Diffuse control mechanisms in the European Union

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Introduction: Diffuse control mechanisms in the European Union: towards a new democracy? a

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Olivier Costa , Nicolas Jabko , Christian Lequesne & Paul Magnette

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CERVL , Bordeaux, France

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Centre d'Etudes et de Recherches Internationales (CERI) of Sciences Po , Paris, France

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Fondation Nationale des Sciences Politiques

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Institut d'études européennes , University of Brussels , Belgium Published online: 04 Feb 2011.

To cite this article: Olivier Costa , Nicolas Jabko , Christian Lequesne & Paul Magnette (2003) Introduction: Diffuse control mechanisms in the European Union: towards a new democracy?, Journal of European Public Policy, 10:5, 666-676, DOI: 10.1080/1350176032000124023 To link to this article: http://dx.doi.org/10.1080/1350176032000124023

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Journal of European Public Policy 10:5 October 2003: 666–676

Introduction: Diffuse control mechanisms in the European Union: towards a new democracy?

Downloaded by [Sciences Po Bordeaux ] at 03:45 13 October 2014

Olivier Costa, Nicolas Jabko, Christian Lequesne and Paul Magnette

ABSTRACT One of the most important developments of western democracies in recent years is the demand for more democratic control and accountability. This new demand can be observed in the constant increase of mechanisms of control over political bodies and institutions, and also the diversification of these mechanisms. At the EU level, these changes are so clear that many policy-makers and scholars feel that it is bringing about a renewal of democracy. Since this article goes along with normative judgement, it is necessary to investigate these transformations with the following questions: Has the EU developed a new model of democracy that could be called ‘diffuse democracy’ and is better suited to its particular structure? Is it merely an extension of the notion of ‘legal community’? The case studies assembled in this special issue seek to grasp the reality of accountability mechanisms in the EU and to assess whether they can be considered as elements of a new democratic paradigm. KEY WORDS Control and accountability in the EU; diffusion of power; supranational democracy.

One of the most striking developments in academic research on democracy over the past decades has been the development of new issues in the domain of control and accountability, and it would be wrong to regard this phenomenon as a passing fashion without any lasting consequences. Whereas the theoretical analysis had mainly been centred on participative democracy and public debate in Europe and the USA during the 1970s and the 1980s, new demands in terms of accountability progressively led to the prevalence of a liberal and procedural vision of democracy that focused on the responsibility of political leaders and decision-makers (Przeworski et al. 1999; Manin 1995). The scope of research thus broadened – the notion of ‘political accountability’ was no longer addressed only in terms of relations between governments and parliaments, and new questions about the diffuse character of power and accountability emerged, in view of the growing complexity and fragmentation Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124023


