments
Supranational
(EU)
governance
structures
Citizens
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this regard, who decides which these common objectives are? An ideal case would be a unanimous decision of the Member States, which have the legitimacy of their peoples. Article 15 of the Treaty (OJ C 326 2012) shows that it is actually the European Council that provides “the Union with the necessary impetus for its development”, while defining “the general political directions and priorities”. The article also describes the decision-making process within the European Council - consensus, except for the cases where treaties say otherwise. This particular aspect of European institutionalism shows that the type of democratic governance enacted by the EU is not only an indirect one, but also a transitive one. Thus, this paper argues that the main issue which the EU needs to address is represented by the transitive character of its governance. While governments at national level are accountable to their electorates and to the parliaments that support them while in office, EU officials are not directly accountable to the European peoples.
Secondly, the question on who are the actors who participate to EU processes and constitute sources of legitimisation is explored by Marcus Horeth (1999, 249), who argues that there are three such main sources: the democratic decision-making process, the efficient political action on challenges, and "the indirect democratic legitimacy accorded by member states, and their parliaments, as signatories to the European treaties". The relation between them is portrayed as a zero-sum game, with the EU being in a "'legitimacy trilemma': strengthening the one weakens the others". Furthermore, output legitimacy that the EU has relied upon until recently (understood as its effectiveness to tackle challenges) is not necessarily as efficient nowadays as it used to be, considering that "the Union's capacity to promote the common good is constrained by the extremely high consensus requirements of EU legislation" (Scharpf 2009, 177). Therefore, it is difficult to appreciate which source of legitimacy is preferable and would actually deliver the best outcomes as expected by the Union. As it will be also highlighted further in this thesis, the EU has been concentrating, in recent years, on the legitimacy coming from democratising its decision-making process and making it more inclusive (Finke 2007).
This situation, in which citizens of EU Member States have largely kept as main point of reference their national constituencies, while the governance structures have further developed at supranational level, is explained by Francis Cheneval et al. in Demoi-cracy in
the European Union (2015). They argue that "over fifty years of European integration have
led to a steady strengthening of the European kratos while the demos has mainly remained domestically constituted" (Cheneval et al. 2015, 1), thus indicating that the evolution of
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supranational institutions and their legitimacy has not necessarily been linked to the traditional consent that citizens give to authority in a national setting. For them, the EU is a demoi-cracy, understood as embracing "the dual character of the EU as a community of both states (peoples) and individuals in a common supranational polity" (Cheneval et al. 2015, 2). This approach emphasises on the dual set of characteristics that EU governing structures need to include, one regarding the legitimacy from its Member States and the other from its different demoi across the same Member States. The analysis of EU governance legitimacy relies, hence, on two dimensions, one related to the relation with national governments, and the other one related to "a set of common values and norms ensuring the equality of transnational rights of individuals on the one hand, and respect for the diversity of the demoi on the other" (Cheneval et al. 2015, 2).
Shift from government to governance
Late 20th century academic scholarship discusses the difference between government, which is generally justified by the existence of the social contract, and governance, which can be described as “an inherently broader and more inclusive concept, one that recognises the contribution of diverse multi-level actors and stakeholders in the decision-making processes” (Shore 2011, 289). Beginning with the last decade of the 20th century, political science
academia argues that there has been a clear shift from a government to a governance approach (Bekkers et al. 2007). The main change of paradigm comes from a different understanding of government and its role in policymaking. Although governmental institutions remain crucial to policymaking and have the democratic legitimacy to elaborate and implement legislation, they are now seen as actors within a multitude of other organisations in the policymaking process, as opposed to their central role before the 1990s. Such a perception entails the inclusion of more actors in the process, such as “public, private and semi-public actors” (Bekkers et al. 2007, 3). Such an approach is further strengthened by Türke (2008, 1), who considers that “governments are not playing a primary role anymore”.
The interaction of multiple interests in the policymaking process should be seen as a means to have a more inclusive approach on the outcome, considering that the adopted legislation would have a positive impact on as many stakeholders as possible. However, while a diversity of actors is indeed involved in governance processes, these groups have “unequal capacities to exert influence” (Türke 2008, 1). Developments in democratic government and transfers of policymaking outside the traditional institutions of representative democracy is
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analysed as being either beneficial to democracy itself, or as harmful (Bekkers et al. 2007). While transferring policymaking processes outside the traditional parliamentary environments could harm democracy due to the lack of accountability of organisations other than public ones, there is also a rather positive stance on governance as a practice, as “the ‘reinvention of government’ is primarily seen in terms of improving the quality of public service delivery” (Bekkers 2004, 193). A similar option, aimed towards the enhancement of governance mechanisms, can be observed throughout the European Commission’s approach when discussing European tools for the improvement of policymaking. A senior official of the European Commission declared, in an interview carried out in January 2016, that it is the Commission’s goal to create a policymaking culture throughout the Union, with stakeholders involved at all levels, as a means to both enhance stakeholder engagement, as well as their responsibility and overall accountability within the more broader area of governance in the EU (interview 01, January 2016). Such a perspective confirms the ideas expressed above, regarding the fact that the European Union does have a deficit in terms of legitimisation from its citizens, and therefore institutions such as the Commission are pursuing an agenda for a closer approach to the stakeholders within EU’s Member States.
