In this section, the special role of political parties for European discourse will be highlighted first(1). Then, this paper will examine some of the White Paper's propositions in the light of the need to initiate a European political discourse (2).
As has already been pointed out, the Commission should not only discuss options and propositions with actors of Civil Society as mentioned in the White Paper, but also and especially with emerging European political parties. These parties will soon have a sound legal basis established by a statute on European Political Parties.24 One might ask: Why political parties? What is so specific about them in comparison with, for example, non-governmental organisations?
Political parties do not only pursue a one-dimensional goal, but they have to integrate many, sometimes divergent, political objectives. They are better adapted to articulate societal anxieties, wishes and aspirations. This is not to say that other actors are less important - on the contrary, they are necessary to direct public opinion towards certain pressing issues. However, political parties have to present an integrational programme to the people on the occasion of elections. On this basis, an electoral decision is made, notwithstanding the fact that this possibility is still limited to the Union's level, partly because of Article 190 EC. Also, because of this article, it is still largely national politics which influence the voters' decisions. Nonetheless, political parties at European level have the possibility of influencing politics -if they start to develop a corresponding attitude. This can be achieved specifically through party representatives within the European Parliament because of their ability to adopt legally-binding acts25 and through a political discussion fuelled by them. In doing this, they create the European public sphere necessary for a functioning European discourse. And it is this European discourse that is necessary to overcome the Union's legitimacy problems. However, this discourse in unlikely to happen without a Europe-wide political consciousness.
Having shown the need for a political Union with a more central role for European Parties, some concrete aspects of the White Paper will now be examined in the light of this proposition.
The White Paper proposes extend majority-voting in the Council (p. 38). This proposition has to be maintained, in spite of critical opinions both from output-orientated scholars and from practitioners.26 It is argued that smaller states might be overruled and that the need to obtain consensus would be a specific advantage of the community method, creating a less political, more issue-orientated working of the Council. Legitimate majority-rule, in particular, would presuppose a strong European collective identity, vigorous Europe-wide public debates, and the manifest political accountability of European governors. This sounds convincing. But the argument foresees that majority-voting could lead to a more vigorous Europe-wide public debate. The line of argument developed above also applies here: dissent fosters controversy, and controversy strengthens discourse. But the introduction of more majority-voting requires treaty amendments, and this cannot fall within the scope of the Commission's approach to reform governance without treaty modifications (see the introduction of the White Book p.3). However, because of the Commission's approach, which is accepted as a paradigm here, this will not be examined here. Therefore, until such a treaty modification, visualisation of council debates can only be attained by close control of and by co-operation with national parliaments and the Council,27 trying to induce public discourse in that manner.
There has been a lot of controversy about the open method of co-ordination.28 This method is a soft form of policy-co-ordination in order to attain certain self-imposed goals without prescribing any compulsory measures that have to be adopted. Its instruments are benchmarking, exchange of information in order to establish "best-practise" and guidelines specifying which points are considered to be especially important for the agreed goals.29 All this happens at intergovernmental level, and is thus regarded with caution by both the European Parliament30 and the German Länder. The main areas where the open method is already used today is economic politics - in order to achieve economic convergence in particular - and employment policy. At the Luxembourg European Council 1997, a co-ordinated employment strategy was agreed upon,31 and this so-called Luxembourg process was eventually complemented at the Cologne European Council32 by a macro-economic co-ordination approach, in order to attain a "macro-economic policy mixture" which includes financial politics, wages, fiscal policy and general economic policy.
The White Paper adopts a cautiously positive, but somewhat contradictory, approach. On the one hand, it is argued that the open method of co-ordination should not be used when "legislative action under the Community method" is possible, while. on the other, it is argued that it should be used to assess if "legislative or programme-based action" is necessary. According to the rule of limited empowerment, the competencies, in general economic and social policy scarcely present, would have to be created first. Indeed, the formula could be understood in such a way that the open-method of co-ordination should be used to evaluate if community competencies are actually necessary.
