Experimental Governance: The Open Method of Coordination

• Date: 01 July 2006
• Author: Erika Szyszczak
• Published date: 01 July 2006
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00329.x

Experimental Governance: The Open

Method of Coordination

Erika Szyszczak*

Abstract: The open method of coordination (OMC) has increased the competence of the

European Union to regulate areas where the traditional Community legislative processes

are weak, or where new areas require coordination of Member State policy, either as part

of the spillover of the integration project as a result of economic and monetary union, or

as a result of the case law of the European Court of Justice. The OMC is viewed as an

aspect of new, experimental governance, which is part of the response by the EU to

regulatory shortcomings. This article explores the normative aspects of the OMC using

case studies. The article examines the conditions in which the OMC emerges, the condi-

tions upon which it thrives, and the claims that are made for its effectiveness as a new form

of governance.

I The Historical Context

The term ‘open method of co-ordination’ (OMC) was coined at the Lisbon Summit of

March 2000. However, a legal base for what is now generically identif‌ied as the OMC,

is seen in the use of new methods of coordinating policy in the arena of economic and

monetary union (the Broad Economic Policy Guidelines) introduced in the Maastricht

Treaty 1991, and now found in Article 98 EC, and later, in the arena of employment

policy, the European Employment Strategy, introduced in the Amsterdam Treaty 1997

in Articles 125–130 EC. It is arguable that the advent of the OMC in EU policy making

and governance models is not so novel, or so recent, but merely builds upon the long

tradition of soft law processes used in policy making1and the experimentation with new

forms of governance,2drawing upon the success of Commission monitoring of tradi-

tional hard law directives and the peer review, name and shame mechanisms utilised in

* Jean Monnet Professor of European Law ad personam, Professor of European Competition and Labour

Law and Director of the Centre for European Law and Integration, University of Leicester, UK. I am

grateful to Brabara Bogusz, Adam Cygan, Arabella Stewart, and participants at the Harvard Seminar for

useful comments on a f‌irst draft of this article.

1K. Wellens and G. Borchadt, ‘Soft Law in European Community Law’, (1989) 14 European Law Review

267; L. Senden, Soft Law in European Community Law (Hart, 2004).

2For example, the commitment to procedural safeguards such as proportionality and subsidiarity, the

use of comitology, framework legislation, networked administrative agencies. See also: K. Jacobsson,

‘Between Deliberation and Discipline: Soft Governance in EU Employment Policy’, in U. Morth (ed.)

Soft Law in Governance and Regulation: An Interdisciplinary Analysis (Edward Elgar, 2006).

European Law Journal, Vol. 12, No. 4, July 2006, pp. 486–502.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

the implementation and monitoring of the Internal Market programme and extended

into other areas such as competition policy.3

The OMC can be viewed as yet another aspect of experimental governance without

entailing a systemic change to the underlying constitutional settlement of 1957.4In this

respect f‌irm boundaries seem to be drawn between ‘old’ governance, or the Community

method, and ‘new’ governance, which may exist outside the legal constitutional struc-

tures of the EU.

The OMC may also be characterised as part of an inherent logic within the EU; of

political actors switching from traditional to better or more eff‌icient regulation in areas

where some level of EU regulation is necessary but where it has been diff‌icult to reach

consensus on what level and how this should be achieved. All are part of the inherent

ability of the EU integration process to constantly reinvent itself as part of an evolu-

tionary process of political and economic survival.

A uniting characteristic of new governance5is that it is seen as an experimental form

of governance and decision-making:6a response to the various regulatory shortcomings

of the EU that were manifested in the latter part of the last century. Such shortcom-

ings include: the limited decision-making capacity of the EU, buttressed by political

concerns of the Member States to retain a residual sovereign capacity to direct, and

implement, economic and social policies which are not seen as central to the integration

project; the Court of Justice’s continued role to set legal limits to the competence

attributed to the integration project;7and the various criticisms of the powers of the

EU, questioning the legitimacy of the decision-making processes and the powers attrib-

uted to the EU. 8

One normative analysis of the problem is provided by Scharpf.9He argues that

the EU is bedevilled by systematic limits, or black holes, of non-decision. Regulatory

competition forces Member States into a downward spiral and European decision-

taking tends to end up lower than that of any single Member State. In his analysis,

a solution to the problem emerges by estimating the degree to which decision-making

should be decentralised. But within the EU, deadlock in decision-making is also reached

because of institutional factors. It is accepted that the EU is a multilevel decision-

making polity, with very few institutional mechanisms to achieve hierarchical coopera-

tion, and this contributes to the decision-making deadlock. The situation is exacerbated

by the creation of new Institutional models of decision making, giving bodies such as

the European Parliament greater powers of co-decision and attaching importance

to the views of other institutions such as the Economic and Social Committee, the

Committee of the Regions, the Economic and Policy Committee, the Employment

Committee, and the Social Protection Committee. Post-Maastricht, the emphasis upon

3See E. Szyszczak, ‘The Regulation of Competition’, in N. Shuibhne (ed.), The Regulation of the Internal

Market (Edward Elgar, 2006).

4E. Szyszczak, ‘Social Policy in the Post-Nice Era’, in A. Arnull and D. Wincott (eds), Accountability and

Legitimacy in the European Union (Oxford University Press, 2003).

5For a discussion of new governance techniques see the Special Issue on Law and New Approaches to

Governance in Europe, (2002) European Law Journal Vol 8, Issue 1.

6See J. Zeitlin, ‘Social Europe and Experimentalist Governance’, in G. de Búrca (ed.), EU Law and the

Welfare State (Oxford University Press, 2005).

7Case C-376/98 Germany v Parliament and Council (Tobacco Advertising) [2000] ECR I-8419. See the paper

by Mattias Kumm in this issue.

8P. Schmitter, ‘How to Democratize the European Union...andWhyBother?’ (Lantham, 2000).

9F. W. Scharpf, Governing in Europe: Effective and Democratic? (Oxford University Press, 1999).

July 2006 Experimental Governance

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Journal compilation © Blackwell Publishing Ltd. 2006