O. Costa et al.: Towards a new democracy?

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of the executive power which increasingly resorted to outsourcing and decentralization. In parallel, the establishment of extra-parliamentary control mechanisms, where citizens played a more significant role, led to further interrogations about the extension of the accountability mechanisms outside the political sphere. This new approach – which prevailed in all European democracies in the 1990s – was also adopted by researchers on the European Union (EU). The focus on the ‘democratic deficit’ in the EU and the weakness of the European Parliament’s (EP’s) legislative powers in the 1980s is now centred on the notion of accountability. There is no consensus on this question – whether the EU offers enough guarantees of transparency or not. Some specialists think that the EU chronically lacks accountability, which is detrimental to its development as a democratic political system (Schmitter 2000; Weiler 1997; Wallace and Smith 1997). They also considered that the narrow social bases together with the fact that the EU is almost non-existent in the field of social policies – a foundation of the democratic legitimacy of the member states – mark out the EU as a political system endowed with a low legitimacy (Scharpf 1999). Conversely, some researchers consider that the ‘democratic deficit’ issue is in fact a non-problem. In their view, the European institutions do not have the necessary autonomy and power to support the idea of any ‘despotism in Brussels’ vis-a`-vis the national governments which not only decide on the future of the EU, but are also the guardians of democratic legitimacy (Moravcsik 2001). There is a problem of democratic legitimacy only because it is not part of the EU’s brief to interfere in problems of redistribution of wealth; according to them, it should rather regulate the economy with a view to achieving objectives of efficiency (Majone 1996, 1998). Some academics even claim that the EU is far from suffering from any democratic deficit but is rather inventing a new model of democracy, essentially founded on diffuse mechanisms of control of the public authorities (Greven and Pauly 2000; Anderson 1999; He´ritier 1999). The aim of our study – based on detailed and thorough empirical investigations – is to bring a new contribution to this theoretical debate. We propose to address a dual question. Can we support the idea that the multiplication and diversification of control mechanisms of the public authorities are an original transformation of the political praxis, or the natural development of former trends? To what extent can this evolution, which affects mechanisms that pertain to the rule of law and to democracy, be considered as heralding a new model of democracy? Our initial stance has been to consider that the EU is a structure endowed with ever more power, rather than wonder whether it respects its role or not. It is a well-known fact that the institutional actors seek to legitimize their actions through their expertise and their capacity to carry out ‘effective’ public policies. It is obvious that such working methods do not really clarify in a public and open debate what is at stake in the construction of Europe. But these actors also acknowledge the criticisms made to them, and they sometimes suggest original solutions. The question is therefore


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whether the remedies that are proposed are full of promise, or mere symbolic contributions in the debate on democracy in Europe – which could prove to be counterproductive (Christiansen 1997; Spence 2000). The main reason why our analysis centres on the EU is that European integration has been one of the major catalysts in the debate on accountability since the early 1980s, not only in the national political systems but also at the international level (Nye 2001). The Treaty of Maastricht triggered unprecedented politicization of Community issues. The member governments opened Pandora’s box when they decided on the creation of a ‘European Union’. In the course of a few years, the development and objectives of the European Community have given rise to intense public debates. The EU has also been the butt of harsh criticism from representatives of the ‘civil society’, notably the most activist anti-globalization non-governmental organizations (NGOs). Beyond the somewhat ritual denunciation of the ‘democratic deficit’ and ‘economism’ in the EU process, such sudden awareness of the importance of the EU in the member states’ politics has led to the problem of whether EU politics complied with the great principles of democracy being addressed. Indeed, nothing is more justified than to question the growing independence of the European judges and European Central Bank (ECB) bankers, the emergence of arbitration bodies between the citizens and the authorities, or the concrete meaning of the principle of the policy-makers’ accountability to the EP. Some political practices and developments within states thus seem to become acute problems when they appear at the European or international level. In a sense, it is no surprise that a debate on democracy in the EU should have cropped up. In view of the EU’s heightened political weight and visibility in European politics, its institutional mechanisms are bound to come under close scrutiny, with respect to the democratic principles that regulate the various member states. More broadly speaking, any interrogation on the future of democracy in Europe necessarily addresses the EU more particularly. In many respects, this system, which is being built in an experimental way rather than according to a general plan, seems to be a workshop of contemporary political transformations, a crucible where national constitutional traditions mix and merge, where the EU accentuates and extends changes which appear in a less explicit way within the member states. TOWARDS THE DIFFUSION OF POWER MECHANISMS From an analytical perspective, three main instances of diffuse power within the EU and the member states can be distinguished. 1. The continuous fragmentation of the executive sphere: the ‘government’, as defined through constitutional theories, tends to delegate an increasing proportion of its tasks to bodies which are either under its direct control (ministerial departments, cabinets, decentralized authorities) or granted some form of



