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III. The lack of political parties as actors of civil society

As pointed out, the Commission tries to govern together with organised civil society in the form of interest groups. One is tempted to ask if this lives up to the self-imposed concept of involving the individual citizen? On the other hand, what are the alternatives? It seems hardly possible to involve 300 million Europeans. Thus, concentration of interests with the help of collective entities is certainly necessary. However, if one is ready to accept this, and one further conceptualises the EU concept of the "state" as an organisation to provide the framework for the democratic self-steering of an emerging European society legitimised by the (European) citizen⁸ - which is rightly suggested in the White Paper (p. 10)⁹ - an important omission strikes the critical reader. Throughout the whole White Paper, political (European) parties are not even mentioned once.

This is comprehensible if one constructs the citizens- or civil society as a structural replacement of traditional governing structures including political parties. Indeed, this seems to be the intention of some of the governance theories. The legitimacy crises of political parties throughout Europe might add to it.¹⁰ Another possible approach to understanding this omission would be to share the eminent German public law Professor Leibholz's concept of political parties as not belonging to civil society, but to the "Parteienstaat", and thus to the public sphere.¹¹ However, even in this case, (European) political parties should have been mentioned in some form by the White Paper, at least as part of the public sphere/community. Even if one, correctly in my view, considers the rigid differentiation between "state" and "society" as outdated,¹² political parties should have been mentioned as an association of individuals who would then be representatives of a public order permeating all aspects of life.

By not integrating (European) political parties, the White Paper jeopardises the possibility of addressing the legitimacy problem of the Union. One way to do this would be to foster politicisation of the Union.¹³ Political parties could do a great deal to help this happen.

This is not the place to negate the frequently diagnosed crises of political parties.¹⁴ Nonetheless, political parties still remain indispensable for the practical realisation of democracy, especially political opinion-building of the citizens and, as a correlation, for the transportation of the citizen's will to the representatives of society.¹⁵ This is recognised at European level by Article 191 EC. However, like Article 21 of the German Basic Law, it does not contain a functional attribution of a certain task to political parties. Instead, European Parties are a pre-requisite to fill the democratic principle with life - as laid down in Article 6 § 1 TUE.¹⁶ However, political parties can only fulfil their function as a transmission vehicle between citizens and representatives, as a powerful political entity capable of influencing politics, of giving a face to politics if there is a community-wide public debate taking place among the European citizens. Public debate, on the other hand, is generated and facilitated if there is polarisation within the political discourse.¹⁷ And who is best suited to provoke polarisation if not political parties? In other words, if the Commission involved political parties more, this would alleviate the democracy deficit, which, in reality, is a deficit of politicisation of the Union.

In order to follow this line of argument, one has, however, to accept a few assumptions.

• Simplification and polarisation should not be considered as problematical, as is often argued in literature.¹⁸
• Secondly, sometimes,¹⁹ governance is conceptualised as a denominator for self-referential (sub-) systems that can neither be influenced nor regulated through public decisions, nor given priorities. Clearly, the Commission did not adopt this theory. On the contrary, involvement of Civil Society is integrated only in the form of non-binding consultations. Even the plans for co-regulation in certain areas are very cautious. Co-regulation - a process through which "concerned parties" agree upon the best solution for regulation in their respective fields - is only to happen in areas in which the rule found is not to be applied uniformly in all Member States. In addition, such a mechanism is excluded in -"highly political" areas (p. 28). It remains unclear, however, why environmental problems are not highly political - amongst NGO's, there is suspicion that this area has been chosen in order to dilute environmental standards. Still, this cautious approach clearly shows that the Commission has not, in contrast to certain scholars, given up the idea of democratic self-steering of complex societies.²⁰ It does not pay enough attention, however, to the problem of how the connection of highly political questions to the citizens is to happen.
• Thirdly, directly aimed at the White Book, it is necessary to change the community method itself. Today, the Commission places great emphasis on consensus even before a decision is taken. In order to achieve politicisation, this has to be changed - possible alternatives have to be discussed. publicly and discursively. Only then should a decision be taken.

This would alleviate today's all too prominent educational approach of many "European enthusiasts" towards European integration. This approach is characterised by the permanent need to explain the benefits of "Europe" to the citizens. If a more political Union is created, a Union of competing political concepts, the citizen will, of necessity, realise the importance of Europe.

Today's "educational approach" leads to an inter-institutional consensus, eager only to present the positive aspects of European initiatives. Consensus before the adoption of a decision, however, asphyxiates public discourse and thus excludes the Union citizen.²² To give a concrete example, the controversy concerning the envisaged "take-over directive" has been widely-reported by national media. Despite this, it has, above all, been presented less as a political problem than as a power-struggle between the Parliament and the Council because Germany eventually changed its position.²³ The White Paper, too, adopts this approach by portraying the function of community organs as unitary, functional entities. This functional approach cannot meet today's challenges of an increasingly complex and multi-dimensional Europe.

