Jean Monnet Center at NYU School of Law


1. Critical account

A close reading reveals that the White Paper has three main objectives: (1) to redress the institutional balance in favour of the European Commission, (2) to redesign rules and procedures to enhance efficiency in policy formulation and implementation, and (3) to put even more emphasis than in the past on openness, transparency, and participation.

Considering the context of the publication of the White Paper, it is not surprising that it reflects the institutional interests of the Commission. The central message is that a return to the "Community method" will promote the quality of European governance and that this, above all, implies giving the Commission a more prominent role in EU policy formulation and implementation. A critical assessment has to take issue with the assumption that, given the context of the present and future conditions, this role ascription is still appropriate.1 My argument is that the propositions of the White Paper are derived from a deficient analysis of the nature of European politics and a technocratic understanding of political legitimacy. In order to prove my point, I will provide evidence that the White Paper argues in favour of redressing the institutional balance (1.1), is biased in favour of efficiency and effectiveness (1.2), and reflects an understanding of `good governance' that neglects basic principles of democratic legitimacy (1.3).

1.1. Redressing the balance of power between EU institutions

When reading the White Paper carefully the plea to "revitalise the Community method" (WP 29), demanding that "(e)veryone should concentrate on their core tasks" (WP 29), amounts to the strengthening of the Commission. In part, it is an endeavour to regain lost ground, in part it is an attempt to expand and even redefine the constitutional role of the Commission.

I do not want to review the propositions in detail, but instead wish to give a short summary:

(1) choice of policy instruments:

Concerning legislation, the White Paper reveals a clear preference for the use of regulations and `framework directives'. Regulations exclude any further interference by national parliaments (and, in this way, indirectly by national governments) because there is no transposition into national legislation. `Framework directives' look attractive because they are considered to be `less heavy-handed, offer greater flexibility as to their implementation, and tend to be agreed upon more quickly by the Council and the European Parliament' (WP:20). The efficiency of the decision-making process is a major concern2 and, with this objective in mind, it is logical that the White Paper goes on to say that `(w)hichever form of legislative instrument is chosen, more use should be made of `primary' legislation limited to essential elements ...'. The technocratic bias is exposed by the subsequent statement which circumscribes the respective roles of the legislative bodies (the Council and the Parliament) and the Commission `... leaving the executive to fill in the technical detail via implementing "secondary" rules' (WP 20).

The objective of regaining lost ground is evident in other propositions, too. The co-decision procedure has brought the Council and the European Parliament more closely together. Under the given time constraints and faced with the difficult task of managing a complex negotiating system, bi-lateralism creeps in, leaving the Commission to be the odd man out and re-writing the Commission's proposal. The White Paper supports "early agreement", i.e., concluding the decision-making process on the first reading, but insists on the Commission's participation. And in the event that the agreement between the Council and the European Parliament threatens to downgrade the Commission's proposal, the White Paper suggests that it should make use of its right of withdrawal. Moreover, the White Paper advocates that the Commission should be freed from comitology control and that executive regulatory activities should, whenever possible, be delegated to EU agencies (preferably under the control of the Commission). When it comes to devising new tools of policy-making and policy implementation, the proposition, again, entails the expansion of the European Commission's range of activities. (Héretier 2001).

At first sight, all these propositions make sense and their case is well-argued. But under closer scrutiny, the evolution of the living constitution is more promising both in terms of democratic legitimacy and decision-making efficiency. Let us take the case of the new co-decision procedure for example. Upgrading the European Parliament's decision-making power and introducing time-limits have been introduced in order to diminish the democratic deficit and avoid gridlock. Therefore, good normative reasons and sound procedural reasons support closer collaboration between these two institutions. On what grounds should this development be redressed? What has the Commission to offer in terms of legitimate reasons and procedural efficiency to support its claim to have a greater say in the game?

Even when the Commission's original proposal is watered down - which certainly amounts to a frustrating experience - would it be legitimate for the Commission to withdraw its proposal and, in this way, delay the decision-making process and impose its own will on the European Parliament and Member State Governments? The same argument holds true for the Commission's desire to have a greater say in formulating regulations. On what grounds should the Commission have a legitimate right to decide on `secondary rules'? The Commission is the guardian of the Treaty, i.e., of a political programme negotiated by Member States, not the guardian of a self-proclaimed "European" interest. Consequently, in my assessment, the White Paper is not just over-ambitious in defining the Commission's role, but also heading into the wrong direction. I attribute this ill- perceived strategy to a mistaken perception of the nature of EU policy-making.

1.2. The White Paper's emphasis on efficiency and effectiveness

The legitimacy of the EU is mainly based on "output legitimacy". For decades, European integration has been associated with delivering welfare and peace and has, as a consequence, enjoyed broad popular support. Today, internal peace is no longer at stake and the single market is a well-established reality which is rather associated with unwanted pressures on individual welfare than with tangible improvement of material benefits. The advancement of European economic and monetary union is perceived to be an instrument of increasing competition which threatens to dismantle the national welfare state.

Public opinion polls give evidence that European integration has become an élite affair. Governments are pushing a reluctant public to accept their decisions both on Europe and in Europe. In view of this context, I challenge the White Paper's emphasis on efficiency and effectiveness. We have to take account of the fact that European governance is a highly political affair. Even when governments prefer to work together in order to take advantage of the superior problem-solving capacity of common action, the contents of this common action is bound to be conflict-ridden. Similar problems in the individual Member State are not necessarily common problems. And above all, problem-solving strategies are not self-explanatory. They have to meet quite diverse normative and factual preferences. What representatives of EU institutions consider to be an adequate policy may not necessarily match the expectations of the EU citizens.