The government-governance nexus describes a shift in the current evolution of contractualism. Whereas two centuries ago the main positioning was referring to delegation of power from citizens to governments, in order to provide better results for common issues, today’s world witnesses a type of reversed dynamic, with the involvement of civil society in the government exercise, as opposed to the initial substantiation of representative democracy. This observation can be exemplified with the European Union’s evolution: it is an organisation of states that delegate power from national governments to supranational structures in order to provide better results for common issues, which is an actual paraphrase from the Treaty on the European Union’s article 1 (OJ C 326 2012). Such an interpretation of the EU and its purposes could describe the Union more as a governance tool for its Member States and less as a polity with its own governance structures. However, while such an assessment could be further explored, this paper argues that the EU is a polity that has managed to develop its own mechanisms and agenda, as it will be further discussed in chapter 2. The EU has managed to evolve over time and impose a certain degree of "Europeanisation of national policies", with regulation being "the most important type of policy making in the EU" (Majone 1999, 1-2). The Union is further portrayed as a regulatory state that has managed to impose a "trend towards harmonisation of regulatory approaches and closer co-operation between national
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regulators and their EU counterparts" (Majone 1999, 2), thus proving this thesis' argument that the EU is not a mere governance tool for its Member States, but a standalone polity.
Going back to governance, one additional remark should be noted: the shift from government to governance is rather new, even when compared to representative democracy in the Western world. Therefore, a crucial aspect when analysing governance and its impact on the democratic practices of government refers to the beneficiaries of shifting focus from governments to a multitude of actors in the process of policymaking. As indicated above, not all interest groups have the same capacity to contribute to and to influence policies that are drafted at a certain level, let alone the European one, which is highly inaccessible to a majority of its organisations and citizens.
GOVERNMENT GOVERNANCE
One major actor Unicentric system
Mainly exercised by public bodies Usually centralised
National
“Coercion, command and control” (Bekkers et al. 2007, 14)
Multiple relevant actors Pluricentric system
Mix of public and private cooperation Decentralised
National, but also international and supranational
“Negotiation, cooperation and working in concert” (Bekkers et al. 2007, 14) Table 1 | Government versus governance
The term 'government' (and EU's aim to claim its own government, eventually) has been gradually replaced by 'governance', understanding that it would be counterproductive for the EU to pursue a more state-centric approach. As shown by Cris Shore (2011), the idea of a European institutional governing body emerged as early as the creation of European Communities, based on ideas of German ordo-liberalism (Shore 2011, 290). The shift from ‘government’ to ‘governance’ can be easily tracked at EU level. Shore (2011) describes how European Commission high ranking officials, up to its presidents (Delors or Prodi), described the Union’s executive body as “a true government” (Shore 2011, 290). After 2000, EU officials broadly referred to ‘European governance’, taking a step back from promoting political institutions and making space for what people wanted - “people increasingly distrust institutions and politics or are simply not interested in them.” (European Governance - A
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White Paper, COM (2001) 428 final, 1). The approach to opt for governance instead of government in the European institutional narrative could be observed as a way to tackle the infamous democratic deficit with which the Union was and is still dealing. Furthermore, the enablement of a further layer of political institutions could have harmed the Union more than it could have helped it. The general support for anti-system movements, which came in the following decade and it is still unfolding (both in Europe and across the Atlantic, in the United States), is already critical to the European establishment. It would actually be rather intuitive to say that a meta-narrative placing European government in EU institutions’ discourse would have probably enabled an even higher degree of scepticism.