Has the open-method of co-ordination provoked a politicisation of the concerned areas? The answer is a cautious "yes". While it is true that the European Parliament, in particular, is largely left out in both the Luxembourg and the Cologne processes, it has, nonetheless, focused public attention on the areas of social and economic policy. In the long run, experiences made within the framework of the open-method of co-ordination might lead to the creation of new competence provisions in these a reas.33
The open-method might be used in other areas without community competencies. It could also be used to supervise the implementation of community-legislation "in the shadow of the ECJ".34 This would have the advantage of provoking a politicisation through linkage of the open-method of co-ordination directly with the Member States, since some representatives of the latter, the social partners, possibly even NGO's, would be present within the supervising "co-ordination bodies". This concept even seems to be particularly attractive in the light of the theory of governance.
To counter widespread concern, it has to be stressed that the open-method of co-ordination does not, in itself, lead to an extension of community competencies. It may only lead to the realisation that positive integration is necessary.35
This brief examination shows that the open-method of co-ordination can be considered as a useful complement of community policy, particularly because it promotes politicisation. Thus, instead of leading to an institution-orientated approach to addressing politics, it tends to lead to an issue-orientated approach.
The Commission's White Paper on Governance proposes considerable alterations to both comitology36 - the way secondary legislation is executed by the Commission and Member States - by abolishing management- and to regulatory committees (p. 40). This seems to meet popular demand to get rid of this incomprehensible system of committees and expert systems of doubtful utility and near-complete intransparency.37 However, the White Paper does not provide for any structural replacement of even the indirect links of the execution of community politics with the Member States.38 Instead, all powers have to/will be vested in the Commission. This will lead to an even more consensual, smoother execution of politics. However, this does not correspond to the approach argued for in this paper, as it will lead to an increase in the technocratic appearance of EU politics.
This is not to argue that comitology is not desirable in the way it is carried out today. However, there needs to be a structural equivalent. At the very least, there has to be increased public debate to make public control - which has been possible since the Amsterdam Treaty - more likely and effective.39 The White Paper does not address this question.
The Commission's White Paper also deals with the establishment of further regulatory agencies. Currently, three40 out of the twelve agencies41 have regulatory powers, i.e., the power to take autonomous decisions in a clearly defined area. The other nine agencies can be categorised as "observatories" (monitoring model), agencies which promote social dialogue at European level (co-operation model) and agencies operating as sub-contractors to the European public service (executive model). 42
The European agencies are autonomous Community bodies of a public nature, not established by the Treaties, but created as a result of acts of secondary legislation adopted by the Council. They have their own legal personality and were established with the idea of fulfilling tasks of a technical or scientific nature, or performing a specific management task provided for in their terms of reference. The emergence of European agencies is a recent phenomenon. The 12 agencies currently in existence were set up in two waves. The two first-generation agencies were established in 1975 (in the field of social affairs), followed by the second generation at the beginning of the 1990s, in connection with the completion of the internal market. The European agencies are small Community co-ordinating structures, located in ten different Member States. They have a total staff of just over 1,000 and receive approximately ¬100 million in subsidies from the general budget of the EU. They were created with the following objectives: management autonomy, flexibility, involvement of the Member States, and closer attention to citizens' concerns.
Although the European agencies are very different in terms of both size and purpose, as a general rule they present a common basic structure and similar operational instruments.
All European agencies function on the following basis:
The Commission thus has no formal relations or possibility of control over the agencies, but exercises its powers primarily through its representatives on the boards, who are usually se nior officials from the relevant Commission departments. However, the fact still remains that the regulatory agencies are politically independent entities.
Recently, the Commission has proposed to create three further agencies: a Food Safety Agency,43 a European Aviation Safety Authority (EASA)44 and a European Maritime Safety Agency.45 The White Paper on Governance mentions the establishment of all three, claiming that only the EASA is to have clear regulatory competencies.
