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What does emerge from the reports is the idea of a democracy based upon institutional balance, which has the other salient features considered above. What then should we make of this conception of the EC? What do we think of the idea in normative terms?
Some may well see it as a fudge, a useful piece of political rhetoric which each of the institutions will imbue with its own chosen interpretation. On this view the idea of a democracy built around an institutional balance is simply a device which enables the Community to move forward in an incremental manner, without ever really resolving the issues of democracy and legitimacy which lie at the heart of the debate about its future.
Another view is, however, possible. This is to take the idea of a democracy based upon institutional balance seriously. To do so means not simply accepting that some such outcome might well, as a matter of fact, emerge from the IGC. It means taking the idea seriously in normative terms, and inquiring whether there may not be something to this vision of democracy. This inquiry should not be foreclosed merely because the idea has been developed for reasons concerned with political accommodation between the major players in the Community enterprise.
The very idea of balanced government or balanced constitutionalism is, in one sense, self-evident, a proposition on which all people can agree. An attachment to this ideal can be found in many more specific species of constitutional ordering, ranging from that adopted in the United States, to that which exists in certain continental countries. To rest here would, however, not be to advance our inquiry very far. Nor could it be said to have provided us to any significant degree with a normative foundation for the legislative structure of the EC. We need to press beyond these shallow beginnings if progress is to be made.
Attention to political and intellectual history will reveal, however, that the idea of institutional balance has both a rich history and an important substantive meaning. It was one of the central elements in the republican conception of democratic ordering, another being the idea that democratic deliberation should be designed to achieve the public interest rather than narrow sectional desires. These twin pillars of republican thought are, as we shall see, connected. They are also, it will be argued, of relevance to the pattern of authority existing within the EC.
In historical terms one important expression of the first of these ideals, institutional balance, was that the form of political ordering should encapsulate a balance between different interests, which represented different sections within civil society.[35]
It should be stressed, as stated at the outset, that this democratic vision had an important place within European political and intellectual history. Thus the concept of institutional balance was an important part of republican discourse in the fiftheenth and sixteenth centuries,[36] shaping the desired structure of government in the Italian republics, exerting later influence in England and the emergent United States.[37] Institutional balance was perceived as a necessary pre-condition for the realisation of the second principal tenet of republican thought, that decisionmaking should serve the public good rather than narrow sectional self-interest. This link was forged in two related ways.
In negative terms, the existence of the proper institutional balance would serve to prevent tyranny, in itself an extreme manifestation of sectional self-interest. In positive terms, such a balance would help to ensure a deliberative democracy within which the differing 'constituencies' which made up civil society would be encouraged to treat their preferences not simply as givens, but rather as choices which were open to debate and alteration.
Republican thought is associated in particular with the Italian republics in the fifteenth and sixteenth centuries. Thus as, Skinner relates, the Florentines of the sixteenth century began to ask what made it possible "for the Venetians to combine a no less peaceable regime with a far more extensive system of political liberties"[38] than that which existed in Florence itself under the Medici. The conclusion reached by Gianotti was that this combination of liberty and security could be attributed to two causes: one was the balance within government of the one, the few and the many; the other was the elaborate voting system which helped to ensure that "every magistrate is chosen and every political decision taken with the object of maximising the common good over factional advantage."[39] This conclusion was echoed by many others during this period.[40] Florentine writers made major contributions to the development of these ideas, particularly in the period after the return of the Medici in 1512. Giannotti and Guicciardini were two of the prominent thinkers during this period. Perhaps the most major contribution was, however, made by Machiavelli. This was the Machiavelli of the Discourses rather than The Prince. Whereas in The Prince the main theme had been the maintenance of security, in the Discourses centrality was accorded to liberty.[41] Liberty was felt to be best preserved under a mixed form of republican governance, although it is also true to say that the Florentine writers disagreed about the precise nature of this mix, with preferences varying as between more populist and aristocratic forms of mixed government.[42] Venetian constitutional practices were studied in detail in order to devise the best machinery of government.[43] Considerable attention was also focused upon the way in which liberty could be lost. Corruption was perceived to be the principal danger, and this was taken by Machaivelli to connote "a failure to devote one's energies to the common good, and a corresponding tendency to place one's own interests above those of the community."[44] The exclusion of the people from the business of government rendered such corruption all the more likely.[45]
In England, to take but another geographical example, republican thought was developed by Harrington who stressed the ideal of the balanced republic, within which the common good was always to be preferred to pursuit of particularistic interests within society.[46] It was republican thought which provided the express framework within which Blackstone theorised about the nature and distribution of power within society.[47] Blackstone recognised that there were differing interests within society and drew upon the republican division into the one, the few and the many. The 'one' was represented by the monarch, the 'few' by the nobility in the Lords and the 'many' by the Commons. The essence of tyranny was, for Blackstone, the situation in which one component part of this ordering attained dominant power over the other two. Liberty could only be properly secured if there continued to be the proper institutional balance between these constituent parts, and he went to some lengths to describe how such a balance operated in England at the time.[48] Whether he was correct in descriptive terms is no part of the current inquiry. What is important is the way in which the desired distribution of power within civil society was envisioned and conceptualised.
