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We cannot derive any ready-made answers to new problem situations from historical retrospectives. But through them we can understand which problems they were originally meant to respond to, learn something about their later impact, and ascertain whether we are really operating with new concepts, merely rewriting old answers, or making up for past omissions. In general, all of these are true simultaneously - and this is the case for the White Paper, too. The following observations on the White Paper on European Governance' will concentrate almost exclusively upon the institutionalisation of regulatory policy in the internal market. This is not the White Paper's only theme, but an extraordinarily important one. It is a theme that has been of ever growing importance since the EEC's foundation, and dominates the everyday business of integration policy. The governance White Paper really does open up new horizons for this policy. But it also moves along old pathways, and up old blind alleys.37
The term governance that the White Paper uses as the key concept for the next phase of integration policy is undoubtedly a fashionable word with glittering connotations. But the term is not shapeless,38 and is, in fact, suited to marking integration policy developments and problem situations. The adoption of the governance concept by the White Paper takes account of the experiences and learning processes during and after the "completion" of the internal market, particularly, the irrefutable insight that the internal market programme required pro-active co-operation in increasingly wide areas, and that the dynamics of market integration necessitated the management not only of the complex economic implications but, increasingly, also of the social dimensions of European market-building. The governance concept refers to both activities and actor configurations. "Governance" is to be equated neither with the actions of governments and administrations, nor with law-making activities, nor the law implementing activities of authorities and courts. It is all this, "too". But it is a specific feature of modern regulatory policy that it builds, to a large degree, on knowledge available not within the administrative machinery but in society, which it is likewise dependent upon the management capacities of enterprises and non-governmental organisations. Regulatory policy can neither be reduced to the execution of the will of the sovereign by that sovereign's administrative bodies, nor can it be delegated ab ovo and in toto to non-governmental actors. The complexity of modern governance structures is a response to the problem situations of society and of the political systems.
So far so good. Jérôme Vignon39 is, moreover, right to bring these developments into connection with the characteristics of knowledge in the "knowledge society". This knowledge can, indeed, no longer be understood as "given" and accessible by the mechanisms of elected representation or by the concentration of specialist expertise; it is more adequately characterised as being "constructed" and renewed in a process of collective learning that draws support from social pluralism. Does Vignon also wish to suggest that the changes in the knowledge of the "knowledge society" and the associated reorganisation of decision-making processes do not indicate challenges but are already accomplishing a "profound mutation of democracy in the nations of Europe and elsewhere"?40 This sort of equivocation is certainly not intended, and would be refuted by the proceedings and reports of the "democratising expertise" working group.41 Everywhere, regulatory policy is dependent upon expert knowledge. But this knowledge is always fragmentary and frequently controversial. Experts must themselves pursue practical and normative discourses, and cannot supply the bodies dependent on their advice with objective truths. The organisation of regulatory policy has to take account of the fact that the political and administrative systems do not have the knowledge and control resources that need to be mobilised to solve the problems. Even within the nation states, as Wolfgang Schluchter observed as long ago as 1972,42 the administration has to admit that its "official authority" [Amtsautorität] is dependent on "substantive authority" [Sachautorität] which they cannot derive from its confidence to implement norms. Accordingly, official and technical authorities must engage in new linkages; governance structures in which both private actors and "civil society" participate in the "carrying out of public tasks" have to emerge. "Governance", instead of government and administration: this is the outcome - but also the problem.
The result and the problem have specifically European dimensions with which the White Paper deals, and a history which, in so doing, it continues and rewrites. German ordo-liberalism and its vision of ordered freedom have left little traces in the Governance White Paper.43 By contrast, the tradition of the organised economy and of functionalism seem to operate all the stronger - though, admittedly, even this is true only in a foreground sense.