The very careful approach of the White Paper towards agencies (at least in the section devoted to them) in general, and regulatory agencies in particular, clearly reflects the Commission's reticence with regard to the establishment of further agencies. This reflects the Meroni doctrine.46 In this Case, as interpreted by the Legal Service of the Commission, the Court ruled that the Treaty only permits for the establishment of regulatory agencies in clearly defined areas that are neither `highly political' nor expressly attributed to the Commission. This is precisely the attitude of the White Paper (Section. 3. 2., p. 31).
So, why dwell on the question of agencies here? The reason is twofold. One the one hand, the White Paper itself is, upon closer examination, rather ambiguous about agencies. It starts off praising their ability to use "highly technical sectorial expert knowledge" and it highlights the greater visibility agencies can provide for both the concerned sectors and the public. On the other hand, as pointed out, it is extremely cautious towards the establishment of new agencies. This attitude certainly reflects internal power struggles and it is not yet clear who will prevail in the long run.
Second, there are important voices in the literature which argue in favour of the more exte nsive use of agencies. Three currents can be identified here.
The first belongs to the proponents of an approach influenced by a certain interpretation of System Theory, which argues in favour of a shift in focus to "random, procedural, heterarchical thinking", and away from "the classical conceptions of the unity of an actor". This approach presupposes a different type of public `network-adapted' regulation, which is better suited to stimulating the productivity of networks which generate private knowledge.47 In order to generate the decisive resources of today's `knowledge society', the EU and the nation states have to generate the conditions for the effective collection and management of information. To this end, agencies are certainly well-suited.
The second current can be associated with Majone's idea of the regulatory state. This theory argues that regulation is primarily concerned with increasing micro-economic efficiency. This implies that non-majoritarian regulatory instruments should not be used to achieve redistibutional or other social policy goals.48 In order to preserve democratic accountability, clear statutory and institutional objectives have to be defined, transparency has to be guaranteed and expertise is to be assured by the then necessary regulation through agencies.
A third, though clearly Majone-influenced, approach argues that regulation through agencies is the logical result of the limited empowerment rule (Art. 5 EC) of the EC.49 According to this theory, the fundamental point about the attribution of powers in European law is that, unlike other federal systems, this is not done by area of action (competition, environment, etc.), or by decision-making bodies (legislative, executive), but cumulatively, in the sense that the Treaty simultaneously determines the field of activity, the competent institution and the form and procedure of decision-making. It is thus a system of specific and limited empowerment, which would significantly reduce the scope for rule-making by the Community and would block the road to a transition into a federal system, which could have been achieved by general empowerment. Thus, the Member States would retain absolute control over the process of integration. This principle of powers conferred by means of limited empowerment leads to a system of overall distribution of Community power which is characterised by an interdependence of institutions invested with distinct and carefully defined functions. It would be more of a blueprint for institutional balance, than a system of separation of powers. If this were to be so, nothing would prevent us from establishing regulatory agencies, if only the institutional balance was guaranteed.
These theories cannot be discussed in detail here; thus, a few remarks centred upon the implications of these theories for the politicisation of the "Community Method" must suffice.
As has been argued elsewhere,50 the interpretation of governance inspired by System Theory with its total elimination of power relations within the governance framework and, as a consequence, between the different systems, leaves out an important aspect which - in spite of all the transformations - is still present in modern society. Even more important in the context examined here is its inability to provide a viable tool to overcome the legitimacy-crisis of the EU, which is still nearly universally accepted. It does not even consider the need to politicise the Union.
Majone's theory of the regulatory state might provide for a sound theoretical framework. Indeed, he devotes considerable space to the democratic - and thus political - control of agencies, in spite of his concern mainly with outcome legitimacy. This is to be done, as outlined above, among other safeguards, by "procedures ... transparent and known to all concerned parties". Given the considerable number of agencies which are hardly known or not known at all by the public, it remains unclear how this is to be achieved. He sees the danger of both the Commission and the (regulatory) agencies being influenced too much by lobbying groups. His conclusion that the Commission would be less vulnerable to lobbying groups than national authorities is questionable. Indeed, there is strong evidence against this.51 A European Union regulated by agencies would certainly be less political. There would be less European discourse, but more technocratic administration . There would be no development towards a European demos. It would be a less political Union.