It can be accepted that the particular application of institutional balance advanced by, for example, Blackstone is of limited utility to our present inquiry for both temporal and conceptual reasons. In temporal terms we are, after all, two hundred years further on. In conceptual terms the differences are even more marked. The present roles of the monarch, Lords and Commons in society bear little relation, either descriptively or normatively, to those which were felt desirable to our constitutional predecessors. Our very ideas of democracy have changed markedly with the acceptance of the universal franchise, and the consequential emphasis on the allocation of power to those who are democratically elected. While Blackstone's particular application of republican thought may be of limited utility this does not, of course, mean that the general tenets of this normative political theory are in any way redundant. They can, as we shall now see, help us when considering the distribution of authority within the EC.
Let us accept that the EC is neither a super state, nor that it can any longer be regarded as akin to other forms of intergovernmental ordering. Let us accept also that labels such as federal or confederal are only of limited utility in evaluating the nature of the Community. What is nonetheless undeniable is that it has now reached the stage of development at which issues concerning democracy and legitimacy have come to the fore. In deciding how to resolve these issues we should not be overly constrained by analogies which are drawn from either the traditional nation state, or paradigmatic international agreements.
If we free ourselves from these constraints then we can begin to see the utility of republican thought and how it might operate in the present context. The essential argument can be put quite shortly. The empirical information considered in the preceding section reveals the emphasis placed upon the idea of institutional balance within the Community. The rationale for the centrality accorded to this idea strikes a direct chord with the historical application of republicanism: the necessity to create a stable form of political ordering for a society within which there are different interests or constituencies. In the present context the interests are primarily those of the Council, EP, and Commission, but we should not forget the national parliaments and regional bodies. The empirical data also shows the importance attached within the EC to the actual division of legislative authority. It will be argued that the resulting schema serves both to satisfy the demands for participation in the legislative process by these differing interests, and also that this allocation of power can help to foster the passage of legislation which is designed to achieve the general good of the Community. This argument must now be more fully justified.
It is accepted by the major institutional players that the European Parliament is deserving of power within the system, by virtue of being directly elected by citizens of the EC. The gradual extension of the EP's powers in the legislative process bears testimony to this.[49] If the co-decision procedure is indeed generalised to all Community legislation then the EP will come close to attaining co-equal status in the legislative process with the Council. This would, in the words of the Commission, "be a natural step in the process of enhancing the democratic legitimacy of the Union", and "establish the twofold legitimacy on which the Community is founded, its States and its peoples".[50]
The failure of the EP to obtain a power of legislative initiative, and the decision by the EP not to press for this power in the current round of Treaty revisions, is, however, also indicative of the limited consequences flowing from the direct democratic mandate. The reasons for this limitation are eclectic. They are in part a reflection of the fact that the EC is not perceived as a state; in part because to accord the EP such a power would unbalance the system in its favour vis-a-vis the Council; and in part also because of the perceived need to preserve the unique position of the Commission, so as not to compromise its role as guardian of the Treaties and 'engine room' of the Community.
The role accorded to the Council in the schema of institutional balance can also be defended, most fundamentally because the democratic legitimacy of the Community is founded upon its states as well as its peoples. The Council does, in any event, have an indirect democratic mandate, flowing from the fact that those who sit on the Council will normally be elected members of their own national executive. The powers of the Council can also be sustained on the ground that the Community is based on an international agreement. While it may be accepted that it no longer fits within the paradigm of the standard international agreement, it is a non sequitur to conclude that elements of state control are normatively unjustified within such a system. It should not, moreover, be forgotten that even within more highly developed federal regimes the system is often constructed to allow the state components thereof to wield power in this capacity at the federal level.[51]
What then of the position of the Commission, in our scheme of institutional balance? How do we justify in normative terms the range of powers possessed by this body, particularly those relating to the legislative process itself, and its monopoly over the initiation of legislation?