A key role in the evolution of the EU is represented by the economic integration of its member states, since its initial creation and its early developments mainly referred to economic cooperation rather than a political target. The prevalence of neoliberalism as the main rationality of the bloc, after the crisis of the welfare state in the 1970s, emerged as the main direction towards which the European Communities headed as well. Baun and Marek (2014) describe the Union’s neoliberalisation process, which started from the 1980s, as a concern for newer member states (mainly Spain, Portugal and Greece, but also Italy), which would have been negatively affected. The turn towards neoliberalism is connected to the turn from government to governance, as indicated by the French political scientist Michel Foucault, who sees neoliberalism as applying market principles to the activity of governance (Brown 2015). The element that puts pressure on nowadays governance is whether it creates more democracy or it actually hurts the democratic process of government. Shore (2011, 294) indicates that the emergence of governance as a ‘catch-all’ term is connected to neoliberalism and the “hollowing-out of the state, privatisation of public services, deregulation and liberalisation, (…) and the spread of the new public management techniques and practices”. Hence, the turn of the European Communities towards a neoliberal rationality when dealing with economic matters in the 1980s has been transposed at a political level roughly 15 years later. However, EU’s shift from having a government to enforcing governance models at supranational level needs to be addressed while taking into consideration the degree of participation to its policymaking processes and the degree of accessibility that EU institutions make available to interest groups throughout the Union. Hence, participation to policymaking could be a rather wishful-thinking concept (an issue that does not apply solely to the European Union, but to national states as well) in terms of contributing to the enhancement of democratic governance. There are issues such as “the inclusion of weakly organized interest and communities, the
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quality of representation of these groups, responsiveness and accountability” (Bekkers et al. 2007, 4) to take into consideration when assessing whether governance actually enhances democratisation.
Specifically applying this topic to the situation at EU level, a further issue needs to be addressed, namely the fact that "collective identities, public spheres and intermediary political structures such as parties and civil society organizations have remained predominantly national" (Cheneval et al. 2015, 6). Therefore, not only does the shift from government to governance create the debate on how to ensure the access of as many different organised interest groups as possible to the policymaking process, but it also needs to focus on how to engage more nationally-oriented organisations throughout the Member States in the supranational law-making process. While the neo-functionalist envisioned transfer of loyalties did not happen as predicted decades ago, from the national level to the supranational one, the EU did manage to enforce "a collective political system, not an intergovernmental regime", which is described by "a stable system of transnational governance, outside the framework of the state" (Wallace et al. 2005, 491).
Network governance as a novel mode of governance within the European Union
Academic scholarship has theorised a series of models of governance to describe the EU's complex web of mechanisms and tools used to govern. One of these theoretical approaches refers to network governance, in which "steering is focused on facilitating a shared understanding between the organizations or stakeholders in a policy network in order to create a common and trustworthy policy practice through interaction, communication, negotiation and exchange.” (Bekkers et al. 2007, 6). This argument underlines that network governance is mainly focused towards the enablement of governance networks, consisting of both public and private actors, with the explicit purpose of creating a policymaking culture and activating within that certain framework, in order to deliver policies. An important aspect when assessing network governance consists of the fact according to which “the focus is on the active participation of a variety of interests involved” (Bekkers et al. 2007, 24), therefore leading to a “mixture of conflict, bargaining and co-operation” (Bekkers et al. 2007, 25). Such a setting seems to resemble the individualism of the rational choice theory, where every involved actor is promoting their own interests; however, network governance should not be resumed to only a mere bargaining process. Its main benefit would actually consist of a more holistic approach, which takes into consideration all or as many as possible actors involved, leading to the
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creation of a certain policymaking environment. The enablement of a framework that enhances cooperation, based on the identification of collective interests, rather than individual ones, would therefore best explain the expected outcomes of governance networks.
A fundamental characteristic of network governance relies on the high degree of inclusiveness of stakeholders and civil society actors, considering that a consistent degree of participation of relevant actors1 in the policymaking process would actually enhance “the quality of collective problem solving as a result of the possible new combinations of knowledge, information and experience” (Bekkers et al. 2007, 24). There has also been a growing consensus that boosting participation of non-state actors in EU’s policymaking processes would be beneficial for the outcome of the policies and for the Union’s overall legitimacy (Finke 2007). Therefore, stressing the positive effects of a wide participation to policymaking is central to network governance, while all involved actors are aware of the fact that their own competences and knowledge are not sufficient for the elaboration of the best-outcome policy responses; hence, none of the actors, public or private, is central in the policymaking process (Bekkers et al. 2007). This particular analysis of actors’ understanding of their roles within the policy environment provides a certain type of framework that would be beneficial for the European Union as a competing polity with the nation-state (or, more specifically, its own Member States). The enablement of network governance mechanisms, which bring together public and private actors, at both national and supranational levels, describes a certain type of behaviour of the European Union that allows it to bypass the national level (understood as national governmental level) in its Member States.
Concomitantly, network governance enhances the creation of a “shared understanding about the nature of the policy problem and possible actions to be taken”, which would lead to an action of resource exchange, in order “to organize collective action” (Bekkers et al. 2007, 25). This particular type of governance would actually create a community in a quasi-constructivist sense, with actors who are socialised in certain environments, within pre-determined institutional frameworks. Having a ‘shared understanding’ of how an issue should be addressed, while taking into consideration all involved stakeholders’ interests, describes a constructivist community of shared interests (Risse 2004); however, there is no clear reference regarding the possible changes of a stakeholder’s interests, due to this type of socialisation,
1 The phrasing ‘relevant actors’ does not (necessarily) reflect the European Union’s institutions’ perception on
who is a relevant actor for a certain consultation. The concept rather refers to actors from relevant areas being part of consultations, e.g. pharmaceutical companies would not necessarily be a relevant actor in consultations on how to reduce criminality within a given area.