Yatagana's conclusion that the principle of limited empowerment would entail an institutional control system rather than one that is controlled by a separation of powers, is not self-evident. Even if one does accept this conclusion, one has to ask if this implies the elimination of the political element. As argued here, the contrary is the case.
As a conclusion to this section, the Commission's reluctant stance on the establishment of further regulatory agencies as expressed in the White Book is to be maintained. In certain "highly technical" areas, regulatory agencies might be helpful (the aviation authority falls within this category). Still, the primary focus has to lie on the maintenance of the political responsibility of the Commission. It is all too easy to eliminate discourse by reference to the "expert-character" of the problems involved.52
It is frequently argued that the politicisation approach through political parties is not the task of the Commission. This is certainly partly correct. Without more effort from the involved actors, especially political parties, the Commission will have to fulfil a Herculean task. On the other hand, there are two important arguments why it is indeed the Commission's task to involve political parties:
24 Cf. the information of the Commission - Ergänzender Beitrag der Kommission zur Regierungskonferenz über die institutionellen Reformen - Statut der europäischen Parteien COM (2000)/0444.
25 Rainer Stentzel (op. cit. note 15), p. 176.
26 See, for example, the critical appraisal of Fritz Scharpf (op. cit. note 9) at 7: "For the time being, however, Europe cannot operate as a majoritarian democracy, and European policy must be consensual if it is to be legitimate".
27 For a development of this argument, see Ingolf Pernice, The Role of National Parliaments in the European Union, at 4 of the manuscript (forthcoming).
28 For a careful and comprehensive (positive) appraisal, see Dermot Hodson/Imelda Maher, The Open Method as a new mode of governance: The case of soft economic policy co-ordination, in: Wallace, The Changing Politics of the European Union, special edition of the Journal of Common Market Studies, November 2001 (forthcoming).
29 Communication on Strengthening Economic Policy Co-ordination with the Euro area COM 2001 82 (final).
30 See the report on the White Book on European Governance of 3. 10. 2001, Committee on Constitutional Questions, ( Sylvia-Yvonne Kaufmann), COM (2001) 428 - C5-INC 01/COS, para 16.
31 OJ C 30, 28. 1. 1998, 1. For further details, see Bundesministerium für Arbeit-und Sozialordnung, (ed.), Leben und Arbeiten in Europa - Dokumentation Europäische Union und Sozialpolitik, Berlin (2000), esp. at 19.
32 Bundesministerium für Arbeit und Sozialordnung, (op. cit. note 31) at 48 - 49. For a report on first experiences see Arne Heise, Der Kölner Prozess - Theoretische Grundlagen und erste Erfahrungen mit dem EU-Makrodialog, integration 2001, 390.
33 Dermot Hodson/Imelda Maher, (op. cit. note 28).
34 Fritz Scharpf, (op. cit note 9), 9.
35 Dermot Hodson/Imelda Maher, (op. cit. note 28).
36 Council decision of 28. June 1999 concerning the modalities for the execution of comitology, OJ 1999 L 184, p. 23.
37 Christoph Sobotta, Transparenz in den Rechtsetzungsverfahren der Europäischen Union, (2001), 236.
38 Fritz Scharpf, (op. cit. note 9), 6. For a positive evaluation of comitology, see Christian Joerges, "Good Governance" Through Comitology?, in: ibid/Vos, EU Committees: Social Regulation, Law and Politics, (1999), 311 (at 318).
39 Critical, however, of the practical possibility of control through European Parliament and the public is Christoph Sobotta, Transparenz in den Rechtsetzungsverfahren der Europäischen Union, (2001), 236.
40 The Office for Harmonisation (Alicante, Spain), the Community Plant Variety Office (Angers, France) and the European Agency for the Evaluation of Medicinal Products (London, UK). All perform quasi-regulatory functions (publication of trademarks, authorisations to release products into commercial circulation) and provide services to sectors of industry for which they charge fees which represent their own financial resources.