It could be contended that the Commission is merely neutrally applying the norms laid down in the constituent treaties. On this view the 'sting' is taken out of the claim that an undemocratic body is exercising powers of a kind normally reserved to elected institutions, the argument being that the passage of Community legislation is rendered less political by the very fact that the Commission is implementing the principles contained in the Treaty articles themselves, which principles have been agreed to by the Member States. The fact that the passage of legislation is dependent upon the agreement of the Council, and often the EP, combined with the greater control which the EP now has over the appointment of the Commission, are further factors designed to take the sting out of the challenge to the Commission's powers. There is force in this argument: the Commission is attempting to effectuate the principles contained in the Treaties; legislation will have to be accepted by the Council and normally also the EP; and the EP does now have greater power over the appointment of the Commission than hitherto.
Reality and intellectual honesty require us, however, to press further. It is readily apparent that the process of legislative initiation is not value free. The principles contained in the Treaty are often set at a level of generality which leaves them open to a range of possible interpretations. Which interpretation is initially adopted inevitably involves value judgments and political choices. Moreover, the very control over the legislative agenda gives the Commission the power to set priorities for the Community. If we are concerned about democracy and legitimacy within the Community we do ourselves a disservice by attempting to conceal these considerations. The image of the Commissioners as modern Platonic guardians will not, therefore, serve to justify their powers. It would, nonetheless, be too hasty to conclude that normative justifications for this power cannot be found.[52]
Republican discourse stressed not only the ideal of balanced constitutionalism, but also, as we have seen, the connected ideal that the component parts of the constitutional regime should operate for the general public good, rather than to satisfy narrow sectional demands. Indeed, it would not be going too far to say that the former was seen as a structural prerequisite for the attainment of the latter. This vision of civil society may provide some assistance when we think of the EC and the role of the Commission therein. In the present state of the Community's development the Commission's retention of the right of legislative initiative can be seen as helping to ensure that Community policies are directed towards the advancement of the general good, as opposed to narrow sectional self-interests. Let us be clear about the nature of this claim. It does not mean that the detailed interpretations of general Community principles, or their prioritisation, are value free. Nor is it premised on the assumption that the Commission is free, when making decisions, of pressures from particular interest groups. What it does mean is that the Commission is well placed to consider legislation which will help to attain the general good envisaged by the Treaties themselves, that it conceives of its role in this manner and that, at the present stage of the Community's development, it can fulfil this role better than either the Council or the EP. The members of the Council will often be swayed by relatively short term considerations relating to the needs of their own Member State. This is less of a problem in relation to the EP, which has not, thus far, divided along generally nationalistic lines. It is, however, not yet institutionally well suited to the generation of a coherent, general legislative strategy which will effectuate the objectives laid down in the constituent Treaties. When considered from this perspective the retention of the Commission's right of legislative initiative appears more defensible in normative terms, particularly given the fact that the Commission will engage in detailed negotiations with both Council and the EP concerning the general legislative strategy for each year, as well as on specific legislative proposals.
The argument in the preceding paragraph can be reinforced when we place the Commission's right of legislative initiative together with the generalised application of the co-decision procedure, which, as we have seen, is likely to be the method of making most Community legislation in the future. Not only can the retention of the Commission's right of initiative be said to foster the public good, in the manner argued for above, but the co-decision procedure through which legislation is then made can be said to foster deliberative democracy. The very structure of this procedure serves to prevent any of the principal players from treating their own preferences as exogenous variables, as givens which are not open to revision or variation in the light of the views proffered by others. This is not to suggest some utopian vision of the workings of the Article 189b procedure. The principal players will, of course, have strong preferences which they will seek to effectuate. Notwithstanding this, the co-decision procedure does, by its very provisions, encourage further reflection on those initial preferences in the light of the reaction of others. This is exemplified by the Council's adoption of its common position in the light of the EP's first reading; by the very existence of the Conciliation Committee should the Council and the EP not be able to agree after the EP's second reading; and by the necessity for amendments to the original measure to be routed through the Commission, with only limited opportunity for the Council to make any further changes.
