Open Stakeholder Consultations at the European Level—Voice of the Citizens?

• Published date: 01 March 2015
• DOI: http://doi.org/10.1111/eulj.12084
• Date: 01 March 2015
• Author: Christian Marxsen

Open Stakeholder Consultations at the

European Level—Voice of the Citizens?

Christian Marxsen*

Abstract: The European Commission’s open consultations of stakeholders are a central

mechanism of the attempt to practice participatory governance at the European level and

to open the political process to contributions from the societal sphere. This paper

analyses the current practice of open consultations as one important operationalisation

of participatory governance and as an implementation of Article 11 of the Treaty of the

European Union (TEU). It asks whether consultations can be a means to give voice to

the citizens and to increase the legitimacy of European institutions. The paper presents

an empirical analysis of the field of participants in the consultations. A main finding is

that business and industry organisations dominate the consultative process while the

participation of citizens and not-for-profit organisations is generally weak. The paper

explores to which extent the consultations can, considering the empirical findings, be

seen as a suitable way for direct or representative citizen participation.

I Introduction

The EU suffers a legitimacy deficit. The reasons for that have been broadly discussed

in recent years. The discrepancy between the EU’s regulatory power and the demo-

cratic justification of its organs,1the intergovernmental character that sets the danger

to circumvent national procedures of legislation by allowing executives to extend their

powers at the European level2and the detachment of European institutions from the

lives of citizens3—all these are critiques that point out that European institutions are

lacking inclusiveness and participatory chances for citizens.4

* Dr. iur., LL.M., Senior Research Fellow, Max Planck Institute for Comparative Public and Public

International Law, Heidelberg, Germany. I thank Gráinne de Búrca and the anonymous reviewers of the

European Law Journal for their most helpful remarks on earlier drafts. All mistakes are mine.

1See for a discussion of the ‘standard version’ of the democratic deficit within the EU: J.H.H. Weiler,

U. Haltern and F. Mayer, European Democracy and Its Critique—Five Uneasy Pieces, EUI Working

Paper RSC no. 95/11.

2See in that sense Jürgen Habermas’ critique against what he calls an ‘executive federalism’: J. Habermas,

‘The Crisis of the European Union in the Light of a Constitutionalization of International Law’, (2012)

23 (2) European Journal of International Law 335–348.

3See A. Follesdal and S. Hix, ‘Why There Is a Democratic Deficit in the EU: A Response to Majone and

Moravcsik’, (2006) 44 Journal of Common Market Studies 533–562, 536.

4See also the argument against the existence of a legitimacy deficit in: A. Moravcsik, ‘In Defence of the

“Democratic Deficit”: Reassessing Legitimacy in the European Union’, (2002) 40 Journal of Common

Market Studies 603–624.

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As there is no obvious way in which ‘classical’ concepts of representative democ-

racy can readily be projected to the EU, different alternative and innovative strategies

to increase the legitimacy of the EU have been put forward over the years. The whole

discourse on ‘governance’ is underpinned by the assumption that the legitimacy

equation could be solved, even if solved differently, at the European level. Within that

governance paradigm, and outstandingly in the Commission’s White Paper on Gov-

ernance,5participatory democracy was ambiguously characterised as both a comple-

ment and an alternative to representative democracy.6The importance of the concept

as a foundational principle of the Union has been stressed by the Lisbon Treaty which

has codified the concept into the primary law of the Union (Article 11 TEU). Par-

ticipatory democracy identifies democratic legitimacy with inclusiveness and partici-

patory chances for citizens and stakeholders. A central operationalisation of this

concept is the generalisation of consultation mechanisms in which the Commission

reaches out to citizens and stakeholders and asks for their contribution.

This paper examines the Commission’s open consultation process as one form of

participatory governance and raises the question whether such consultations effec-

tively give voice to citizens and thus can at least partly substitute for the underdevel-

oped institutions of representative democracy at the European level. The aim is to

explore the legitimating potential as well as the limitations of the Commission’s

approach to participatory governance by analysing one of its central mechanisms.

In the following, I will firstly introduce the understanding of governance that

underlies the Commission’s consultative mechanism in more detail (II.). Secondly, I

will explain how the consultation process is supposed to promote legitimate decision

making and introduce its basic design (III.). The third section presents an empirical

evaluation of the participants in the consultations of the year 2011. It elucidates the

field of groups that participate and dominate the process (IV.). The results of this

study show that the process is mostly dominated by organisations with an industry or

business background, whereas citizen participation and the participation of not-for-

profit groups rank low in the vast majority of consultations. Based on these empirical

results, I will eventually discuss the challenges that arise when the consultative process

shall be understood as an attempt to give voice to the citizens and I will highlight

some general limitations of the Commission’s governance approach (V.).

II History and Principles of Participatory Governance

From the beginning, European integration has had a close link to societal organisa-

tions.7Already the European Coal and Steel Community included a consultative

body, comprised of representatives of producers, workers, consumers and dealers.8

The Treaties of Rome followed this example in 1957 and provided for the establish-

ment of the European Economic and Social Committee (EESC).9The EESC is

designed as an advisory body that can be consulted by the European Parliament, the

5European Commission, European Governance—A White Paper, 25.7.2001, COM(2001) 428 final.

6See for a critical take on the concept of governance instead of government: C. Shore, ‘European

Governance or Governmentality? The European Commission and the Future of Democratic Govern-

ment’, (2011) 17 European Law Journal 287–303.

7S. Smismans, ‘The European Economic and Social Committee: Towards Deliberative Democracy via a

Functional Assembly’, European Integration online Papers (EIoP), Vol. 4 (2000) no. 12, 3.

8Treaty establishing the European Coal and Steel Community, signed 1951, Articles 18–19.

9Today, the relevant provisions are Article 300–304 TEU.

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