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independence in the decision-making process (central banks, independent administrative authorities, regulatory agencies). There is here the double problem of ensuring both efficiency and fair representation. Does a body with delegated power (‘agent’) contribute, through its actions, to achieving the objectives chosen by the executive power that has granted this delegation of power? 2. Multiple access channels to decision-making: political parties, which enjoyed a quasi monopolistic position for almost a century as the representatives of the social body, have now to compete with new actors who claim that they also ‘represent’ the civil society (interest groups, NGOs, associations). ‘Public opinion’ and the ‘civil society’ are increasingly considered as effective actors in governance (Manin 1995). This situation is not new in the USA where lobbies have always enjoyed a high degree of legitimacy as the upholders of citizens’ preferences and choices, but it is a novelty in Europe where unitary governments tended to have the monopoly of legitimate representation of the people (Schmidt 1999). 3. Multiple control mechanisms of political authorities: owing to the growing complexity of political systems, parliaments can no longer claim that they alone control public life. They have been obliged to adapt their working methods to new forms of power; besides, new forms of control outside the sphere of parliamentary control have developed over the past thirty years (constitutional courts, courts of auditors, ombudsmen, audit bodies). This special issue of the Journal of European Public Policy will focus mainly on the third category of control mechanisms, not because this topic is more important than the other two forms of diffuse power, but because it has been analysed less in research work on the EU. Many legal or political studies have indeed been conducted on multi-level governance, its actors and policy-making in Europe (Wallace and Young 1997; Wallace and Wallace 2000; Lequesne 2001), but conversely the diffusion of control mechanisms has not been analysed much. Our purpose has also been motivated by another reason, namely the prevalent vision which exists in the EU institutions – with the exception of the EP – and which is shared by many researchers, that the multiplication of control mechanisms has renewed and enriched democracy in the EU (De Schutter et al. 2001). Such a normative vision poses a double challenge to researchers who must try to understand the origins of such institutional changes and must also determine whether these changes may be regarded as instances of a new democratic paradigm. Tentative answers are proposed in this special issue. Paul Magnette has studied the most symbolic institution in the EU, the Ombudsman. Christian Lequesne and Philippe Rivaud have analysed the origins and significance of the recent transformation of the EP, which has turned into a board of censors for the European Commission. Nicolas Jabko has explored the new, independent European Central Bank and its consequences, with new demands

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in terms of accountability from political power, since the Treaty of Maastricht was signed ten years ago. Olivier Costa has focused his attention on the European Court of Justice which has taken on the role of legal defender of individual rights, without questioning its own methods of working. Brigid Laffan has analysed the sudden importance taken on by the European Court of Auditors, in the context of growing criticism over financial management by the European authorities. Ve´ronique Pujas has conducted research on the much debated establishment of the European Anti-Fraud Office (OLAF), a supranational body in charge of fighting against fraud and corruption. Renaud Dehousse has worked on the development of comitology as a means of control in the EU, and Adrienne He´ritier proposes a typology of the various modalities of accountability and democratic transparency. THE MULTIPLICATION OF CONTROL MECHANISMS The diffusion of power is one of the main features of political modernity but its dynamics is rarely studied – which is the objective of this special issue. Most research on the EU focuses on its institutional complexity and the intertwining of various levels of power but does not really tackle the problem of the origin of these phenomena. Our intention is not to give a general theory of multi-level governance, but four factors that may explain the present configuration of the EU can be highlighted. First, the multiplication of control mechanisms in the EU is part and parcel of a general trend towards more accountability from decision-making authorities in the Western world over the past twenty years. New control bodies have been set up everywhere with the task of checking that governments abide by their budget obligations, and of preventing and sanctioning instances of fraud and corruption. The creation of a Court of Auditors, a Court of First Instance and an Anti-Fraud Office in Europe, as well as the formal right of the EP to set up inquiry committees, reflect this Zeitgeist. Likewise, the appointment of a European Ombudsman and the commitment to transparency established in the Maastricht Treaty are the logical consequences of the new developments within the states towards greater control of public authorities by vigilant citizens (Beaud and Blanquer 1999; Przeworski et al. 1999). Second, the unprecedented importance of this phenomenon may partly be explained by the inter-state foundations of the EU. A political system which is based on collaboration between states must be paralleled by reciprocal control mechanisms. Such ideal mutual confidence was more a matter of ambition than of real practice; when the six founding states of the original Community created a High Authority (which has since become the European Commission) and a Court of Justice, their aim was to give themselves the means to verify that member states respected their obligations. The Commission has been under the permanent control of governments which have made sure that it would not go beyond its competences. The development and the growing complexity of the EU institutional system have increased this trend. When the