It should not be thought from the preceding analysis that the distribution of power within the EC as it is likely to evolve after the 1996 IGC is perfect. Significant problems remain, most notably the roles to be accorded to both national parliaments[53] and regional assemblies. No attempt will be made to resolve these problems here. What is, however, of significance for the present discussion is that the discourse on these issues is one taking place within the framework of institutional balance, seeking to accommodate these interests in a manner which is acceptable to the other major players in the Community enterprise.
The discussion thus far has focused upon the promulgation of Community rules, the role played by the major institutional actors in this process and the extent to which the division of power between them can be justified in normative terms. The recent reports leading up to the IGC have also placed considerable emphasis on ideas of transparency and, to a lesser extent, participation. The discussion within this section will consider the meaning given to these ideas in the institutional reports to the IGC and the way in which they fit more generally into an analysis of republican governance.
The 1993 Inter-Institutional Declaration explicitly linked the concepts of democracy, transparency and subsidiarity within the Community. This linkage is continued in the institutional reports produced for the 1996 IGC.
Thus the Report of the Reflection Group states that a central issue for the IGC is improvement in the "efficiency, democracy and transparency of the Union".[54] The same theme recurs throughout the opening section of the Report, as exemplified by the statement that the "Conference must also make the Union more transparent and closer to the citizens".[55] What then does a greater commitment to transparency within the Community entail? It is clear from a reading of the Reflection Group's Report that five principal goals are being pursued under the heading of transparency.[56] These are access to information, with the suggestion that this might be recognized as a right within the Treaty itself; the provision of information to experts and "society in general" prior to any substantial legislative proposal, with the studies leading up to the proposal being made public; the provision of information to national parliaments, with proper time to be allowed for comment thereon from the beginning of the legislative process; the opening up of the workings of Community institutions, particularly the Council and the Commission; and the simplification of Union law itself, with the aim of rendering it more accessible.
The Commission's Report places considerable emphasis on transparency. Part One of its Report is entitled "Democracy and Transparency in the Union" and a discussion of transparency occupies the second section of this part of the document. As with the Reflection Group, the Commission's Report brings a number of different topics under the general heading of transparency. For the Commission the general starting point is that "a Union that is closer to the people has to be a Union where decisions are easier to comprehend, whose actions are better justified, whose responsibilities are clearer, and whose legislation is more accessible".[57] The three principal topics considered by the Commission under the heading of transparency all derive from this opening sentiment. Thus the idea of rendering the responsibilities of the Union clearer provides the foundation for consideration of subsidiarity, and the relative competence of Union and Member States;[58] the commitiment to making decisions easier to comprehend furnishes the link with access to information and clarity of legislation;[59] while the focus upon accessibility of Community legislation is the basis for discussion of the comprehensibility of the Treaty itself.[60]
Transparency also features prominently in the Council's Report. Its discussion of this issue is briefer than that of the Commission, but covers the many of the same types of issues: the intelligibility of the Treaties as a whole; the accessibility of Community legislation; access to documentation; and openness in the conduct of Community business.[61]
The European Parliament does not deal with transparency as a single issue in its own right, but its Report nonetheless addresses a number of the topics dealt with by the other institutional reports under this heading. These include: the need to render Community legislation less complex;[62] a demand for greater openness in the conduct of Council business;[63] the creation of a new right for all EU citizens to have access to information on EU matters;[64] and the clarification of the respective competence of Community and Member States through subsidiarity.[65]
How then does the issue of transparency, as perceived in the manner considered above, fit into a broader analysis, both descriptively and normatively, of rulemaking within the Community? It will be argued that transparency does have an important procedural and substantive role to play in enhancing the legitimacy of the Community.
In formal or procedural terms a number of the issues which are considered in the institutional reports under the heading of transparency speak to classic elements of the rule of law.[66] These include, in particular, the concerns with the accessibility of Community legislation and the Treaties themselves. If people are to be able to plan their lives with knowledge of the legal consequences flowing from their actions, then they must be able to understand the relevant norms which will affect that action. The satisfactory resolution of these issues is, therefore, a necessary pre-condition for the legitimacy of any political regime, including in this respect, the EC/EU.
In substantive terms, the discussion of transparency provides the foundation for the recognition of certain rights, such as access to information, which serve to render the decisionmaking process more accessible and acceptable to those who are affected. More generally, transparency is a necessary precondition for the type of involvement of the citizenry in the business of government desired by a republican model of democracy.