Hard choices have to taken, and they have to be taken on political grounds. On most issues, policy-making is a matter of choice. Decision-makers have to choose between competing preferences and decide in favour or against well-founded interests and long-cherished ideals. This truism is not at all reflected in the White Paper. Instead, it reads as if policy-making amounts to little more than an effort in co-ordination and accumulation of the necessary expertise: the Member States are blamed for holding up the legislative process (WP 5) and for insisting on `an unnecessary level of detail' (WP 18) in EC legislation. The remedy proposed is `investment in good consultation' (WP 20) and to leave it to the Commission `to fill in the technical details' (ibid). The promise is that this `may produce better legislation which is adopted more rapidly, and easier to apply and enforce" (ibid). No one would object to "better legislation" - but the choice is not between the bad and the better, but between alternative options. There are different preferences, different criteria of evaluation and, last but not least, distributive and re-distributive effects that have to be taken into account.

When Member States are not willing to "speed up legislation" and continue to amend detailed procedures when transposing directives into national law, they do not do it out of idiosyncratic inclinations. On the contrary, they respond to, or anticipate, the problems that their citizens are facing, which will finally induce them not to comply. Politics is not a truth-finding exercise - it does not look for the "one best solution" which could be provided by expert knowledge. Expert consultation very often just reproduces the conventional wisdom held by an epistemic community, and is hardly ever free of a political bias.

Governments may, indeed, be captured by partial interest groups, but the Commission itself is faced with `capture'. Partial, but powerful, interests aim at including the Commission in a `winning' coalition of advocacy. What are the controlling mechanisms at national and European level to avoid such `capture'? At national level, governments have to run for re-election and convince the electorate that they have not traded the common interest for the privileges of a small group. Such controlling mechanisms are absent at EU level.

Again, the whole story boils down to the question of the Commission's legitimacy to take the lead. European governance is the exercise of power. Power is exercised in a different way and sometimes with different means than in Member States, but it is still taking arbitrary decisions that affect peoples life. Thus, it has to be legitimated. Legitimacy is needed both for normativeand for functional reasons because illegitimate rule breeds political instability.

1.3. Openness, transparency and participation: the principles to assure good governance

"The goal is to open up policy-making to make it more inclusive and accountable. A better use of power should connect the EU more closely to its citizens and lead to more effective policies." (WP 8)

This is just another example of the White Paper's neglect of conflict of interests and the dialectic of policy-making: Openness and inclusiveness will most likely give voice to competing interests which, in such a heterogeneous setting as the EU, will be difficult to reconcile. The most pertinent question, namely, how to manage political reconciliation effectively, is not dealt with in the White Paper. Combining openness with inclusiveness may not lead to more effective policies, but to a blockage of all or any policy output.

Furthermore, when talking about the principles of good governance, the concern should not just be for the smooth functioning of the system, but also for the normative quality of European governance. Legitimacy is, or at least should be, at the core of any deliberations about the future of European governance. The White Paper refers to five principles of European governance which come close but yet fail to meet the established consensus of what actually constitutes `legitimate governance'.

Openness in terms of improved transparency is a prerequisite for public accountability, and openness in terms of better access to decision-making bodies is a pre-condition for political participation. Participation and accountability are two core elements in any democratic system. The way in which both categories are introduced in the White Paper is, however, disappointing. `Wide participation' is a vague concept that leaves out a clear cut commitment to the two essential elements that turn participation into a democratic device:

(1) equality: i.e., the equal chance to participate (or at least institutionalised mechanisms for a representative selection of participants), and
(2) reliability: i.e., a commitment to "binding agreements" on the part of decision-makers; without such a commitment "participation" is just an opportunity to raise a voice without of promise of it being heard.

The concept of accountability is treated in an equally disappointing way. Accountability has to be more than what is written in the White Paper. It is not sufficient to have decision-makers simply `explain and take responsibility' for what they do (WP 10). In a democratic system, accountability is synonymous with institutionalised mechanisms to sanction unwanted behaviour.

Indeed, the European Union's `legitimacy today depends on involvement and participation' (WP 11) - output legitimacy has to be supplemented by input legitimacy. But involvement, participation and accountability have to be organised in such a way that they meet the criteria of democratic standards. We should not lower our democratic standards just because it is difficult to meet them in the European Union.

Unfortunately, the White Paper does not address the question of equal and effective participation nor of institutionalised accountability. The proposal for change for "better involvement" (as the headline reads, WP 11) is - apart from normative reasons - disappointing with respect to practicability: there is a long list of potential to be involved and there are innovative ideas such as `on-line consultation through the inter-active policy-making initiative' (WP15). However, I find it difficult to take the promise `to consult better on EU policies' (WP 16) seriously when the obvious problem of how to tackle both the information overload and the delicate problem of selecting from among the advice given is not even mentioned. Even today, approximately as many interest group representatives are working in Brussels as civil servants are working for the Commission. The comment of an experienced lobbyist that "ear-time is scarce" is absolutely to the point. How will the Commission and other EU institutions manage an exploding demand for interaction?

1 Scharpf's harsh criticism of the White Paper originates from exactly from the neglect of contextual conditions: "...the White Paper is generally not interested in discussing the substantive problems confronting the EU and its Member States at the present time - and this is an omission with serious consequences for its definition of governance problems, and even more so for the effectiveness and legitimacy of their proposed resolution." (Scharpf 2001:3)

2 The proposition is made under the headline "better and faster regulation".




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