Why the Open Method of Coordination Is Bad For You: A Letter to the EU

Published date01 May 2007
Date01 May 2007
Why the Open Method of Coordination Is
Bad For You: A Letter to the EU
Vassilis Hatzopoulos*
Abstract: During the last years, and especially since the launch of the Lisbon agenda in
2000, the literature on the open method of coordination (OMC) has grown exponentially.
Most writers explore the tentative outcomes of the method, since they lack a solid
experimental background, against which to assess its actual effectiveness. Lately, however,
some empirical studies have come to light. Among them, some fully discredit the OMC as
a means of pursuing common policies at the EU level; while others recognise indirect
effects, essentially at the national level of policy setting. On the basis of this assumption, i.e.
that the OMC has only restricted direct effects in the short term and indirect effects in the
medium to long term, the present article f‌irst puts forward a series of arguments against the
current ‘spread’ of the OMC, and then offers some proposals on how to neutralise some of
the identif‌ied shortfalls of the OMC. Despite the title of the article, the f‌inal conclusion is
not for the demise of the OMC, but rather for its ‘communautarisation’. It is put forward
that both the application and the effects of the OMC should be more clearly def‌ined and
better integrated with the other pre-existing forms of cooperation, in accordance with basic
requirements stemming from the Community legal order.
I Introduction
The aim of the present ‘letter’ is to provoke, rather than to prove. It is intended to
stimulate further the—already well-engaged—scientif‌ic dialogue on the open method
of coordination (OMC).1This explains why some of the arguments put forward are not
entirely new, while others are overstretched.
* Assistant Professor at the Democritus University of Thrace (Greece), Visiting Professor at the College of
Europe, Bruges (Belgium), Jean Monnet Fellow at the University of Michigan (USA). I would like to
thank Eric Stein, Jonathan Zeitlin, Daniel Halberstam, Mariely López-Santana and Yannis Karagiannis
for their comments on a previous draft—the usual disclaimer applies. I would also like to acknowledge
funding by the Milton and Miriam Handler Foundation, during my term in the University of Michigan,
where the present article was completed. Comments welcome at vasshatz@socadm.duth.gr.
1See, among many, the books (in order of relevance) by J. Zeitlin and P. Pochet (eds), The Open Method
of Coordination in Action: The European Employment and Social Inclusion Strategies (P.I.E. Peter Lang,
2005); R. Dehousse (ed.), L’Europe sans Bruxelles? Une analyse de la Methode Ouverte de Coordination
(L’Harmattan, 2004); F. Snyder (ed.), The EU and Governance—L’UE et la Gouvernance (Bruylant,
2003); G. de Burca and J. Scott, Law and New Governance in the EU and the US (Hart, 2006); the
special issues (2002) 8 European Law Journal and (2004) 2 JEPP dedicated to the OMC and other new
methods of governance (individual articles from these issues are cited only to the extent that they have
been specif‌ically used); also the articles in English (in reverse chronological order): E. Szyszczak,
European Law Journal, Vol. 13, No. 3, May 2007, pp. 309–342.
© 2007 The Author
Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
This contribution, belated as it is entering into the debate, has the benef‌it of some
hindsight. This hindsight is based on three factors (in chronological order): a) the fact
that the author has participated himself as a member of a national delegation in one of
the OMC-induced benchmarking exercises (only to see the f‌inal evaluation report
getting lost in the Labyrinth of the national bureaucracy, despite the fact that it
contained an overall favourable assessment), as well as in an Organisation for Eco-
nomic Cooperation and Development (OECD)-led exercise of coordination, concern-
ing regulatory reform; b) the extremely rich and knowledgeable academic input,
offering a very promising theoretical background for the OMC; and c) some recent
empirical research as to the eff‌iciency of the OMC, the accounts of which are, to say the
least, ambiguous.