What is most noticeable in the recent reports produced by the major institutions for the IGC is the dearth of discussion about the issue of participation rights. One has to search long and hard for any mention of the topic at all. Even if one is assiduous in this regard it is easy to miss 'mention' of the topic which features only briefly in the report of the Commission. What the Commission actually has to say on the matter will be considered more fully below. It may, however, be helpful at the outset to explain why one could legitimately have expected greater attention to be focused on this important issue.
In empirical terms, Community watchers have been awaiting developments in this area ever since the 1993 Inter-Institutional Declaration on Democracy, Transparency and Subsidiarity, which was adopted by the Commission, Council and European Parliament at the time of the Brussels European Council meeting in October 1993. Although this Declaration does not possess legal force in its own right, it set out principles which the institutions should follow when making Community legislation.[67] The relevant part of the 1993 Declaration states that the Commission "has already taken or is in the process of taking the following measures", including: wider consultations before presenting proposals[68]; the flagging in the legislative programme of those upcoming proposals which appear to be suitable for wide-ranging preliminary consultations; the introduction of a notification procedure, to consist of the publication in the Official Journal of a brief summary of any measure planned by the Commission, with a deadline by which interested parties could submit their comments; and the publication in the Official Journal of legislative programmes to enable people to know about action which was being posited by the Commission. Taken collectively these measures would involve the introduction of a significant degree of participation. Taken singularly it is readily apparent that each of the suggestions could have far reaching implications. This is especially true of the third of the measures listed above, which could amount to the introduction into the Community of a notice and comment provision akin to that which operates in the United States through the Administrative Procedure Act 1946.
In normative terms one might have expected attention to have been given to this issue precisely because of the emphasis which all the institutional reports place upon legitimacy and democracy within the EC/EU. Increased participation is one way in which both legitimacy and democracy within the Community can be enhanced. This is not to say that developments in this direction are somehow the panacea for all the legitimacy problems which the Community faces. Nor that any increase in such rights will be problem free. The point being made here is more specific: given that the institutional reports are explicitly shot through with concerns about legitimacy and democracy, it is odd, to say the least, that more attention should not have been given to the issue of participation rights.
So what then did the Commission say on the matter? The discussion appears under a sub-heading of transparency, concerned with access to information and clarity of legislation.[69] The Commission begins its analysis within this sub-section by acknowledging that developments in various European Council meetings, combined with the accession of new states which place a high premium on closeness of the administration to the citizen, have "highlighted the need for a genuine policy to bring the Union nearer the citizen and strengthen his and her involvement and trust in the decision-making process".[70] Given this opening sentiment it is all the more surprising that the Commission devotes only two paragraphs from its lengthy report to participation as such.
We are told that the Commission has decided to publish its "work programme, its legislative programme and certain of its proposals and to step up its consultation processes",[71] and that 33 out of the 105 legislative proposals in the 1994 programme were subjected to extended consultations.[72] The Commission also states that it regularly consults interested circles by means of Green and White Papers, to ascertain whether legislation is needed and, if so, in what form.[73] All that we are told about any possible notice and comment procedure is that in late 1992 the Commission decided to publish some of its proposals in the Official Journal and invite comment thereon, but that "this procedure has had limited use so far".[74] Quite what this means is unclear. It could mean that the experiment itself has only been used to a limited extent thus far. On this view the obvious question is why the procedure has not been utilised since 1992, particularly given the intervening 1993 Declaration?[75] It could alternatively mean that people have made limited use of this procedure in those circumstances where it has been employed. If the implication from this is that any such procedure has therefore been unsuccessful, it is open to the obvious objection that success of such a venture cannot be measured from such scanty 'data'. It is self-evident that people will not make much use of such a scheme when it is not readily known to them and when there is no framework within which to place such ad hoc participation.
Two important questions remain for consideration in the light of the preceding analysis: what are the implications for democracy and legitimacy within the Community of giving enhanced participation; and should there be a procedural framework for such participation? These will be considered in turn.
There are a number of ways in which increased participation can enhance legitimacy and democracy within the Community.