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Commission was given new policy-making missions, governments were careful to create committees composed of civil servants and national experts in charge of controlling the Commission (Christiansen and Kirchner 2000). Such a loose conglomerate of multiple committees made it necessary to set up new control mechanisms. In the same vein, the ECB was created some forty years later – governments delegated essential monetary functions to the ECB under the condition that it would report to the EP. The third factor that may explain these institutional developments is the evolutionary nature of the EU ‘Constitution’. Each enlargement has given the newcomers the opportunity to defend ‘their’ conception of democracy and to try to incorporate some of the founding principles of their national constitutional cultures in the Treaties. It is no surprise that strengthened control by Parliament ranked high on the European agenda after the United Kingdom and Denmark joined the EU (Costa 2001). Likewise, the establishment of the principle of transparency and of extra-judicial control mechanisms coincided with the membership of Sweden and Finland (Grønbech-Jensen 1998). On the contrary, the fact that member states should be suspicious of any attempt at imposing a single national model at EU level has ensured constant institutional inventiveness and may explain the attractiveness of extra-European democratic models. In that respect, the American model is attractive as many Europeans see the United States as an ideal of democratic modernity where norms and practices of accountability have developed because of a marked division in state power. As the EU differs from the unitarian model prevalent in all European democratic systems, it has therefore become necessary to find new institutional forms of democracy. The fourth factor is linked to the acknowledged, though relative, failure of the EU’s previous strategies towards heightened democracy. Until the late 1980s, in keeping with an opinion long held by Members of the European Parliament and many researchers, governments had thought that it was sufficient to increase the EP’s powers to make up the democratic deficit in the EU (Dehousse 1995). Increasingly low turnouts in European elections and citizens’ low rates of satisfaction with the way the EU works, as shown in opinion polls, have significantly weakened the weight of this argument. While continuously extending the law-making prerogatives of the EP, as in the Intergovernmental Conferences of Maastricht, Amsterdam and Nice, governments have tried to encourage other democratic ways and means (Craig and de Bu`rca 1999; Magnette 2000). In the same vein, the non-parliamentary control mechanisms set up in the 1980s were seen as makeshift measures by some researchers and actors in the European political system (Majone 1996; He´ritier 1999). But these control mechanisms progressively gained new legitimacy as they were regarded as being better adapted to the EU institutional structure and proceedings than classical parliamentary control tools. However, the contribution of these institutional mechanisms to the EU democratic process remains debatable. Their legitimacy is still weak because there is no real public arena at EU level. Besides – and mainly because of the absence of

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any public space – these mechanisms may easily be diverted from their objectives and even ‘captured’ by the very actors they are supposed to control.