This recent empirical research grounds the basic assumption of the present article:
that the OMC has only restricted, if not negligible, direct effects in the short term, while
it may have some indirect effects in the medium to long term (section II). On the basis
of this assumption, a series of arguments against the current ‘spread’ of the OMC will
be put forward (section III). Some proposals on how to neutralise some of the shortfalls
of the OMC will follow (section IV).
‘Experimental Governance: The Open Method of Coordination’ (2006) 12 European Law Journal 486;
S. de la Rosa, ‘The OMC in the New Member States—The Perspectives for its Use as a Tool of Soft
Law’ (2005) 11 European Law Journal 618; D. Trubek and L. Trubek, ‘Hard and Soft Law in the Con-
struction of Social Europe: the Role of the OMC’ (2005) 11 European Law Journal 343; K. Jacobsson,
‘Between Deliberation and Discipline: Soft Governance in EU Employment Policy’, in U. Mörth (ed.)
Soft Law and Governance and Regulation: An Interdisciplinary Analysis (Edward Elgar, 2004);
D. Ashiagbor, ‘Soft Harmonisation: The OMC in the EES’ (2004) European Public Law 305; I Maher,
‘Law and the OMC: Towards a New Flexibility in European Policy-Making?’ (2004) 2 Journal for
Comparative Government and European Policy 2; D. Hodson and I. Maher, ‘Soft Law and Sanctions:
Economic Policy Coordination and Reform of the Stability and Growth Pact’ (2004) JEPP 798;
A. Schaefer, ‘A New Effective Form of Governance? Comparing the OMC to Multilateral Surveillance
by the IMF and the OECD’ (2004), paper available by the Max Plank Institute at http://www.mpi-
fg-koeln.mpg.de; G. de Burca, ‘The Constitutional Challenge of New Governance in the EU’ (2003)
ELRev 814; G. de Burca and J. Zeitlin, ‘Constitutionalising the OMC, What Should the Convention
Propose?’ (31/2003), CEPS Policy Brief, available at http://www.ceps.be; D. Wincott, ‘Beyond Social
Regulation? New Instruments and/or a New Agenda for Social Policy at Lisbon?’ (2003) Public Admin-
istration 533; S. Regent, ‘The OMC: A New Supranational Form of Governance?’ (2003) 9 European
Law Journal 190; A. Sbragia, ‘The Dilemma of Governance with Government’, Jean Monnet Working
paper 3/02; R. Dehousse, ‘Misf‌its: EU Law and the Transformation of European Governance’, Jean
Monnet Working paper 2/02; C. de la Porte, Ph. Pochet and G. Room, ‘Social Benchmarking, Policy
Making and New Governance in the EU’ (2001) JESP 291; G. Pagoulatos and M. Stasinopoulou,
‘Governance in EU Social Employment Policy: A Survey’, (2006) Report for the Study on Social Impact
of Globalisation in the EU (SIMGLOBE) European Commission and CEPS (VC/2005/0228); see
also the articles in French: Th. Georgopoulos, ‘La MOC européenne: en attendant Godot?’, (1/2005)
McGil Institute for European Studies, available at http://www.iee.umontreal.ca/pubicationsfr_
f‌ichiers/DIVERS/Georgopoulos-Texte.pdf; J. Goetschy, ‘L’apport de la méthode ouverte de coordina-
tion à l’intégration Européenne’, in P. Magnette (ed.), La Grande Europe (Editions de l’ULB, 2004);
M. Blanquet, ‘Le système communautaire à l’épreuve de la “gouvernance européenne”: Pour une
“nouvelle gouvernance raisonnée” ’, in Mélanges en hommage à G. Isaac, vol. 1 (Presses de l’ Université
de Toulouse, 2004), p. 239; M. Telo, ‘La gouvernance économique et sociale et la réforme des traités:
la MOC’, in Mélanges en hommage à J.V. Louis, vol. 1 (Editions de l’ULB, 2003), p. 479; S. Cafaro,
‘La MOC, l’action communautaire et le rôle politique du Conseil Européen’, in Mélanges en hommage
à J.V. Louis, vol. 2 (Editions de l’ULB, 2003), p. 203. A full list of bibliographic references is to be
found at the Wisconsin/Madison EU Center’s of Excellence website at http://eucenter.wisc.edu/OMC/
European Law Journal Volume 13
© 2007 The Author
310 Journal compilation © 2007 Blackwell Publishing Ltd.
II A First Empirical Assessment of the Effectiveness of the OMC
Before assessing the effectiveness of the OMC, both in the short and in the medium/
long term (sections B and C), a very brief presentation of the method has to be
undertaken (section A).