Legitimacy, in terms of inputs and social acceptability, is likely to be improved both directly and indirectly through participation. The direct legitimating function flows from the fact that people are more likely to accept the resulting norms where they are involved in their formation, rather than simply having such acts thrust upon them. The indirect legitimating function follows from the connection between transparency and reason giving on the one hand, and participation/consultation on the other. This connection is contingent, but real nonetheless. Suffice it to say for the present that if we consider transparency and reason giving to be important, it is difficult to resist further moves in the direction of increased participation rights. Insofar as transparency and reason giving are seen as ways of strengthening the Community's legitimacy, developments in this respect create pressures from people to be able to participate in the framing of the norms which are now more in the public domain.[76]
Legitimacy, in terms of outcome and the quality of the resulting norms, will also hopefully be improved, in the sense that the measures which are finally enacted will be better for taking account of the views of those who are affected and who have expertise in the relevant area.[77]
Participation may also strengthen democracy within the Community in three ways.
Firstly, and most obviously, by allowing such participation we foster an element of direct input into the making of legislation and encourage people to take part in the broader political process. While it is possible to regard this form of participation as a species of interest group pluralism, in which diverse groups with different sectional interests attempt to sway the political process in their favour, this is not the only way in which to conceive of it. It is also possible to think of consultation and participation operating to further a more deliberative democratic process of the kind outlined above.
Secondly, fostering participation can help to legitimate the Commission's own role in the democratic process. The difficulties with the Commission's role have been adverted to above. The criticism that legislative norms are emanating from an unelected body is alleviated, to some extent at least, by the fact that these norms have themselves been the subject of consultation with affected parties. Looked at in this way the Community legislative process can be seen as one in which the norms which emerge are given some representative democratic sanction from the 'top', in the form of acceptance by the Council and EP, and also some species of direct democratic input from the 'bottom', though the medium of consultation and participation.
Finally, we may see participation as having connections with other important aspects of the Community decisionmaking process, such as subsidiarity. The aim behind subsidiarity is to ensure that the Community does not legislate on matters which can best be dealt with at national or regional level. Inherent in this idea is the view that decisionmaking can thereby be decentralised and brought closer to the people.[78] When looked at in this way subsidiarity and participation perform complementary functions. Decisionmaking will be decentralised through the application of the notion of subsidiarity and hence will be brought closer to those affected. Where, however, legislation continues to be made at the central level, participation can help to ensure that those affected by, or interested in, the legislation will be able to proffer their views.
What then of the second of the questions posed above? Should there be a procedural framework for such participation? It is clear from the earlier discussion that the Commission has chosen to take on board the principles laid down in the 1993 Inter-Institutional Declaration through administrative accommodation. There is no hint in its report of any general Community legislation which will serve as a framework for the exercise of this increased participation.
Some might feel that this is a desirable method of proceeding. On this view participation can be enhanced without the dangers of excessive legalism which can be attendant upon the creation of participation rights enshrined in some Community equivalent of the US Administrative Procedure Act.
While one must, of course, be aware of these dangers there are nonetheless strong arguments for some more formal framework within which participation can be exercised. The present regime, as outlined in the Commission's report to the 1996 IGC, still leaves much to be desired, both in terms of inputs and outcomes.
In terms of inputs, the consequence of proceeding by way of administrative accommodation is that individuals have no participation rights as such. The Commission will decide whether, for example, to subject a legislative proposal to extended consultation, or whether to publish a projected measure in the Official Journal. The Commission will retain firm control over the nature of such consultative exercises, with the consequential danger that certain groups will be favourably 'marked'. Moreover, the other procedural protections which are found in a document such as the US Administrative Procedure Act, dealing with issues such as mixing of functions, ex parte communications and the like, are necessarily absent.
In terms of outputs, the consequences of proceeding by way of bureaucratic accommodation, rather than legal right, are just as serious. Most important in this respect is the diminution of any prospect of challenge to the resulting norm. Under the US style regime a party which feels that its views have not been adequately taken into account by the rulemaker, or one which believes that the goalposts have been improperly altered by the decisionmaker between the original formulation of the proposal and the final rule, can normally challenge the resulting rule in the courts. The restrictive nature of the existing rules on standing to challenge Community action, particularly when this takes the form of a regulation or directive, are well known. If any increase in participation was to be legally enshrined in some Community equivalent of the APA, then the prospects of broadening the narrow standing rules would be considerably enhanced. Given that developments in the area of participation have, rather, been made principally by changes in bureaucratic practice, it is much less likely that the ECJ will make any consequential changes in the locus standi rules.
