Limits of Participatory Democracy in European Governance

• Date: 01 November 2015
• Published date: 01 November 2015
• DOI: http://doi.org/10.1111/eulj.12156
• Author: Acar Kutay

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 defined 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

policy-making.

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-

tional’discourse on civil society

1

and rethinking three key dimensions of the participa-

tion paradigm.

First, is participation an unqualified 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

legitimacy.

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: acarkutay@yahoo.com.

1

B. Kohler-Koch & C. Quittkat (Eds.), De-mystification 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 144–160.

European Law Journal, Vol. 21, No. 6, November 2015, pp. 803–818.

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representative democracy?

2

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-

tified with the umbrella non-governmental organisation (NGO) networks that are

characterised as ‘standing’on 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-

tions,

3

does not question such a conceptual relationship between CSOs, participation

and representation. This article fills 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

find the manufacturing of participation or what is generally labelled ‘participatory en-

gineering’.

4

Political interference in fixing the presumed accountability issues of CSOs

in terms of managerial principles

5

and neo-plural forms of interest intermediation might

result in the domination of bureaucratic and neoliberal rationalities within the CSOs.

6

Thus conceived, the legal norms of participation and current consultation practices

might in fact be defining 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 Commission’s 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.

2

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 definition of representation provided by

Hanna Pitkin—to make something present in some sense—makes 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).

3

S. Kröger, ‘Creating a European Demos? The Representativeness of European Umbrella Organisations’,

(2013) 35 Journal of European Integration 583–600.

4

T. Zittel & F. Dieter (Eds.) Participatory Democracy and Political Participation: Can Participatory Engi-

neering Bring Citizens Back In? (Routledge, 2007).

5

Commission of the European Communities, ‘The Commission and Non-governmental Organisations:

Building a Stronger Partnership’, Com (2000) 11 final, available at http://ec.europa.eu/transparency/

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 file with the author; R. Goodin, ‘Democratic

Accountability: The Third Sector and All’, Working Paper no. 19, (Cambridge: MA: The Hauser Center,

Harvard University, 2003).

6

Neo-plural interest intermediation, in this case, refers to the competition between partial particular interests

to influence 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).

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