Ipsen, one of the founding fathers of technocratic governance through the European (at the time: Economic) Community, had assigned the Community with tasks which he understood to be merely technical, - the solutions to which required "knowledge" while not being dependent on political preferences - conceived, so to speak, of the Commission, as a whole, as an "executive agency". Ipsen's assignment of "technical tasks" to the European bureaucracy is not identical with the institutional programme which, according to Majone, has to accompany the development of the internal market.44 Ipsen conceived of his "purposive associations of functional integration" [Zweckverbände funktioneller Integration] decades earlier than Majone did in his conceptualisation of the European Community as a "regulatory state". The internal market policy, the interplay of de-regulation and re-regulation, which Majone analyses, did not exist then - nor did the analytical tools of social choice theories that Majone uses. Certainly, both authors deal with tasks for which expert knowledge is indispensable, and both share the view that technically correct performance of the tasks requires the European institutions to be walled off from political influences. But Majone's regulatory state stands upon foundations which are more Anglo-Saxon than German: Majone's model is a "fourth branch of government", in which independent agencies are supervised by a judiciary which examines the transparency and fairness of the decision-making procedure and the compliance with the agency's legislative mandate, and not the substantive accuracy of decisions based on expert knowledge.45 Majone seeks to adapt this model to the EU context. Here, the non-majoritarian institutions of Europe and the majoritarian institutions of the Member States are to complement each other. The EU is to focus on regulatory policy in the technical sense, whereas distributional welfare state policies are to be dealt with at national level since it is only there that they can be legitimated democratically (in the last instance through majority voting).
The institutional programme sketched out in the White Paper fits these ideas terminologically in many respects. The Commission opts for new EU agencies entrusted with autonomous powers on the basis of a clearly defined mandate. Agency autonomy remains restricted to individual decisions which neither involve "political discretion" nor "complex economic assessments" (p 24).46 Such powers remain the province of the Commission, which, thanks to the new agencies, will be able to focus more on its "core tasks". "Executive agencies" is the name given to the new entities, elaborated in detail in the draft Directive of 24 April 2001.47 The term signals what the text substantiates in great detail. The Commission perceives itself at the top of the "administration" of the internal market, as though it were carrying out the will of a European sovereign, as if, to put it in the plastic language of American administrative law, it were acting as a mere "transmission belt"48 in a "unitary polity". In this administrative apparatus, the executive agency is but a sort of assistant to the Commission;49 despite their administrative autonomy, executive agencies are subject to strict control by the Commission, which, on the one hand, appoints the director and the members of the steering committee for the agency, and, on the other, lays down the content of the work programme. This model of market governance in the EU seems too simplistic in two respects. First, it seems to underestimate the diversity within the European polity, within which the "will" of some European "sovereign" all too often cannot plausibly be inferred from general framework legislation - even where that legislation claims to have decided upon the "essentials".50 Second, it would assign regulatory functions to the Commission which could hardly be effectively supervised by the European Parliaments and controlled by the judiciary. Both aspects militate in favour of a coordinating rather than a programming function of the Commission in the implementation process.51
Unsurprisingly, the existing agencies do not correspond to the White Paper's design.52 Nor do these agencies correspond neither toAmerican models or to Majone's concepts - they have neither "regulatory" powers in the legal sense, nor do they let themselves be treated as mere assistant institutions by the Commission.53 The agencies, as established so far, are, in their legal design, much closer to the committee system than their name suggests. Rather than an adaptation to the American model, they can be interpreted as a cure to specific deficits of the Community's regulatory machinery, namely the committee system. De facto, agencies are more clearly visible, better accessible and, in the "execution" of their mandate, more autonomous than comitology committees. The "European Food Authority",54 definitively set in motion in Nice, will certainly not fit the White Paper's blueprint. The new authority, says Recital 40 of the amended Commission proposal, is to secure the "trust of the community organs, the public and sectors affected". Were it to become an executive agency under strict Commission control, it could hardly achieve this objective.55 It will be instructive to observe the further development of this institution, first in the Official Journal and then in practice.
It is not the more or less recently set up new agencies but the long established committee system that is practically the most significant institutionalisation of regulatory policy in the internal market. Committees not only have the so-called "implementation" of community law framework regulations in their hands ("comitology"), but also act more comprehensively as venues for political processes and as co-ordinating bodies between supranational and national, governmental and social actors. And both, agencies and committees, are embedded in, and supervised by, semi-official and private policy networks.56
Functional and formal differences between agencies and committees are important, but, in a sense, different from what the legal language suggests. The European agencies do not decide autonomously on the market access of enterprises or the licensing of their products; instead, they collect information, and inform policy - they act as technocratic supplier firms to policy. Their semi-official status obviously opens them up to private/social interests and strengthens a technocratic, apolitical, autonomy-oriented self-perception. Neither their allocation to Commission departments nor their representation of national actors on the agency bodies seems to have changed anything here.
