Jean Monnet Center at NYU School of Law


3. The White Paper and the Rights and Responsibilities of European Civil Society

The White Paper on European Governance10 is, perhaps, at its most revealing in its conclusion that `the Community method has served the Union well for almost half a century'.11 It is hardly the clarion call for radical change. However, at numerous points, the White Paper talks of the `reinvigoration' of the Community method or that, `the Union must renew the Community method by following a less top-down approach and complementing the EU's policy tools more effectively with non-legislative instruments'. However, in focusing upon reforming `the Community method' (i.e., policy-initiation by the Commission with legislative decision by the EP and Council, together with the Commission's role in the adoption of implementation measures), the White Paper itself struggles to cast its gaze beyond the EU institutional context.

Nonetheless, the corrective to this top-down tendency is the White Paper's call for the greater involvement of two constituencies of actors - (1) regional and local actors and (2) civil society. As regards the former, the White Paper identifies the need for a greater policy dialogue with sub-national actors as well as proposing more flexible implementation of EU policies through tripartite contractual relationships between the Commission, national and local government. What is not clear is whether this responsiveness to the sub-national tier of government is also intended to include broader participation of civil society actors in the policy-influencing or policy-implementing process at these levels. The lack of this sort of discussion points to the inadequacies of a working methodology which placed `civil society' and `decentralisation' in different conceptual compartments of the governance Work Programme. But, it is also symptomatic of a difficulty in extending the normative gaze of a `European' debate on governance into the national and sub-national spheres.

My concern here lies principally with the role constructed for civil society actors within EU governance. Beyond the adoption of ECOSOC's definition of civil society as an organised sphere of activity,12 the White Paper adds little to the conceptualisation of European civil society except the ambiguous statement that, `civil society plays an important role in giving voice to the concerns of citizens and delivering services that meet people's needs'.13 We shift from a construction of civil society as a sphere of communication and of discourse to one in which civil society provides for the material welfare of its citizens through its role as a service provider. To be sure, both constructions can be identified in the relevant literatures. But it is one thing to see civil society as reinforcing the democratic process and, therefore, giving strength and vitality to public institutions, and quite another to conceptualise civil society as a service-provider if that means the absence or withdrawal of public institutions from the task of providing for the material welfare of citizens.

The ambiguity continues with the difficulty in reconciling the statements that civil society's engagement with the EU provides `a chance to get citizens involved in achieving the Union's objectives and to offer them a structured channel for feedback, criticism and protest', while also suggesting that `participation is not about institutionalising protest. It is about more effective policy-shaping based on early consultation and past experience'. This point is quite important given that the rush to embrace civil society (whether by the EU or the WTO) in part arises because of the wide-scale protests which have attended meetings of the European Council, the WTO, the World Bank, etc. One might also take the Irish `No' vote as its own form of protest. The dilemma of whether to embrace dissent and to use it to reflect upon the nature of EU governance, or whether to shun `uncivil' society in favour of harnessing `civil' society towards the (unchallengeable) objectives of the Union becomes apparent. The resolution of the dilemma apparently lies in the harnessing of transnational civil society, while hoping that the citizens will increasingly grow to accept the EU, rather than protest against it, if they can be made to understand it better. The possibility that this might have precisely the opposite effect does not seem to have been contemplated.

The clear emphasis within the White Paper is upon EU-level civil society actors. It is the relationship between these transnational organisations and the EU institutions (more particularly, the Commission) that the White Paper envisages improving through structured processes of consultation. Moreover, the focus of the White Paper is not just upon structuring relationships with transnational civil society; it is more about managing the existing relationships of dialogue than it is about building new mechanisms. No one doubts that better-structured relationships between the Institutions and transnational actors is desirable, but, first, civil society's engagement with governance cannot be reduced to this assertion, and the lack of concern with a more multi-level or multi-dimensional European civil society is regrettable; and, secondly, one hardly needs a White Paper on governance to arrive at the conclusion that more structured consultation is desirable. What is not envisaged in the White Paper is that the Community method will itself be displaced by a transfer or sharing of governance activities with civil society actors (although this might be the result of the Open Method of Co-ordination or one of the possibilities of co-regulation discussed elsewhere in the White Paper). Instead, what is offered is structured `civil dialogue'.