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which actually means that actors have pre-determined interests. On the other hand, Börzel (2012) argues that the governance networks established at EU level have managed to determine Member States' authorities to sometimes act against their interests.
Furthermore, the co-governance (Bekkers et al. 2007) ensured by European public bodies and European stakeholders, while bypassing national governments, would be able to create the conditions of the neo-functionalist loyalties’ transfer (Haas 1958) from national to supranational governance mechanisms. Such a development, applied to the European Union, actually represents a specific evolution of the broader concept of governance, which refers to a shift of loyalties from a government-centric approach to a multi-actor approach. In the particular case described above, it would be expected that stakeholders involved in governance networks at EU level would be interested in transferring their loyalties to an environment that allows them to better develop; however, an assessment of this type is expected to apply only to those areas covered by EU legislation, while national actors involved in European policymaking being expected to be part of policymaking environments at national levels too, especially in those areas not covered by the Union. However, as indicated above, the transfer of loyalties did not happen as previously anticipated by neo-functionalists, mainly due to EU's complex web of governance that combines national and supranational levels, as well as the ongoing cooperation between private stakeholders and public institutions at both levels, depending on EU's prerogatives to regulate in specific areas. Moreover, EU governance is realised through governance networks that are dominated by public actors (Börzel 2012), therefore with little incentives for private stakeholders to switch their attention from national settings, where they might be involved in similar activities.
A further aspect of network governance emerges from its characteristic based on knowledge and the use of knowledge in policymaking. Understanding that public institutions are not expected to be aware of all aspects of the society, knowledge coming from private stakeholders that is fed into the policymaking process appears to be a major contribution to opening up law-making and making it more inclusive. Research shows that "network governance has substantial comparative advantages when it comes to coordinating knowledge-intensive activities at the interorganizational level" (Capaldo 2014, 687). Furthermore, network governance does not only contribute to the implementation of knowledge-based activities, but has a further impact on issues such as information sharing, knowledge transfer between partners and an overall knowledge generation. A crucial aspect indicated by Capaldo (2014, 687) shows that studies of network governance in corporate environments revealed that
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interaction between different organisations leads to facilitation of openness and a drop of the level of "fear of opportunism by partners", while also enhancing "alliance performance, especially under conditions of behavioural uncertainty". This brings back the aforementioned argument of actors' socialisation in a specific environment, which can lead to the adherence to a shared understanding of how knowledge, in particular, and governance, in general, should be structured and enforced.
A novel approach on EU’s legitimacy may derive from the above argumentation. When analysing legitimacy as a characteristic of polities (mainly nation-states), a direct connection to authority is made (Bekkers 2004; Weber 1964). Out of Weber’s three sources of legitimacy, the EU cannot rely on tradition nor on charisma; the third one - the Union’s legality, based on the rule of law - could seem to be seen as the only source of legitimacy of the EU, according to Weber’s criteria (Weber 1964). However, given the new modes of governance, such as network governance, should methodological tools of analysing the traditional nation-state be applied when analysing the Union? The governance networks established within the EU, as a result of EU’s approach towards engaging as many stakeholders as possible, could actually create a totally different narrative on legitimacy enablers. As long as the European institutional framework and its respective mechanisms are able to enforce the tools to create proper networks, it seems appropriate to assess that stakeholder engagement in the policymaking process brings together the conditions for a new type of legitimacy, based on inclusiveness, transparency and knowledge2.
Nonetheless, Bekkers et al. (2007, 48) argue that the emergence of network governance "challenges the output norm of accountability" when taking the decision-making process outside of the traditional political space. While reflecting on the overall European integration process, it can be observed that the European communities were built on a similar challenge posed to traditional decision-making processes, linked to national parliaments and governments. Unexpectedly, while the EU is confronted to similar critiques on creating non-accountable governance structures, the course of action chosen by European institutions in order to enable a higher degree of legitimisation of their own policymaking processes consists of creating and enabling governance networks in which participation is seen as the key indicator for success. This type of approach is, in fact, valid from a legitimisation perspective, having in mind that "legitimacy also depends on identity and interest-based citizen
2 The argument discusses the principle of EU’s legitimacy, not the performances of the institutions or processes.
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participation", while also acknowledging the need to address the "so-called 'weak interests': people with specific interests who do not have the resources to organize themselves as a group" (Bekkers et al., 2007, 45).