It is true that the White Paper encourages the European Parliament to initiate "public debates about the future of the European Union" (p. 39). This is to be supported. However, the European Parliament already discusses the future of the Union in many debates - which is, unfortunately, not widely recognised by the public. This shows the need to engage in the proposed direction.

8 Ingolf Pernice, Europäisches und nationales Verfassungsrecht, VVDStRL 60 (2001), 149 (at 164); Ibid., Kompetenzabgrenzung im Europäischen Verfassungsverbund, JZ (2000), 866 (at 871); Jo Shaw, Postnational constitutionalism in the European Union, Journal of European Public Policy, (1999), 579, (at 587).

9 Disagreeing Fritz Scharpf, European Governance: Common concerns vs. the challenge of diversity, http://www.jeanmonnetprogram.org/papers/01/010701.html, 7, who argues that "the powers that the Union is able to exercise were either delegated by the governments of the Member States or were usurped by the Commission and the Court ...".

10 Franz Walter, (op. cit. note 6), 45.

11 G. Leibholz, Verfassungsrechtliche Stellung und innere Ordnung der Parteien, 38. DJT (1950) C 9.

12 Horst Ehmke, Wirtschaft und Verfassung, (1961), 5; Horst Ehmke, Staat, und Gesellschaft als verfassungstheoretisches Problem, in: Festgabe für R. Smend, (1962), 24. Stephan Wernicke, Die Privatwirkung im Europäischen Gemeinschaftsrecht, (2002) (forthcoming), Chapter 7 esp. at V. 2).

13 Cf., J. H. H. Weiler, To be a European Citizen: Eros and civilisation, in: The Constitution of Europe, (1999), p 324 (at 329.). Paul Magnette, Can the European Union be politicised?, http://www.jeanmonnetprogram.org/papers/01/010901.html , especially at 6.

14 Cf., for ex. Hans Herbert von Arnim, Vom schönen Schein der Demokratie, (2000), 144.

15 Rainer Stentzel, Der normative Gehalt des Art. 138 a EGV - Rechtlicher Rahmen eines europäischen Parteiensystems?, EuR (1997), 174 (at 179); Dimitris Tsatsos/Gerold Deinzer, Keine Europäische Integration ohne Europäische Politische Parteien, in: ibid., Europäische Politische Parteien, (1998), p. 13 (at 21). For a dissenting opinion, see Marc Reichel, Das demokratische Offenheitsprinzip und seine Anwendung im Recht der Parteien, (1996), p. 32.

16 Rainer Stentzel, (op. cit. note 15) p. 180; cf., Dieter Grimm, Politische Parteien, in: Handbuch des Verfassungsrechts der Bundesrepublik Deutschland, 2. ed. (1995), p. 599 (at 616.); Martin Morlok, Europa vor der Wahl: Rechtlicher Status und politische Rolle der Parteien im Entscheidungsprozeß der EU, http://www.rewi.hu-berlin.de/WHI/ deutsch/ fce/ fce4 99/index.htm, para. 39.

17 Paul Magnette (op. cit. note 13), 6 . Nona Mayer; Pascal Perrineau, Les comportements politiques, 1992.

18 Karl-Albrecht Schachtschneider, Res publica res populi, (1994), 662.

19 Niklas Luhmann, Politische Steuerung: ein Diskussionsbeitrag, PVS 30 (1989), 4 (at 7); James Rosenau, Governance, order and change in world politics, in: ibid.;Ernst-Otto Czempiel, Governance without government: order and change in world politics, 5; cf. Kenis/Schneider, Verteilte Kontrolle, Institutionelle Steuerung in modernen Gesellschaften, in: ibid., Organisation und Netzwerk, Institutionelle Steuerung in Wirtschaft und Politik, (1996) p. 9 (at 18). Karl-Heinz Ladeur, Towards a Legal Theory of Supranationality - The Viability of the Network Concept, (1997) ELR 3, 33.

20 Jürgen Habermas, Jenseits des Nationalstaats? Bemerkungen zu Folgeproblemen der wirtschaftlichen Globalisierung, in: Beck, Politik der Globalisierung, (1998), p. 67 (at 83).

21 For a definition of European Political parties. Martin Morlok, (op. cit. note 16), para. 54.

22 Paul Magnette, (op. cit. note 13), 7; Martin Morlok (op. cit. note 16), para. 28, 42.

23 This is reflected as well by the statements of the Commission, see Commissioner Fritz Bolkestein, EU-Nachrichten Nr. 25 (2001), 1.

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