Levelling the EU participatory playing field: A legal and policy analysis of the Commission's public consultations in light of the principle of political equality

• DOI: http://doi.org/10.1111/eulj.12371
• Published date: 01 March 2020
• Author: Alberto Alemanno
• Date: 01 March 2020

KALEIDOSCOPE

Levelling the EU participatory playing field: A legal

and policy analysis of the Commission's public

consultations in light of the principle of political

equality

Alberto Alemanno*

Abstract

The EU Commission has a long tradition of consulting interested parties when formulating its

policies. While the rationale, format and legal basis relied upon by the Commission when holding

public consultations have changed over time, its systematic inability to make those consultations

equally accessible to all affected parties has remained constant. This article discusses the extent to

which such a consultation practice conflicts with the principle of political equality, as enshrined in

Article 9 TEU. Given the Commission's unrestrained discretion regarding who, how and when to

consult and the absence of corresponding participatory rights, it argues that the EU can no longer

presume that all stakeholders—especially citizens and civil society groups—enjoy equal access to EU

institutions. Rather, under a proposed substantive reading of the principle of political equality, it

contends that EU institutions are procedurally required to ensure that everyone will effectively be

given equal opportunities of access to the policy process. Only a series of structural, power-shifting

reforms—some of which are proposed in this article—may enable participation to become an

autonomous form of legitimation of the Union.

“The flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent”

Elmer Schattschneider, The Semisovereign People, 1960

* Jean Monnet Professor of European Union Law, HEC Paris; Visiting Professor at the European Political and Governance Studies Department, College of

Europe (Bruges); Founder and Director, The Good Lobby. This article benefited from over a decade of direct exposure to dozens of EU Commission’s

public consultations while acting as a pro bono advisor to a variety of civil society organisations. It also benefited from exchanges with many colleagues

both in academic and EU civil society, including Federico Anghelé, Dominique Be, Benjamin Bodson, Karine Caunes, Helen Darbishire, Cristina Gonzalez,

Lamin Khadar, Niccolò Milanese, James Organ, Pierpaolo Settembri, Gianluca Sgueo, Laura Sullivan, Tamara van Strijp, Tony Venables, Shahin Vallée, Cliff

Wirajendi, Richard Youngs as well as some EU officials who prefer to remain anonymous.

DOI: 10.1111/eulj.12371

114 © 2020 John Wiley & Sons Ltd. Eur Law J. 2020;26:114–135.wileyonlinelibrary.com/journal/eulj

1|INTRODUCTION

The European Union provides today an array of participatory opportunities to its citizens to engage with—and

potentially influence—EU decision-making. These participatory channels exist both within and outside of the EU

policy cycle. They include agenda-setting tools, such as petitions to the European Parliament and the European

Citizens' Initiative, input mechanisms in policy formation, such as public consultations on new initiatives, as well as a

multitude of administrative actions, such as requests for access to documents to the EU institutions and complaints

to the EU Ombudsman, as well as ex post review channels, such as Lighten the Load within the Refit Platform.

1

What

these participatory channels have in common is that, regardless of their immediate aims and scattered origin, they

enable citizens to play a role “in the Union's democratic life”,

2

and do so beyond the electoral moment. The resulting

EU participatory toolbox breathes life into the realm of EU participatory democracy, which complements representa-

tive democracy.

3

The aim of this article is to critically discuss the EU's oldest, “most widely travelled”

4

participatory channel—that

of EU Commission's public consultations

5

—in the light of the principle of political equality.

6

This principle has been

“constitutionalised”in the LisbonTreaty as one of the “democratic principles”

7

of the EU, and as such it supports the

realisation of one of the foundational “values”stemming from Article 2 TEU, namely “democracy”.

8

Article 9 TEU

requires EU institutions to pay “equal attention”to all citizens in the exercise of the Union's activities, including when

those participate in EU decision-making. Yet this provision largely remains a dormant clause, and has received

surprisingly little attention in EU legal scholarship.

9

Ten years after its introduction into the EU Treaties, the time might have come—amid growing public demand

for participation—for the awakening of Article 9 TEU and its democratic potential. In line with Beitz's theory of

political equality,

10

this article proposes a substantive interpretation of the concept of political equality (equal

opportunities of access) as a necessary, procedural condition for the realisation of EU democracy. It submits that

such an understanding of political equality as applied to the EU participatory democracy provisions, notably those

governing public consultations, may unleash a renewed vision of the role EU institutions must play in ensuring the

concretisation of the democratic principle through participation. In particular, the article argues and calls for a new

approach aimed at re-imagining public consultations as a privileged “political opportunity structure”capable of pro-

actively catalysing and facilitating the ability of ordinary citizens—as well as diffuse, under-resourced and traditionally

overlooked groups—to be better able to gain access to and influence EU policymaking. It demonstrates that, by alter-

ing both the legal and policy framework of public consultations and their surrounding participatory environment, it is

possible to rebalance power relations within and across particular policy areas.

11

This approach, which can and must

1

Besides these formal mechanisms of participation, there exist more channels of communication that are available to EU citizens, such as letters and

complaints that can be addressed to the EU institutions and bodies any time, and that have not been formalised under EU primary or secondary law.

2

Article 10(3) TFEU.

3

Since the LisbonTreaty, the Unionderives itsdemocratic legitimacynot only from representative democracy—whichremains its founding democratic

principle (German Constitutional Court in its judgment of 30 June 2009, BVerfG, 2 be 2/08)—but also from participatory democracy. See, on this point,

e.g., A. Kutay, ‘Limits of Participatory Democracy in European Governance’,(2015) 21 European Law Journal, 803–818, 814.

4

H. Hauser, ‘European Union Lobbying Post-Lisbon: An Economic Analysis’,(2011) 29 Berkeley Journal of International Law, 680–709, 694.

5

Consultation describes a process of gathering feedback, comments, evidence or other input on a specific area of EU action from outside the Commission.

There are various forms of consultation, including internet-based public consultation open to a broad audience and targeted consultation open to the most

closely affected stakeholders. For the purposes of this article, the focus will be on the most common form of consultation, internet-based and open to a

broad audience.

6

Article 9 TEU reads: ‘In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its

institutions, bodies, offices and agencies.’

7

Title II TEU.

8

Articles 2 and 10 TEU.

9

On the difficulty of thinking of the concept of politicalequality beyond the confines of the nation-state, see E. Erman and S. Nasström, Political Equality in

Transnational Democracy (Palgrave Macmillan, 2013).

10

Ch. Beitz, Political Equality: An Essayin DemocraticTheory (Princeton University Press, 1990).

11

For a contrarianview, seeT. Hueller, ‘ConceptualisingDemocratic Associational Involvement in EU Decision-Making—Contributions from Contemporary

Political Theory’,(2010) 45 Acta Politica, 298–319 (arguing that the EU “constitutional framework delimits the expectations of civil society participation

because CSOs could influence neither the ethos of integration nor the policy-making”).

ALEMANNO 115