Chapter conclusions
The first chapter of this dissertation aimed to provide a critical perspective on topics related to the European Union’s (network) governance. In relation to this thesis' research question, this chapter provided a series of theoretical concepts that will be used in the following chapters, such as legitimacy or governance. The purpose of the chapter was, therefore, to conceptualise the terms analysed in the thesis. The research aimed to analyse how the EU managed to legitimise itself as a non-traditional polity, beyond the classical European approach on nationally-oriented statehood for the past centuries. It was highlighted that the European traditional understanding of the social contract, based on legitimacy and consent, has been mutated, adding a new dimension for European citizens. The EU has, therefore, a type of transitional legitimacy, which relies on its own Member States’ legitimacy and consent for its existence, while the respective Member States get their legitimacy and consent from their citizens. In this regard, this chapter argued that the EU relies on its state and their own demoi, in order to be able to legitimise its two-fold governance dimension. Furthermore, the EU has not been presented as a classical intergovernmental regime, but rather as a collective political system that has managed to get governance processes outside of the European nation-states and give them a transnational dimension.
The chapter further presented the shift from government to governance, a process that has marked an alteration from the unipolar system, based on political institutions as sole actors in charge of government, to a multipolar system, which includes a multitude of actors, both public and private. This shift is not present only at supranational level, but also within EU’s Member States and beyond, being a process partly driven by the neoliberalisation present since the last decades of the 20th century. It was indicated that neoliberalism has created a mutation of government rationality from the state to the markets, which has also been present at EU level. In this regard, this thesis argues that such a modification could lead to structural changes of the social contract itself, as governments are entitled to their prerogatives as long as they are legitimised by their peoples. The shift to governance raises a series of issues related to accountability, caused by the alienation of decision-making from the democratically-elected bodies; furthermore, this chapter also highlighted that not all interest groups have the ability
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to organise themselves and represent their agendas within governance networks, which might create an unequal degree of participation in the governance process (at both national and supranational levels).
The main theoretical approach of the thesis, network governance, was presented in this introductory chapter. Its main characteristic consists of the enablement of a specific policymaking environment that reunites different stakeholders from all sectors, who can contribute their knowledge into the policymaking process. Moreover, governance networks not only enhance knowledge intensive activities, but they also lead to knowledge sharing amongst members of a network and to an increased degree of openness and trust among partners, which remains a crucial aspect for the European Union. Furthermore, governance networks create a framework through which stakeholders at national level are brought at EU level, the Union thus bypassing national governmental institutions in the policymaking process.
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CHAPTER 2
GOVERNANCE NETWORKS IN THE EUROPEAN UNION: INSTITUTIONAL GOVERNANCE
Chapter overview
The second chapter of this thesis presents the institutional set-up of the European Union, as a supranational union of sovereign states. The main focus of the chapter, drawing from the conclusions of the previous chapter, will be to analyse EU's core institutional framework (European Commission, European Parliament, and Council of the EU) as the public side of governance networks established within the Union. The existence and evolution of the EU to its present form of a political and economic union has brought a series of challenges to the notion of statehood and sovereignty in Europe, thus creating the need of a novel institutional setting for international organisations, as opposed to the intergovernmental associative forms encountered within the UN or the Council of Europe. Bearing in mind the enhancement of a real union of states that work together on predetermined issues, the evolution of EU’s institutional framework has brought a series of issues such as transfer of powers, at times entirely, from national governments to supranational institutional bodies. Therefore, the present chapter aims to highlight the development of EU’s institutions over the past 60 years, while assessing the current state of affairs in the European Union. The chapter further analyses inter-institutional agreements as tools of public governance enacted by EU treaties, or even as an institutional governance network established by the Union. The main focus in this regard will be on the better law-making package, an inter-institutional agreement aimed towards the enhancement of policymaking at EU level.
Outline of EU’s institutional framework: brief historical and functional overview
The aftermath of the Second World War brought a change of paradigm in European politics and international relations. Europe had been, for a long period of time, the leading region in establishing international politics and rules of the international system, as well as having been the creator of nation-states after the Westphalia Peace in 1648. Therefore, the emergence of a supranational dimension has taken place in a historically state-centric space (Kaiser and Meyer 2013). Nevertheless, Europe had been a space of encounters for its many peoples and states, such as the multinational empires that had disappeared only decades before the creation of the
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first European Community (Coal and Steel, ECSC) in 1951. In their Societal Actors in
European Integration, Wolfram Kaiser and Jan-Henrik Meyer (2013, 2) argue that “various
societal actors involved in network-type relations with national governments and supranational institutional actors were often important for the formation of strategic political alliances, the definition of key political objectives and agendas”. This shows that, going further than the commonly understood need for European integration and the rapprochement of two historical rivals, France and Germany (Urwin 2007), it was an issue not only in the hands of key decision makers in the Member States to shape the evolution of the then Community’s institutional framework and its functions.