By contrast, the committees are supposed to act as principals and agents for not just the implementation of technocratic requirements but also the political and normative aspects of the completion and administration of the internal market. They often appear as "mini councils", venues where the logic of market integration has to be made compatible with social regulatory concerns and interests in the Member States. Less visible, but no less important than the split between agencies and committees, are the differences in the nature and intensity with which European institutions interact with the public, secure professional expertise and explore the interest definitions of private actors. This no longer has much in common with the way that traditional bureaucracies have defined their relationship with the public. It is particularly these agencies that have no formal decision-making powers (and, accordingly, look so weak legally) that prove to be highly active organisers of Europe-wide opinion-forming processes.
Agencies, committees, public and private networks - they are all institutional products - not planned "like that" - which, nonetheless, prove to be "essential". They represent what Joseph Weiler has branded the "underworld" of the internal market.57 And the White Paper, too, takes its distance from these hybrids: what is to be aimed at is a simple legislative procedure where Parliament and Council act as legislature, and the Commission is entrusted with "implementing" Community law. Accordingly, "the need to maintain existing committees, notably regulatory and management committees, will be put into question. [...] a review of existing committees would/will have be undertaken and their continued existence assessed. This assessment should take account of the need for expert advice for the implementation of EU policies" (p 31). Quite. Those advocating executive agencies under the aegis of the Commission cannot tolerate comitology. The White Paper is consistent in this respect.58 But is it also reasonable?
37 It should be emphasized once more (cf., note 1 supra) that this analysis deals only with the final text of the White Paper. It neither refers to the many documents produced during its preparation nor to the concluding reports of the 12 Working Groups. This is not just out of convenience. The apparent readiness to strive for new perspectives, which was apparent in the whole presentation of the White Paper project and throughout its elaboration, is still clearly visible in these reports. But the text which was finally adopted came as a surprise to those who had followed the working process, and certainly also to those who had undertaken major research efforts. Comitology is a case in point; cf., The European Institute for Public Administration, Committees in the EU system, http://eipa-nl.com/public/public_publications/current-books/WorkingPapers/ResearchPapers/chap_5.pdf.
38 Ph. Steinberg, Governance-Modelle in der Politikwissenhaft und Möglichkeiten Ihrer verfassungsrechtlichen Umsetzung, WHI Working Paper 6/99 - www.rewi.hu-berlin.de/WHI/. - The political science literature is by now enormous; for a particularly illuminating analysis of the origins of the term, cf., Ph.C. Schmitter, What is there to legitimise in the European Union... and how might this be accomplished?, Institut für Höhere Studien (IHS), Reihe Politikwissenschaft, Heft 75, Wien 2001, available also at http://www.iue.it/RSC/Governance/ and http://www.jeanmonnetprogram.org/papers/01/010601.html. - Often, and contrary to the use of the term here, `governance' is understood as denoting `the importance of cooperation and positive interaction between the public authorities in different spheres of responsibility and/or at different geographical levels' (X.A. Yataganas, Delegation of Regulatory Authority in the EU. The relevance of the American model of independent agencies, Harvard Jean Monnet Working Paper 03/01, at 6). That definition is not in line with the practice of regulatory policy and simplifies the issues at stake.
39 Governance and Collective Adventure, in O. De Schutter/N. Lebessis/J. Paterson, (eds.), Governance in the European Union, (Office for Official Publications, Luxembourg, 2001), 3.
40 Ibid.
41 Report of the Working Group "Democratising Expertise" (Group 1 b), accessible at http://europa.eu.int/comm/governance/index_en.htm).
42 W. Schluchter, Aspekte bürokratischer Herrschaft: Studien zur Interpretation der fortschreitenden Industriegesellschaft (1972; reprint Frankfurt, 1985), 145-176.
43 None other than competition policy is to remain in the Commission's domain: "Agencies cannot be given responsibilities for which the Treaty has conferred a direct power of decision on the Commission (for example, in the area of competition policy") (p. 31). This statement fits the Commission's concentration on itself that stamps the White Paper as a whole, but does not fit the institutional ideals of ordo-liberalism.
44 G. Majone, Regulating Europe, London/New York 1996, 284 ff.
45 G. Majone, The European Community. An "Independent Fourth Branch of Government?", in G. Brüggemeier, (ed.), Verfassungen für ein ziviles Europa, Baden-Baden 1994, 23 ff.