41 In chronological order of establishment, the European agencies are as follows:
1) European Centre for the Development of Vocational Training (CEDEFOP), Articles 151 and 308, Regulation No 337/75 of 10.2.75.
2) European Foundation for the Improvement of Living and Working Conditions, Article 308,
Regulation No 1365/75 of 26.5.75.
3) European Environment Agency (EEA), Article 175, Regulation No 1210/90 of 7.5.90.
4) European Training Foundation, Article 308, Regulation No 1360/90 of 7.5.90.
5) European Monitoring Centre for Drugs and Drug Addiction, Article 308, Regulation No 302/93of 8.2.93.
6) European Agency for the Evaluation of Medicinal Products (EMEA), Article 308, Regulation No 2309/93 of 22.7.93.
7) Office for Harmonisation in the Internal Market (OHIM), Article 308, Regulation No 40/94 of 20.12.93.
8) European Agency for Health and Safety at Work, Article 308, Regulation No 2062/94 of 18.7.94.
9) Community Plant Variety Office (CPVO), Article 308, Regulation No 2100/94 of 27.7.94.
10) Translation Centre for Bodies of the European Union, Article 308, Regulation No 2965/94 of 28.11.94.
11) European Monitoring Centre for Racism and Xenophobia, Articles 284 and 308, Regulation No 1035/97 of 18.104.22.168) European Agency for Reconstruction, Article 308, Regulation No 2454/99 of 15.11.99.
42 The following description is based on Xénophon A. Yataganas, Delegation of Regulatory Authority in the European Union The Relevance of the American Model, Harvard Jean Monnet Working Paper 03/01, http://www.jeanmonnetprogram.org /papers/01/010301.rtf
43 White Paper on Food Safety presented by the Commission, COM (1999) 719 final of 12.1.2000 leading to the Proposal for a regulation of the Parliament and the Council laying down the general principles and requirements of food law, establishing the European Food Authority and laying down procedures in matters of food safety. COM (2000) 716 of 8 November2000.
44 COM (2000) 144 final of 13 March 2000.
45 Proposal of 6 December 2000, COM (2000) 802 final
46 ECJ Rep 1958 p. 11 -. Meroni / High Authority. See, also, JUR (2000) 30465 of 10 July 2000.
47 Cf., Karl-Heinz Ladeur, Towards a Legal Theory of Supranationality - The Viability of the Network Concept, (1997) ELR 3, 33, at 48.
48 A good summary of his ideas can be found in Giandomenico Majone, Independence vs. Accountability? Non-Majoritarian Institutions and Democratic Government in Europe, EUI Working Paper SPS Nr. 3 (1994), esp. at 4, 25. See, also, ibid., Regulating Europe, 1996.
49 Xénophon A. Yataganas, (op. cit. note 42) at 22.
50 Philipp Steinberg, (op. cit. note 2), 17.
51 See the polemic, but thoroughly researched report of Johann-Günther König, Alle Macht den Konzernen, (1999), esp. at 221.
52 Rightly critical concerning governance through expert systems and the subsequent problems of functional coordination Jürgen Habermas, Faktizität und Geltung, 2. ed.(1992), 426; this constellation, frequently occurring in environmental law, is analysed by Rudolf Steinberg, Der ökologische Verfassungsstaat, (1998), at 387 als ,,Ersetzung der rechtsstaatlich-demokratischen Verfassung durch die Technostrukur" (Replacement of the democratic constitution by the techno-structure). Critical as well the draft report about the Commissions White Book on Governance, 3. 10. 2001, Constitutional Committee of the European Parliament (Sylvia-Yvonne Kaufmann), COM (2001) 428 - C5-INC 01/COS, para. 8.
53 Fritz Scharpf, (op. cit. note 9), 7: "The Heroic Commission" ?; Christian Joerges, "Ökonomisches Gesetz" - "Technische Realisation" - "Stunde der Exekutive": Rechtshistorische Anmerkungen zum Weißbuch der Kommission, http://jeanmonnetprogramm.org/papers/011701.html, 10: "Die Stunde der Exekutive", aimed at historic experiences of transnational governance.