Key moments of European integration can be observed throughout the EU’s and its predecessors’ history, such as the introduction of direct elections for the European Parliament in 1979 or the accession of new Member States, enlarging the initial 6 country-community to a present day union of 28 countries. However, from a functional perspective, the first real redesign was made through the 1986 Single European Act (SEA), which made the then-European Community move “away from a more intergovernmental structure, strengthening the role of supranational institutions, the European Commission and most importantly the European Parliament (EP)” (Kaiser and Meyer 2013, 1). Further institutional redesigns followed with the adoption of the Treaty of Maastricht, in 1992, which brought the pillar structure of the Union, and the 2009 Treaty of Lisbon, which removed the pillar structure, while bringing a series of changes in terms of institutions’ functions. The Treaty of Lisbon “brought new law-making powers to the European Parliament and put it on an equal footing with the Council of Ministers in deciding what the EU does” (European Parliament 2016a). Simply put, the European Parliament has been given the so-called power of co-decision in most areas of EU law-making, thus implementing a two-chamber style system in the EU, with the Council being the upper chamber, which represents the Member States, and the EP the lower chamber, representing the European citizens.
While both the Council of the European Union and the European Parliament have a largely legislative role, the European Commission has emerged into the agenda setter and the institutional body in charge with legislative initiatives3. The Commission’s role in drafting EU law is of utmost importance, as it is required to assess “the potential economic, social and
3 However, after the enforcement of the Lisbon Treaty, the institutionalisation of the European Council has made
this body an agenda setter as well, reuniting heads of states and governments and the president of the European Commission, with the purpose of determining “EU’s overall political direction - but has no powers to pass laws” (European Union 2016a).
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environmental consequences” (European Union 2016b) its proposals might have. Beyond its central role in law-making, the Commission is also seen by academic scholarship as having “strong formal institutional as well as informal means to influence the dynamics and outcomes of European integration” (Schmidt and Wonka 2012, 1); furthermore, Schmidt and Wonka (2012) argue that there is an ongoing controversy regarding the Commission’s policy assessments, which might be influenced by its own institutional interests.
Nevertheless, the Commission’s leading role in being the major agenda setter in the EU has been challenged in recent years, after the introduction of a formal European Council and of its president position (Schmidt and Wonka 2012). While the Commission’s president has a seat in the European Council, he/she remains a singular member within an institutional body that reunites the heads of state and government from the 28 Member States and the president of the Council, thus strongly diminishing the role that the Commission has in terms of determining EU’s political agenda. A number of European Commission officials have also validated this position in interviews carried out in January 2016, arguing that the institution’s priorities have been strongly impacted by decisions taken within the European Council (interview 01 and interview 02, January 2016). Nonetheless, such a development needs to be assessed within the context of the last decade, when the Union was been confronted with a series of crises that had not been present previously (the economic and financial crises, the Eurozone crisis, the refugee crisis or the Brexit vote in June 2016). This particular timeline of events brings a sense of urgency and political commitment from the highest level in order to ensure prompt and, if possible, efficient response to the aforementioned crises; such an approach is also highlighted by William Wallace (Wallace et al. 2005, 488), who argues that "there are, on occasion, major turning points at which heads of government set out new priorities in the context of transformed external circumstances or reconsidered state preferences".
The institutional trio comprising the Commission, the Parliament and the Council represents the core of EU’s policymaking system, with the Commission drafting and proposing bills, and the Parliament and the Council having the task to adopt legislation. The current process is the result of a continuous power redistribution and institutional reconfiguration (Heriter 2012). Thus, the dynamics that exist within EU’s institutional framework describe a specific trait of bureaucracies: each institution aims to have more prerogatives and possess a higher degree of control when compared to other institutions. Furthermore, a particularity of the European institutional framework consists of its tension not
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only among the different institutions, but also between the supranational and the national levels. The functioning and development of EU institutions relies on competence delegation from national governments, which is a process in itself. Over the last decades, EU institutions have managed to obtain not only “increasing political authority”, but Member States’ governments have also agreed to the “gradual supranationalization of decision-making procedures, and the development of European competences beyond regulatory politics into core areas of statehood” (Cheneval et al. 2015, 1). This particular aspect highlights the existent dichotomy between the European Union and its Member States, which have granted the EU powers not only to regulate, but also to govern, through legitimacy and consent of national governments for EU’s supranational governance structures.
