Europe in Search of its Civil Society

• DOI: http://doi.org/10.1111/1468-0386.00150
• Author: Olivier De Schutter
• Published date: 01 June 2002
• Date: 01 June 2002

Europe in Search of its Civil Society

Olivier De Schutter*

Abstract: Building upon the experience of the Convention for the elaboration of the

Charter of fundamental rights and upon the suggestions of the White Paper on European

Governance, this article puts forward proposals for a better involvement of the `civil

society' in the system of the European Union. It oers a general diagnosis of the

misunderstandings surrounding the notion of `civil society' and the relationship of

representative democracy to participatory democracy. It then draws some lessons from

the experiment in deliberative democracy which led to the drafting of the Charter of

fundamental rights. Finally, it focuses on the contribution the organisations of the civil

society can make to good governance in the European Union. Altogether, the proposals

presented tend to encourage a better structuration of the actors of the civil society. Such a

structuration, the article concludes, although it is usually considered with suspicion even

by those whom it would most bene®t, must be seen instead as a condition for the eective

exercise of whichever participatory rights might be granted to the organisations of the

civil society.

Three recent developments have caused a renewed interest in the identi®cation of a

`civil society' at the European level, and in the methods by which to improve

its participation in the institutional system. First, the strengthening of the `anti-

globalisation' mobilisation was both made possible by, and in turn favoured, the

emergence of a transnational network of organisations. These organisations have

widely varying degrees of formalisation and modes of intervention. But they gather

around a small number of common themes, one of which is their opposition to the

pursuit of the project of economic liberalisation in Europe, as long as such

liberalisationÐoften equated, at the rhetorical level, with privatisation of traditionally

public sectorsÐis not counterbalanced by progress in the social ®eld and by the

democratisation of the decision-making process in the European Union. Many feel

that this `new actor' should be better integrated in the institutional system of the

Union if the dialogue with him is to lose its purely confrontational dimension. Many

European Law Journal, Vol. 8, No. 2, June 2002, pp. 198±217.

#Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* Faculty of Law and CPDR, Catholic University of Louvain, Louvain-la-Neuve, Belgium. The author was

involved in the Convention for the elaboration of the Charter of Fundamental Rights of the European

Union both for the International Federation of Human Rights Leagues (FIDH), and as an expert to the

Economic and Social Committee (group III). He also co-edited a volume which, published by the

Foreward Studies Unit of the European Commission, in¯uenced the White Paper on European

Governance: O. De Schutter, N. Lebessis & J. Paterson (eds.), Governance in the European Union,

`Cahiers' of the Forward Studies Unit, Ocial Publications of the European Communities, Luxembourg,

2001. This paper was completed in October 2001.

feel that the legitimacy of the European Union, in the years to come, will depend on its

capacity to include this voice, and to oer convincing answers to the questions raised

by these organisations.

Second, there is the experience of the drafting of the Charter of Fundamental Rights

of the European Union. This process, which took place between December 1999 and

October 2000, has raised considerable interest within the most diverse organisations of

the civil society. Partly because of the simplicity of the issues raised by the drafting of a

Charter of RightsÐsimple, at least, in the symbolic stakes of such an exerciseÐ, partly

because of the unprecedented openness of the ConventionÐwhich invited outside

contributions, placed them on the website of the Convention, and held a hearing of 67

non-governmental organisations (NGOs) on April 27, 2000Ðthe drafting process led

to an authentically European-wide debate among the organisations of the civil society.

The general impression was that the drafting process of the Charter compared

favourably with the classical intergovernmental negotiations preceding constitutional

changes in the European Union, even when such intergovernmental conferences are

prepared by `re¯ection groups', as was the case of the Westendorp group in charge of

identifying the issues to be decided in the Treaty of Amsterdam of 1997. Any reform of

the treaties which would not involve the representatives of the civil society in the way

the Convention for the drafting of the Charter of Fundamental Rights did, it is now

generally agreed, would suer from a damaging de®cit of legitimacy. With the

Charter, a precedent has been set which simply cannot be ignored in future

transformations of the European Union.

Third, at last, there exists a rather vague but widely diused impression that the

legitimacy of the European process of integration, which for forty years has been

mainly result-based, must now be more process-based. Output-legitimacy must be

complemented by input-legitimacy,

1

now that the initial project of building solidarity

among the peoples of Europe by the creation of a single market has exhausted its

appeal. Improving the participation of the organisations of the civil society is

considered an element of this search for legitimacy. Thus, the White Paper on

European Governance, delivered by the Commission on 25 July 2001, considers

positively the contribution of the non-governmental organisations to the de®nition

and implementation of European policies: NGOs `often act as an early warning system

for the direction of political debate', and their involvement `oers a real potential to

broaden the debate on Europe's role. It is a chance to get citizens more actively

involved in achieving the Union's objectives and to oer them a structured channel for

feedback, criticism and protest'.

2

June 2002 Europe in Search of its Civil Society

#Blackwell Publishers Ltd. 2002 199

1

On this distinction, F. W. Scharpf, Regieren in Europa (Campus, 1999); and F. W. Scharpf, `Democratic

policy in Europe', 2 ELJ 136.

2

COM(2001) 428 ®nal, 25.7.2001. See esp. the comments on `Better involvement', as part of the `Proposals

for change' contained in the communication (point 3.2.).

3

The Memorandum reads in relevant part: `The Forum will consist of the representatives of national

parliaments, the European Parliament, the European Commission and the governments of the Member

States. The candidate countries can also contribute to the work according to arrangements to be decided.

The President may take initiatives for consulting the regions. He will also be responsible for contacts with

civil society' (http://europa.eu.int/futurum/documents/other/oth200601_en.htm).

4

`Openness' and `participation' are listed among the ®ve principles of `good governance' by the White

Paper of July 2001. The other three principles are `accountability', `eciency', and `coherence'. See

pp. 10±11.