46 These are the formula used in the age old Meroni judgments, Case 9/56, Meroni & Co. Industrie Metallurgiche S.p.A. v High Authority of the ECSC [1958] ECR 133, Case 10/56, Meroni & Co. Industrie Metallurgiche S.p.A. v. High Authority of the ECSC [1958] ECR 157. The Meroni doctrine is on institutional balance within the Community system; it is not on the limits of executive or governmental [gubernative] powers as such. But even within its domain, the Meroni doctrine is based on outdated premises. Especially, the distinction between expert knowledge on the one hand and political discretion on the other, is much too simplistic in all fields of economic and social regulation. Cf., more systematically, CH. Joerges/H. Schepel/E. Vos, `Delegation' and the European Polity: The Law's Problems with the Role of Standardisation Organisations in European Legislation, in: J.H.H. Weiler/Margareta Wind (eds.), When High Courts Clash: National Resistance to European Supremacy - Rethinking European Constitutionalism, Cambridge: Cambridge University Press (forthcoming; available as EUI Working Paper in Law 9/99 and at http://www.iue.it/PUB/law_fm.html/pdf-file ).
47 COM(2000) 788, OJ C 120, 140-145.
48 R. Stewart, The Reformation of American Administrative Law, Harv. L. Rev. 88 (1975), 1671 ff., 1674 ff.
49 Section 3.19 of the explanatory memorandum: "an instrument assisting the Commission in discharging its management missions".
50 Cf. for an elaboration of these points M. Everson, The Constitutionalisation of European Administrative Law: Legal Oversight of a Stateless Internal Market, in CH. Joerges/E. Vos (eds.), EU Committees. Social Regulation. Law and Politics, Oxford 1999, 281 ff.
51 For an analysis of the European concept of `implementation', which comes close to this position see C. Möllers, Durchführung des Gemeinschaftsrechts. Vertragliche Dogmatik und theoretische Implikationen, Europarecht 2001:4 (forthcoming).
52 For up to date surveys, see E. Chiti, The Emergence of a Community Administration: The Case of European Agencies, CMLRev. 37 (2000) 309 ff.; E. Vos, Reforming the European Commission: What Role to Play for European Agencies', CMLRev. 37 (2000) 1113 ff.; G. Majone/M. Everson, Institutional reform: independent agencies, oversight, co-ordination and procedural control, in O. De Schutter et al. (n. 39), 129 ff.
53 COM(2001) 475; the Commission's announcements are promising: "Today, the DG Health and Consumer Protection website publishes new pages on the European Food Authority providing an overview of the ongoing legislative process for establishing the Authority, an update on its future mission and the scope of its activities, tasks and organisational matters, as well as information on the ongoing work of the Interim Scientific Advisory Forum", see http://europa.eu.int/comm/food/fs/efa/index_en.html.
54 COM(2001) 475 final. For a first evaluation, see F.D. Lafond, The Creation of the European Food Authority. Institutional implications of risk regulation, Notre Europe. European Issues No. 10 (November 2001), http://notre-europe.asso.fr/Probl 10-en.pdf.
55 Cf., the analysis by Buonanno/Maloney/Keefer, Politics versus Science in the Making of a New Regulatory Regime in Europe, European Integration online Papers (EIoP), Vol. 5 (2001) N° 12, http://eiop.or.at/eiop/texte/2001-012a.htm.
56 See Ch. Joerges/J.Falke (eds.), Das Ausschußwesen der Europäischen Union. Praxis der Risikoregulierung im Binnenmarkt und ihre rechtliche Verfassung, Baden-Baden 2000; Ch. Joerges/E. Vos (eds.), EU Committees (n. 50).
57 In an interview in DIE ZEIT, no. 44, 22 October 1998.
58 It is, in fact, surprising that the so-called open co-ordination method is presented in such friendly terms in the White Paper (n. 2, at 28 f.). This method is a response to the "multi-level nature of the migration phenomenon, multiplicity of places involved and the responsibility of Member States for the transposition of Community policy", as number 9 of the explanations in the Commission communication on the "open co-ordination mechanism for Community migration policy"[Com (2001) 387] confirms. This is persuasive, but does not change the fact that the open co-ordination method in no way fits the "Community method" which the White Paper (p. 10 ff.) wishes to strengthen.