Reading the White Paper does not, however, remind us that the EU is in the midst of a constitutionalizing process. The definition of the situation and the proposals made in the White Paper are not well connected to the ongoing process of making law equally binding for every part of the Community.8 What is more, there is something to learn for proponents of good governance from the way the Charter process was conducted.
The Charter process was a new one in the EU, as it was open and inclusive. The drafting of the Charter took place in a deliberative manner, in contrast to the IGC-2000 process, and all others Treaty changes that are conducted in an intergovernmental mode: the executive branches of governments strike bargains behind closed doors. A 62-member self-proclaimed Convention conducted the drafting process, which, at least partly, was of a deliberative kind (Schönlau 2001). A majority of the members were parliamentarians, from the EP (16) and from the Member State Parliaments (two from each) participated and lent legitimacy to the process. The Convention consulted with other organisations and conducted open hearings to representatives from civil society. Since then, hundreds of NGOs have submitted briefs to the Convention on different aspects of the Charter. These briefs can be accessed on the Internet. It received more than 1000 documents from more than 200 different sources.9
In this process, more voices were heard and the problems were attended to in an open and argumentative manner, i.e., with more attention to the force of the better argument than to differentials in the power basis of the participants. Issues were highly contested but deadlock was omitted and the integrity of the parties respected. The process itself is instructive for the constitutional settlement that has to come and it constitutes the benchmark for any future major reform process in the EU (de Búrca 2001).
The Charter of Fundamental Rights, then, is a step in the right direction also with regard to a constitution making process. An inclusive deliberation process, which is open for inputs, viewpoints, recommendations from all, should precede the phase of hard core decision-making, i.e., conflict resolution which may require bargaining power - voting - to be settled. Conducting IGC meetings and the constitution-making process along such lines might produce less disappointing results than the Nice IGC did, which was conducted by the intergovernmental mode of governance as is the usual way of changing the Treaties in the EU. The procedures of deliberative democracy pertain to public debate, inclusion of affected parties or their representatives, and institutionalised deliberations, which adhere to the logic of arguing. Due to the thesis that parties may learn and successively change preferences when they have to justify their positions towards involved and affected parties, contenders may reach mutual understanding and agreement by way of sincere communication. There are not many traces such an approach in the White Paper's proposals although the open method of co-ordination may be read as reflective of this. It propounds, as mentioned, a consensus forming process through the setting of guidelines, benchmarks, monitoring and assessing practice.
Consensus-seeking may be cumbersome and costly, but it is the way of lending legitimacy to political policy-making in fragmented systems of decision-making lacking a collective identity. It is a way of accommodating difference - overcoming the problem of collective action - and of ensuring willingness to comply with (eventually) decided common actions. Hence, it may not be wise to use only the open method when legislative action under the Community method is impossible.10 The White Paper would like to speed up decision-making and implementation, which it now finds extremely slow: "Council should vote as soon as qualified-majority seems possible rather than pursuing discussions in the search for unanimity" (p. 22). It should be remembered that veto power or unanimity represents a constraint that induces deliberation: when parties can block outcomes, actors have an incentive to find reasons which are convincing to all, not just to the majority. Many of the processes within different policy fields of the Union are actually conducted along such lines and this may provide some of the glue of the integration process - a process which, of course, is not in line with the terms of efficient problem-solving but a process which, nevertheless, has some ability in inducing legitimacy due to its slowness and inclusiveness. However, the open method of coordination and soft policy approaches in general - peer pressure, benchmarking, best practice information, etc. - do not by themselves solve the legitimacy problem as such, as the citizens still are not recognized as the ultimate authors of the law.11
8 In light of the quest for direct sources of legitimacy, the question of variable geometry must also be considered, as it will necessarily constrain the applicability of the Community method. Accountability may be difficult to obtain with the increased flexibility which the White Paper advocates.
10 This indicates that the open method of coordination is just seen as a transitional mechanism, cf., "`Benchmarking' can be a factor in reframing domestic discourse and shifting the distribution of power over ideas and agenda setting". (Dyson 2000:5)
11 Hodson and Maher (2001:724) hold that such methods probably increase opaqueness and élitism.