A key aspect of EU governance is being indicated by Helen Wallace (2005, 56) in
Policy-Making in the European Union, who argues that "partnership between the national and
the European levels of governance has become one of the marked features of EU policy-making". This approach towards EU governance highlights the mutual dependency of national and supranational levels regarding the networks they manage to establish in order to deliver policy responses to different issues. Therefore, the Commission's role in establishing governance networks needs to address its relation to national governments, as "a great deal depends on how the Commission works with national institutions" (Wallace et al., 2005, 56), while also taking into consideration the necessity to include as many social and economic stakeholders as possible, in order to make EU governance more transparent and more inclusive.
Therefore, the analysis of EU’s institutional framework needs to be addressed from a two-fold perspective. Firstly, the inner circle of EU institutions show certain tensions amongst themselves, as in most bureaucracies, in terms of setting the political agenda or having more power in the overall institutional architecture. Secondly, an additional tension can be observed when analysing the relation between the supranational and national levels, which is based on competence delegation. For this paper, the first dimension holds a higher degree of relevance, as it describes the relations that have been established among institutions, as well as the supranational governance and networks that have emerged throughout the Union’s evolution. The general understanding that this paper gives to the core institutional framework of the EU is highlighted below, in Figure 2:
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Figure 2 | EU core institutional framework4
As shown in Figure 2, both the European Council and the European Commission have the prerogatives to set the agenda in the EU - but only the European Commission has the formal role of effectively proposing new legislation. However, due to the European Council's membership structure - heads of state and government of EU Member States, the Commission remains the most lobbied institution in the EU, "a target for everyone who wants to influence the content of policy" (Wallace et al. 2005, 53). Therefore, while the European Council's role has been growing since the enforcement of the Treaty of Lisbon (Heriter 2012), the Commission's role in both EU policymaking and governance remains central. Furthermore, both the Parliament and the Council have clear prerogatives in adopting bills, yet their role in identifying the Union's priorities is strongly linked to the Commission's work programme and, to certain extent, to the European Council's conclusions and recommendations.
Inter-institutional agreements as public governance tools in the EU
The institutional framework of the European Union, as described above, shows certain particularities when compared to national institutional architectures. Given its complex web of institutions and prerogatives, as well as the constant need to take into account the needs of a diverse set of Member States and national frameworks, the three core institutions of the EU,
4 The representation above does not imply a subordination relation between the European Council and the other
three institutions; it describes the European Council’s overarching role in determining the political agenda for the Union, as foreseen in the Lisbon Treaty.
European Commission
European Council Setting-up the EU's political agenda
Main legislation initiator European Parliament
Council of the EU EU legislative co-deciding bodies
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as seen by this thesis, are entitled to work together in order to deliver better results. As presented at the beginning of this chapter, this thesis sees inter-institutional agreements (IIAs) as tools of governance, representing the public component of governance networks established within the EU.
The Treaty on the Functioning of the European Union explicitly foresees, as opposed to former treaties, according to article 295, the possibility for the European Parliament, the Commission and the Council to "conclude interinstitutional agreements which may be of a binding nature" (OJ C 326 2012). The indicated article mentions that the institutions "shall consult each other and by common agreement make arrangements for their cooperation" (OJ C 326 2012). Therefore, the institutions are entitled to establish their own institutional arrangements, in line with the treaties, as a means to enhance their work. Although this treaty provision was introduced for the first time in the Treaty of Lisbon (2009), inter-institutional agreements have been enforced, under different denominations or forms, ever since the creation of the European Coal and Steel Community in 1952 (Hummer 2007).
The topic of inter-institutional agreements remains a rather uncovered area by academic scholarship, when compared to other governance tools in the EU. The existing research on IIAs shows that IIAs "present remarkable variety both in terms of denomination and form/procedure, as well as regarding their substantial content" (Hummer 2007, 47). Their role has been described as "filling the gaps as a response to the Treaty's incomplete contract, in a process labelled as 'informal constitutionalisation'" or as contributing to the improvement of "the quality of law, transparency and democracy in the EU" (Cini 2013, 1143-44). Research mainly addresses inter-institutional agreements in terms of whether they "are conditioning instruments for running the EU more efficiently, more transparently, and more democratically" (Slominski 2007, 2). In this regard, the impact that IIAs have on European governance is presented as both a hypothesis and a counter-hypothesis (Puntscher Riekmann 2007, 5): IIAs can be seen as either enhancing EU's democratic quality, especially for the empowerment of the European Parliament, or as increasing EU's democratic deficit, by adding up new layers to "the already highly complex institutional set-up of the Union". Puntscher Riekmann (2007) further argues that, while IIAs could be seen as being 'unconstitutional' or 'sub-constitutional', they have a rather positive effect on EU's overall democratisation, as they are mostly beneficial to the European Parliament, the only institution in the EU whose members are directly elected by EU citizens. The Parliament would, thus, (generally) get more powers within IIAs, as empirical evidence shows.