THE CONSEQUENCES OF MULTIPLE CONTROL MECHANISMS It is difficult to infer a specific European political ‘model’ from these factors. But three underlying trends may be found that give the EU its peculiar character. First, coexisting and multiple sources of inspiration should be noted. Control mechanisms cannot be reduced to a single logic as the EU is subject to diverging pressures and therefore harbours different modes of control within its institutions. On the one hand, the ‘parliamentarization’ of the EU, through the emergence of the EP and the tentative commitments of national parliaments, has developed since the Single European Act with the Treaties of Maastricht, Amsterdam and Nice. Non-parliamentary control mechanisms have significantly increased at the same time, to such an extent that it can no longer be asserted that the multiplication of these mechanisms necessarily implies more power for the EP. Such a tense situation – fuelled by resistance from some member states and many Europeans vis-a`-vis the EP – could eventually lead to the bypassing of the Assembly and the legibility and transparency of the European political system being reduced. Second, the coexistence of various logics blurs the frontiers between originally different modi operandi. European parliaments seek the same type of expertise as in the European Commission or the ECB, while they claim that they alone have the political authority to control the activities of the Commissioners and the ECB. The Commission itself may be tempted to abandon its ‘non-political’ style under certain circumstances. Bodies such as the Court of Auditors, the Anti-Fraud Office (OLAF), the Ombudsman or the Committees of Independent Experts have auditing, legal and political activities. Multiple political control cannot therefore be reduced to the mere coexistence of various logics and modes of operation – it leads rather to a confused situation in which the separation of powers is not as clearly established as in national constitutional traditions (Costa and Magnette 2001). Third, such changes not only affect the form but also the content and impact of political control. Relations between actors are no longer characterized by clearly defined mandates, nor are they subject to sanctions. The various bodies are independent of one another and exert some forms of mutual influence. The diffuse nature of control may be explained by the fact that actors who no longer have any capacity for self-restraint try to influence each other permanently – each body tends to anticipate the reactions of the other actors and a priori integrate the possible control which may be exercised on them. Such a system is reminiscent of the American checks and balances which ensure that no form of hegemony may endanger political decisions supposed to serve the general public interest. Is it therefore possible to conclude that the EU has developed a new model



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of democracy adapted to its fundamental structures? The various studies published in this special issue are too partial and deal with too recent events to lead to any general conclusions, but they all reveal the limits of these new trends. The analysis of judicial and extra-judicial authorities, of financial control bodies, or of the ad hoc committees of experts, highlights the incompleteness of the new modes of control. Many activities in the EU political system remain formally shielded from any parliamentary or judicial control. Moreover, the study of the way these procedures have been implemented shows how limited their impact is, owing to their cost or formalism in some cases, or the resistance of institutions that reluctantly accept external control, or even the fact that these mechanisms are not well known to the public. Each contribution also confirms that restricted segments of civil society have the necessary intellectual and financial resources to use these control tools (Kohler Koch in Wallace and Young 1997). Contrary to classical mechanisms of political responsibility (elections, debates, sanctions), such diffuse modes of control do not generate any cognitive mobilization among European citizens. Comparative studies may finally lead to the question as to whether the dramatic multiplication of control may generate deadlocks in the decisionmaking process and blur the public image of the European institutions (Harlow in Craig and de Bu´ rca 1999). A good illustration may be found in the Spring 1999 institutional crisis which led to the resignation of the Santer Commission. The control mechanisms, which were originally meant to give European citizens the feeling that institutions were democratic because they were under their vigilant control, have not clarified in the least the respective political responsibilities of the various political actors in the EU. It would be hasty to state that the control norms, procedures, practice and institutions that contribute to an emerging form of diffuse democracy are the foundations of a new democratic model at odds with the specific political rules and organizations of nation-states. Indeed, some researchers and EU specialists have condemned this form of statomorphism which they see as an obstacle to the understanding of a sui generis democratic experiment. But we are not convinced that what we call diffuse democracy should be the basis of a new democratic model. It is doubtful whether the democratic debate inside the EU will shortly be liberated from the standards of democratic legitimacy inherited from nation-states. We rather hold the opinion that the EU citizens’ references and expectations in the matter of democracy in the European political system are still founded on their national democratic traditions. Such traditions, which have developed progressively within democratic nation-states since the late eighteenth century, have made up a relatively coherent set of basic requirements and institutional practice – the implication of the citizens or of their elected representatives in public policy-making, an open public arena where societal alternatives and not just technical adjustments are debated, a