Now it may well be argued, by way of response, that this is just what the Community institutions, at least the Council and the Commission desire: to increase participation to some extent, but to do so without creating any participation rights as such, thereby reducing the possibility of legal challenge to the resulting rules. This may be so. However, one should not ignore the 'downside' of this strategy. It is important not to lose sight of the general concern with legitimacy which permeates all of the institutional reports considered above. Insofar as increases in the availability of participation are designed, inter alia, to enhance the legitimacy of Community decisionmaking, any gains in this respect are likely to be undermined if those who participate in the rulemaking process are systematically unable to challenge the resulting norms on the types of ground articulated above.
[35] These differing interests were not primarily conceived of in terms of differing political beliefs as such, although these might enter into the picture. They were, rather, distinctions based upon different groupings within society.
[36] For a discussion of republican thought see, Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975) and Virtue, Commerce and History (1985).
[37] Republican thought has also featured prominently in recent US public law scholarship, see, e.g., Sunstein, "Interest Groups in American Public Law" 38 Stan. L. Rev. 29 (1985) and "Beyond the Republican Revival" 97 Yale L.J. 1539 (1988); Michelman, "Foreword: Traces of Self-Government" 100 Harv. L. Rev. 4 (1986). For discussion of this literature, Craig, Public Law and Democracy in the United Kingdom and the United States of America (1990), Chap. 10.
[38] Skinner, The Foundations of Modern Political Thought, Volume One, The Renaissance (1978), p. 140.
[39] Ibid. p. 141.
[40] Ibid. pp. 142-144.
[41] Ibid. pp. 156-157.
[42] Ibid. pp. 160-161.
[43] Ibid. pp. 171-173.
[44] Ibid. p. 164.
[45] Ibid. p. 166, 179.
[46] Harrington, "The Commonwealth of Oceana", in The Political Works of James Harrington (Pocock ed., 1977).
[47] Blackstone, Commentaries on the Law of England (16th ed., 1825), Vol. I, Book 2, pp. 146-161. See also more generally, Harrington, "The Commonwealth of Oceana", The Political Works of James Harrington (Pocock ed., 1977).
[48] For discussion, see Craig, "Public Law, Sovereignty and Citizenship", Rights of Citizenship (Blackburn ed., 1993), Chap. 16, pp. 320-324.
[49] This is so notwithstanding the fact that the EP has had to fight long and hard to achieve its existing powers.
[50] Scope of the Codecision Procedure, SEC(96) 1225/4, July 1996, Pt. IIA, para. 1.
[51] As in the case of the US Senate.
[52] We should do well to remember that even within national constitutional systems by no means all of the legislative or executive power resides with those who are directly or even indirectly elected. One only has to think of, for example, the members of the executive in the US, or the heads of major agencies, who are appointed by the President.
[53] For discussion see, Smith (ed.), National Parliaments as Cornerstones of European Integration (1996); Norton (ed.), National Parliaments and the European Union (1996).
[54] Report of the Reflection Group, p. iii.
[55] Loc. cit.
[56] Ibid. p. vi, paras. 67-68, 92, 107.
[57] Commission Report, para. 70.
[58] Ibid. paras. 71-75.
[59] Ibid. paras 76-89.
[60] Ibid. para. 90.
[61] Report of the Council, paras. 13-15.
[62] Resolution of the European Parliament, p. 2.
[63] Ibid. para. 22.
[64] Ibid. para. 7.
[65] Ibid. para. 12.
[66] See, e.g., Raz, The Authority of Law (1979), Chap. 11.
[67] It was the Declaration which provided the catalyst for the passage of concrete legislation on, for example, freedom of information, by the Council and Commission.
[68] In particular through the use of Green and White Papers on the topics listed in the annual legislative programme.
[69] Commission Report, paras. 81-82.
[70] Ibid. para. 76.
[71] Ibid. para. 81(1).
[72] Ibid. para 81(2).
[73] Ibid. para. 82.
[74] Ibid. para. 82.
[75] An answer to this question could be that the Commission sees the same ends being achieved through the idea of flagging those measures in the legislative programme which will be subject to extended consultation. Whether this does in fact achieve the same goal will be considered below, pp. .
[76] Shapiro, "The Giving Reasons Requirement" (1992) U. Chic. Legal Forum 179.
[77] This is not to say that all measures will always be improved in this manner, but that this will be the aggregate impact of allowing participation by interested parties.
[78] This does not, of course, mean that Member States always follow through the logic of support for subsidiarity with a commitment to fostering decentralised decisionmaking internally within their own country.