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The existing research on the topic defines IIAs as "any informal or semi-formal bilateral or multilateral agreement involving two or more EU institutions" and as "a useful instrument of EU meta-governance" (Cini 2013, 1145). While there is no official database operationalised by EU institutions on IIAs over the years, the Austrian Academy of Sciences' Institute for European Integration Research (2005) drafted a list of IIAs between 1958 and 2005, revealing a number of 123 of such agreements between two, three or more institutions at EU level (the complete list of indexed IIAs, with data as recent as 2005, is available online at https://eif.univie.ac.at/downloads/projekte/IIA.html). Most of the IIAs included in this research refer to "budgetary matters, legislative procedures, interinstitutional relations, and comitology" (Hummer 2007, 52). This reveals that, for the first 50 years of their existence, European institutions mainly worked together on areas that required not only consistent levels of cooperation, but also a shared understanding of how the European institutional landscape should look like. Christiansen (2001, 765) argues that the good inter-institutional cooperation among the Brussels-based institutions can be explained through three explanations: "first, a shared allegiance as civil servants of the EU; second, experience of working within a common bureaucratic culture, and, third, the presence of an epistemic community of experts in the highly technical matter of EU policy-making". These explanations indicate, as Michelle Cini (2013, 1146) puts it, that "shared institutional values" are, in fact, "a driver for inter-institutional cooperation".
IIA focus: analysis of the 2016 inter-institutional agreement on better law-making
When the European Commission’s current College of Commissioners took office in 2014, its president, Jean-Claude Juncker, made ‘democratic change’ one of the cabinet’s ten priorities. Better regulation or law-making has a central role within this specific priority, the Commission announcing five topics on which it would work in order to deliver it: strengthening preparation through a broader contribution to legislative proposals, improving consultation through a better management and revision of EU laws, ensuring that EU laws are ‘fit for purpose’ through the propose IIA on better law-making, increasing cooperation, and ensuring quality (European Commission 2016a). Half a year after assuming office, the Commission presented its proposal on a new IIA on Better Law-Making, in May 2015. This IIA would come to replace the existing IIA on Better Law-Making since 2003 (European Parliament 2016b). The 2003 IIA (OJ C 321 2003) was drafted in accordance with other older inter-institutional agreements, such as the IIA on common guidelines for the quality of drafting of community
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legislation (OJ C 73 1999), the IIA on accelerated working method for official codification of legislative texts (OJ C 102 1996) or the IIA on a more structured use of the recasting technique for legal acts (OJ C 77 2002). More importantly, the 2003 IIA on better regulation came after the adoption of the 2001 White Paper on European Governance, which had laid out the principles of governance in the European Union.
Roughly one year later after initiating the revision of the 2003 IIA on Better Law-Making, in April 2016, the three signing institutions adopted the IIA, a 14 page, much more detailed document, which underlines the nature of the relationship between the three institutions on producing legislation in the EU (OJ L 123 2016). The IIA on better law-making is designed as a non-legislative act that expresses, in its beginning, the “equality of both co-legislators as enshrined in the Treaties” (OJ L 123 2016, 1), while also acknowledging the role of Member States’ national parliaments. Furthermore, the IIA states that the institutions, when setting the agenda, will assess “the potential ‘European added-value’ of any proposed Union action, as well as an assessment of the ‘cost of non-Europe’ in the absence of action at Union level” (OJ L 123 2016, 1). The approach reveals that, while the three EU institutions are consolidating their cooperation for delivering better policy results through the adopted IIA, they acknowledge, at the same time, the need to address democratic deficiencies that EU policymaking might have. Reckoning the role and responsibilities that national parliaments have when adopting laws at EU level further strengthens the parliamentary dimension at both national and supranational levels, already stipulated in the EU treaties. Moreover, the institutions recognize their obligation to determine whether their policy response is necessary, which exposes a certain degree of moderation as a response to the critiques the EU receives from its citizens. In this regard, the European Commission 2017 work programme5 includes a total of 21 key initiatives, dropping from 23 in both 2015 and 2016, and from an average of 130 per year during 2009-2014 (European Commission 2016b), thus confirming the aforementioned commitment to regulate less extensively at EU level.6
The main goal of the IIA is related to the institutions observing “general principles of Union law, such as democratic legitimacy, subsidiarity and proportionality, and legal certainty” (OJ L 123 2016, 2). It is also explicitly stated that “public and stakeholder consultation, ex-post evaluation of existing legislation and impact assessments of new initiatives” (OJ L 123 2016, 1) will be tools used in order to ensure a better regulation in the
5 First Commission Work Programme to be enforced after the adoption of the IIA on Better Law-Making. 6 This affirmation is based on a strictly quantitative approach on the Commission’s legislative initiatives and not