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clear distribution of power between the various levels of government and hence a constitutionalization of the practice of power. In other words, what we call diffuse democracy in the EU cannot – at this stage – be regarded as a new and comprehensive plan that would steadily lead to the development of a supranational democracy. True democracy in the European institutions will obviously be a long-term process. On the one hand, it is impossible to criticize the absence of democracy at the EU level without acknowledging that the multiplication of control mechanisms paves the way for a potential solution to that problem. On the other hand, there are still some contradictions within the member states – national governments openly display their pro-European convictions but are particularly timorous when it comes to transferring on to the European level the democratic practice that has enriched the common political heritage of European democracy since the Age of Enlightenment. Besides, citizens and political leaders regularly complain about the opacity, complexity and technocracy of the European institutional system in which they still show limited interest. The European experiment has demonstrated the limits of a purely procedural concept of a democracy that ignores the sociological context. Democracy is not a mere problem of institutions, norms and mechanisms. It is founded on values and beliefs – shared by citizens – which democratic practice may help to foster. The EU’s institutional system – though regulated by rules and procedures in order to guarantee its democratic constitution – is still of a ‘decisionist’ nature, to take up Max Weber’s dichotomy between the administrative and political spheres. Its legitimacy lies in its in-built capacity to settle conflicts and crises, and in its performance in matters of economic and social regulation, but not in the citizens’ support of its ideals. In a sense, such a model was acceptable as long as the European Community confined itself to the elaboration of minimalist common rules between member states which were still in full control of the system. After the Second World War, everybody understood the geopolitical objectives of Europe, which was enough to legitimize further integration, i.e. further economic integration from a neo-functionalist approach, and performance – what has been called legitimization through outputs by Fritz Scharpf, or legitimization through efficiency by Giandomenico Majone (Scharpf 1999; Majone 1996). But it is doubtful whether Europe will be able to keep this mode of legitimization through performance indefinitely. In many respects, the EU, as it is today, is not a mere construct in the service of performance – although its architects always refer to notions of efficiency when they claim increased powers. Such a model based on consensus and compromises is limited. As the build-up of power in the EU will directly affect the lives of citizens, it will inevitably lead to problems in society and in arbitration between diverging interests. The democratic issue thus becomes all the more topical and pressing. As a political laboratory, the EU shows that democracy remains an ideal which requires strong social links and citizens’ support. Though the control mechanisms set up by the EU have guaranteed the protection of civil rights


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and contributed to counterbalancing various private interests and powers, they have failed – to a point – to arouse any commitment from the European citizens to the making of a common European objective.


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Between parliamentary control and the rule of law: the political role of the Ombudsman in the European Union¹ Paul Magnette

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Institut d'études européennes , University of Brussels , Belgium Published online: 04 Feb 2011.

To cite this article: Paul Magnette (2003) Between parliamentary control and the rule of law: the political role of the Ombudsman in the European Union¹, Journal of European Public Policy, 10:5, 677-694, DOI: 10.1080/1350176032000124032 To link to this article: http://dx.doi.org/10.1080/1350176032000124032



Between parliamentary control and the rule of law: the political role of the Ombudsman in the European Union1 Downloaded by [Sciences Po Bordeaux ] at 05:09 13 October 2014

Paul Magnette

ABSTRACT The European Ombudsman is a new kind of ‘agent’, whose status and role remain unclear. On the one hand, it is formally a parliamentary body, designed to strengthen the control of EU institutions and administrations by MEPs; on the other hand, the profile and role of this organ is close to that of a court. This article argues that the hybrid nature of this organ is the reason for its success. The powers of the Ombudsman, limited as they are, give him the opportunity to combine the instruments of parliamentary scrutiny and judicial control in an original way. As such it is well equipped to scrutinize those agents which cannot be submitted to classic parliamentary controls without losing their independence, and thereby helps to reconcile executive delegation with parliamentary democracy. KEY WORDS Accountability; European governance; Ombudsman; parliamentary scrutiny; rule of law; transparency.

