Limits of Participatory Democracy in European Governance

Date01 November 2015
Published date01 November 2015
Limits of Participatory Democracy in
European Governance
Acar Kutay*
Abstract: The Lisbon Treaty (Article 11) recognises the provision on participatory de-
mocracy as a democratic principle of the European Union (EU), thus constitutionally
legitimising the involvement of civil society in European governance. However, at least
three issues relating to the democratic dimension of this practice remain unresolved. First,
it is not possible to specify precisely how the participation of civil society relates to democ-
racy. Second, having established representative democracy as the founding democratic
principle of the EU (Article 10), the Lisbon Treaty does not allow assessing the provision
on participatory democracy as an independent source for democracy. Third, the putative
democratising potential of participation would not be construed independently, not only
because representative democracy is dened as the founding principle of the EU but also
because participation cannot be thought of as independent from the form of the consulta-
tion regime, the constitutional framework and the managerial and technocratic styles of
I Introduction
The aim of this article is to make sense of Article 11 of the Treaty on EU (TEU or
Lisbon Treaty) by means of clarifying the relationship between civil society participation
and democratic legitimacy. To do this, we need to go beyond the systematic interpreta-
tion of legal norms and engage with theoretically informed empirical studies and with
normative debates on civil society. This requires taking a step back from the institu-
tionaldiscourse on civil society
and rethinking three key dimensions of the participa-
tion paradigm.
First, is participation an unqualied good thing? Or to put it differently, does more
participation always result in increased democratic legitimacy? Much depends on who
participates and on the underlying reason that moves people to participate. Therefore,
democratic and legal theory should compel European institutions to reconsider the far
too linear connection they tend to assume between participation and democratic
Second, should participatory democracy (Article 11 TEU) be regarded as an alterna-
tive to representative democracy (Article 10 TEU)? Or should participation by civil
society organisations (CSOs) be considered part of the processes characteristic of
* Postdoctoral fellow, Lund University, Sweden. Email:
B. Kohler-Koch & C. Quittkat (Eds.), De-mystication of Participatory Democracy: EU-governance and
Civil Society (Oxford University Press, 2013); P. Magnette, European Governance and Civic Participation:
Beyond Elitist Citizenship, (2003) 51 Political Studies 144160.
European Law Journal, Vol. 21, No. 6, November 2015, pp. 803818.
© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
representative democracy?
When evaluating participatory democracy in the European
Union (EU), it is unavoidable to consider that European institutions have come to
favour a very narrow and pragmatic understanding of civil society. Civil society is iden-
tied with the umbrella non-governmental organisation (NGO) networks that are
characterised as standingon behalf of Europe as a whole. CSOs are described as trans-
mission belts, mediators, connections and bridges, but such metaphors should not be
taken at face value. They deserve critical attention. But the literature, with few excep-
does not question such a conceptual relationship between CSOs, participation
and representation. This article lls this gap.
Third, what are the potential pathologies of participatory democracy? Civil society
participation promises the building of the general will from the bottom up. However,
we should be aware that under the appearance of widespread participation, we might
nd the manufacturing of participation or what is generally labelled participatory en-
Political interference in xing the presumed accountability issues of CSOs
in terms of managerial principles
and neo-plural forms of interest intermediation might
result in the domination of bureaucratic and neoliberal rationalities within the CSOs.
Thus conceived, the legal norms of participation and current consultation practices
might in fact be dening and prescribing the boundaries of a legitimate civil society
in a de-politicised way. If that were so, the result would be to restrict, exclude and
de-legitimise other groups in civil society.
On the whole, the aim of this article is not to suggest that the provision on participa-
tion should be deleted or that CSOs should be eliminated. Rather, the democratic legit-
imacy stemming from the involvement of civil society in EU governance must be
considered in relation to other structural factors. Among such factors, we should
include the current mode of EU integration, the roles of EU institutions, the nature
of the EU Commissions consultation regime and, not least, the place of representative
democracy as enshrined in the Lisbon Treaty, where it is characterised as one of the
founding principles of European constitutional law.
As is argued infra, Article 11 conceives participation as a different source of democracy from that of repre-
sentation, even though the Lisbon Treaty established representative democracy as the founding democratic
principle of the EU (Article 10). However, the generally accepted denition of representation provided by
Hanna Pitkinto make something present in some sensemakes it possible to read the contentions of par-
ticipation literature and the discourse of the Commission through the lenses of representation. Ingeneral, both
the supporters and critics of civil society participation appear to agree that CSOs bring forth the interests,dis-
courses or lived experiences of the citizens, which requires some kind of representation: delegate, discursive or
functional, respectively. See, H. F. Pitkin, The Concept of Representation (Univ of California Press, 1967).
S. Kröger, Creating a European Demos? The Representativeness of European Umbrella Organisations,
(2013) 35 Journal of European Integration 583600.
T. Zittel & F. Dieter (Eds.) Participatory Democracy and Political Participation: Can Participatory Engi-
neering Bring Citizens Back In? (Routledge, 2007).
Commission of the European Communities, The Commission and Non-governmental Organisations:
Building a Stronger Partnership, Com (2000) 11 nal, available at
civil_society/ngo/docs/communication_en.pdf; D. Castiglione and M. E. Warren, Rethinking Representa-
tion: Eight Theoretical Issues, Presented at the Conference on Rethinking Democratic Representation, Uni-
versity of British Columbia, Vancouver (2006), on le with the author; R. Goodin, Democratic
Accountability: The Third Sector and All, Working Paper no. 19, (Cambridge: MA: The Hauser Center,
Harvard University, 2003).
Neo-plural interest intermediation, in this case, refers to the competition between partial particular interests
to inuence policies and decision-making processes. It also implies the aggregation of particular interests from
the local level. See J. Greenwood, Interest Representation in the European Union (Palgrave Macmillan, 2007).
European Law Journal Volume 21
© 2015 John Wiley & Sons Ltd.804

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