A Brief Overview of the OMCs
While the term ‘open method of coordination’ only dates back to the 2000 Spring
European Council held in Lisbon, the method itself has been around for much longer:
a (strong) variant thereof, instituted by the Maastricht Treaty (1992), has underpinned
the economic coordination which eventually led to and still drives the European
Monetary Union (EMU), while the European Employment Strategy (EES) instituted
by the Amsterdam Treaty (1997) is also based on this method.2Nonetheless, the
contribution of the Lisbon summit was of a threefold nature: a) it gave the method a
name; b) it recognised that it may be used in f‌ields for which there is no Treaty basis;
and c) it designated it as the core instrument for the achievement of the so-called Lisbon
objectives; namely, the acceleration of the overall EU growth rate and the increase of
employment, under conditions of social cohesion and of respect of the environment.
Although advertised as such (notably by the Lisbon European Council), this method
is hardly new. First, it corresponds to practices followed by other regional or interna-
tional fora of economic coordination, such as the OECD, the International Monetary
Fund, etc.3Second, it is based both on earlier ‘processes’ (such as the ones initiated in
Luxembourg and Cologne for the employment policy, or in Cardiff for the environ-
mental policy) and on previous Commission initiatives, based on soft law, experience
sharing, mutual learning, iterative evaluation of the policies pursued, etc.4Third, and
more fundamentally, it may be seen as a further transformation of the traditional
‘Community method’, furthering the 1985 ‘new approach’.5Compared to the new
approach,6the OMC constitutes an even more f‌lexible form of cooperation, based on
commonly agreed indicators and/or benchmarks (not standards), which (like stan-
dards) allow for diversif‌ication and (again, like many standards) are not binding. This
new ‘open’ method is also quite dependent on the industry and on experts (for the
choice and formulation of indicators and benchmarks), but is more political and more
intergovernmental, in the sense that the last word is given by the Council and the
2Most commentators view the system of economic coordination instituted by the Maastricht Treaty and
the ensuing Stability and Growth Pact (SGP) as a precocious form of OMC; J. Zeitlin, however, in his
comments on a previous draft of the present article, doubts the correctness of such a qualif‌ication. He
points out that the SGP ‘involves no concern for cross-national learning or revision of objectives in light
of experience, but is intended simply as a device for ensuring national compliance with arbitrary f‌ixed
targets’. From a constructivist point of view, Zeitlin’s view seems to be more accurate; while viewed from
a normative point of view, the SGP does present important similarities with the OMC.
3See A. Schaefer, ‘A New Effective Form of Governance? Comparing the OMC to Multilateral Surveil-
lance by the IMF and the OECD’ (2004), paper available from the Max Plank Institute at http://www.
4See D. Wincott, ‘Beyond Social Regulation? New Instruments and/or a New Agenda for Social Policy at
Lisbon?’ (2003) Public Administration 533, at 537.
5See V. Hatzopoulos, ‘A (More) Social Europe: A Political Crossroad or a Legal One-way? Dialogues
Between Luxembourg and Lisbon’ (2005) Common Market Law Review 1599, at 1630.
6Based on minimal harmonisation (often through standardisation) and mutual recognition, see Council
Resolution of the 7 May 1985 for a new approach concerning technical harmonisation and standardisa-
tion [1985] OJ C136/1.
May 2007 The Open Method of Coordination
© 2007 The Author 311
Journal compilation © 2007 Blackwell Publishing Ltd.

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