It has become commonplace to say that parliaments alone can no longer hold the state apparatus accountable, in a context of increasingly complex and technical ‘governance’. The European Union (EU) is confronted with that problem, more than any other national political system (Joerges and Dehousse 2002; Harlow 2002). Its competence, which is often technical and based on expertise, implies that new forms of political control should be invented (Majone 2001). Its intricate institutional system, in which the European Parliament (EP) does not play the same central role as national parliaments, necessitates complementary modes of political accountability (Lord 1998). The nature of this problem explains the creation of the European Ombudsman in the Treaty of Maastricht. This organ illustrates a new trend in the legitimization of the Union, which consists in subjecting ‘all of the Union’s institutions to standard sets of rules and procedures, or scrutiny by agents who are dedicated to a single task but responsible for applying it across the entire EU institutional system’ (Peterson and Shackleton 2002: 366). The nature of this new kind of ‘agent’, however, remains unclear. On the Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124032


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one hand, the Ombudsman is formally a parliamentary body, designed to strengthen the control of EU institutions and administrations by Members of the European Parliament (MEPs); it illustrates a classic logic of parliamentary accountability. On the other hand, the profile and role of this organ is close to that of a Court. It is addressed by individual complainants and it defines and applies ‘general principles’ to solve the cases submitted to it; as such, it is one of the organs designed to guarantee the respect of the rule of law. The hybrid nature of this organ is, I will argue, the key to its success. The powers of the Ombudsman, limited as they are, give him the opportunity to combine the instruments of parliamentary scrutiny and judicial control in an original way. Moreover, given the hybridity of its status and role, the Ombudsman is well equipped to scrutinize those agents that cannot be submitted to classic parliamentary controls without losing their independence, and thereby help to reconcile delegation with parliamentary democracy (Lindseth 2002). WHAT IS AN OMBUDSMAN? As is well known, the Ombudsman is a Swedish invention. What is usually less well known is the fact that this old institution has adapted to the great transformations of the political system before spreading all over the world. This long genesis explains its hybrid nature and its peculiar style of action. Its history can be divided into three main periods. First, the Ombudsman appeared originally in an era of authoritarian monarchy (1809) as an internal authority within the executive power. The kings of Sweden had established it to ensure that their administration would rigorously respect and implement their laws. Ombudsmen were public officers set up to strengthen the authority of the executive over the other powers. Second, later on, as the regime became more parliamentary, the office was maintained but adopted a very different role. In the second half of the nineteenth century, it progressively left the sphere of influence of the executive to come under the control of the Riksdag, and thus became one of the instruments of parliamentary control over the executive. It is today still an essential element in the Swedish theory of ‘constitutional control’. Third, during the twentieth century, it acquired some relative autonomy from the Members of Parliament and has eventually turned into a means for citizens to control public authorities. Posing as the ‘defender of civil rights’ against the arbitrariness of bureaucracy, it is no longer confined to the horizontal relationship between authorities but is also part of the vertical control of the state by citizens. As such, it combines the two basic dimensions of accountability in democratic systems (Przeworski et al. 1999). The institution of the Ombudsman spread in the second half of the twentieth century well beyond the boundaries of its motherland.2 The Swedish model was copied by the Nordic states (Finland in 1919, Denmark in 1955 and Norway in 1963) and by the Commonwealth countries in the early 1960s. In most cases, the objective was to offer citizens the possibilities of out-ofcourt actions against the administration’s decisions rather than reinforce the