Following up on the ideas presented in the Working Group IIa report,14 the White Paper proposes the compilation of an on-line database of European civil society organisations; the adoption of a (non-legally binding) Code of Conduct setting out minimum standards for consultation processes; and, where processes are well established, the possible use of `partnership arrangements'. However, the central message that emerges from the discussion of structuring consultation and dialogue processes is that `[W]ith better involvement comes greater responsibility'.15 This responsibility takes on different forms. For example, in indicating that the Commission will establish an on-line database of civil society organisations, the White Paper considers that, for listed organisations, this `should act as a catalyst to improve their internal organisation'.16 The introduction of a Code of Conduct is considered as providing standards which `should improve the representativity of civil society organisations, and structure their debate with the Institutions.17 Moreover, the White Paper is even more blatant in the idea that there is a quid pro quo for enhanced consultation rights when it comes to proposed 'partnership arrangements': `[I]n return, the arrangements will prompt civil society organisations to tighten up their internal structures, furnish guarantees of openness and representativity, and prove their capacity to relay information or lead debates in the Member States'.18 It is also noteworthy that, in its July 2001 Report, Working Group IIa considers that the use of `partnership arrangements' `obviously constitutes an incentive for the NGO community to organise themselves in pan-European structures'. These themes of the need to structure the civil society relationship through the imposition of responsibilities upon civil society actors as regards their internal organisation and representativeness (governmentalisation), while also pushing towards the Europeanisation and federalisation of organised civil society (transnationalisation) have developed as key frames through which the role of civil society is being constructed within the White Paper discourse.

That civil society organisations have responsibilities finds more general expression in the White Paper's view that civil society actors must also be subject to the principles of good governance set out in the White Paper, viz. openness, participation, accountability, effectiveness and coherence. Thus, the concerns with internal organisation, openness and representativity are the surface forms of this deeper desire to ground civil society in these norms of governance. While we expect that the exercise of public power will be conducted in the light of the values and principles associated with a normativised public sphere of decision-making, why and when should such principles attach to civil society?

If we think of civil society as largely a discursive, communicative or deliberative sphere, then any attempt to normativise civil society must primarily attend to the preconditions for discourse, e.g., freedom of speech and voluntary association; openness to plural voices and participation of actors within discourse; and the removal of barriers to inclusion or marginalisation. While, to some extent, obligations are placed on civil society actors, the thrust of this normativisation lies with extending rights to individuals and groups, normally to be enshrined in law while the state takes on certain responsibilities both negatively (non-interference with the autonomy and self-organisation of civil society) and positively (ensuring that the legal order upholds the rights of civil society while also attending to the barriers to the full enjoyment of the rights of citizenship). Duties may also be placed on governmental structures to provide funds for civil society actors both to provide the relevant infrastructure for civil society to develop, and, to prevent civil society discourse from reflecting only the interests of those with money. Curiously enough, the White Paper says little about the civil and political rights of civil society and makes no mention of funding.

But, in any event, the 'rights' which the Commission believes incur responsibilities are merely consultation rights which the White Paper itself is keen to ensure take the form of a non-legally binding Code of Conduct. The thrust of the approach, therefore, is less about the conferral of enforceable rights and more about the imposition of responsibilities that are suggestive of a governmentalisation of civil society in the sense of the use of rationalities and techniques through which civil society actors alter both their behaviour and expectations in order to facilitate the exercise of governmental power.

To be sure, once we begin to talk of civil society actors being involved more directly in the delivery of governance either alone or together with political institutions then such new modes of governance pose real challenges to how we have traditionally normativised government based on classical divisions between public and private law. But if all that is on offer is better consultation, then the emphasis upon the duties of civil society actors seems both misplaced and arrogant.

10 Above, n. 1.

11 Ibid, p. 34.

12 ECOSOC Opinion, The role and contribution of civil society organisations in the building of Europe (OJ C329, 17.11.99); ECOSOC Opinion, Organised Civil Society and European Governance: the Committee's contribution to the drafting of the White Paper (OJ C193, 10.7.2001).

13 Above n 1, p. 14.

14 Report of Working Group IIa 'Consultation and Participation of Civil Society':

15 Above n 1, p. 15.

16 Ibid, p. 15.

17 Ibid, p. 17.

18 Ibid, p. 17.




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