P. Magnette: Political role of the Ombudsman in the EU

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separation of powers. In other words, the Ombudsman was part of the new concern for the rule of law, as much as of a renewal of parliamentary scrutiny. Its wider diffusion, outside the sphere of the old parliamentary nations, started in the 1970s and increased the vertical dimension of mediation. The constant extension of the state’s fields of action, in parallel with the development of economic regulation and social services, and the ever more liberal evolution of political praxis, account for the success of the institution in the 1970s and 1980s. A good illustration of it can be found in the cases of Spain and Portugal which became liberal democracies during this period. In both countries the creation of an Ombudsman (proudly called Defensor del Pueblo in Spain and Provedor de Justiça in Portugal) was made possible by the constituent assemblies which had restored democracy and turned the new institution into one of the key elements of the rule of law. Ombudsmen were granted extended powers of inquiry and litigation, and were presented as the ‘guardians’ of the respect for fundamental rights by the state, like the Constitutional Courts. Their example was followed by the Polish and Hungarian constituent assemblies after the fall of the Communist regimes. Over the past few years, the fashionable novelty of the Ombudsman has somewhat overshadowed his political role. After the example of the regions, provinces, municipalities and federated entities, various public (transport, communication and energy services) and private groups (businesses, newspapers) have followed the same trend. But the prerogatives of these new Ombudsmen do not reflect the archetypal function: many of them belong to the body they are supposed to control and are only granted some relative independence. Their power of inquiry and recommendation is variable. This generates confusion about the meaning of the Ombudsman. In the political sense of the term, an Ombudsman is a public officer whose action is centred on public administration and who enjoys strong guarantees of independence. His power is characterized by the non-binding dimension of his decisions – contrary to national courts. The Ombudsman comes most frequently from the Parliament which appoints and controls him, while theoretically preserving his autonomy.3 Citizens – and Members of Parliament in France and the UK4 – make complaints directly to him with no formal conditions and at no cost. The independence of, and easy accessibility to, the Ombudsman largely explain the success of this form of ‘soft justice’, as opposed to the length, cost and formalism of traditional legal action. This is undoubtedly proof of a phenomenon of constitutional convergence in Europe. But in spite of the success of such a form of control, there are still huge differences in the way the institution works in the EU member states. Three countries (Germany, Austria and Luxembourg)5 have no Ombudsman per se. The Defensore civico only operates at regional level in Italy.6 On the contrary, the Nordic countries and Spain grant the Ombudsman a very large field of competence (over military, judicial and even religious administrations in some Protestant countries) and considerable means of inquiry – including the right to bring civil, criminal, administrative and even constitutional

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actions.7 In other European countries, the competence of the Ombudsman is more limited – so that it excludes Court decisions and disputes between the administration and its staff. He is not empowered to bring legal action either. In short, the difficulties and hesitations encountered in the setting-up of the office of European Ombudsman may largely be explained by these differences in national civic cultures.


WHY A EUROPEAN OMBUDSMAN? The idea of creating a European Ombudsman was first evoked in an EP resolution in 1979, and the issue was raised again by the Adonnino Committee (1985) which was appointed to explore ways of creating a ‘Citizens’ Europe’. But it was not until the intergovernmental negotiations in 1990–91 which led to the Treaty of Maastricht that the institution was established (Magnette 1997, 1999). The Spanish government had drafted an ambitious proposal which was soon supported by Denmark. Basing their argumentation on their national tradition,8 both countries contended that it was necessary to appoint an Ombudsman in every EU country with the task of protecting respect for individual rights and receiving complaints from citizens. This seemed all the more important for Spain and Denmark as the possibilities of litigation were notably restricted for European citizens given the narrowness of the ad hoc mechanism enabling them to bring a direct action to the European Court of Justice (ECJ).9 The other member states were more reluctant, as was the EP majority. The EP had constantly presented itself as the guardian of citizens’ rights before the Council and the Commission, and a majority of its members saw the Ombudsman as a potential source of competition. The Petitions Committee already offered citizens the possibility of complaining, they argued, and therefore made the establishment of this new mechanism redundant. In the same vein, this line of argumentation was used in domestic debates in Germany, Austria, Luxembourg and Italy. The Petitions Committee chairwoman even declared that it was ‘a publicity manoeuvre that deprives citizens of some of their rights’.10 In spite of this reluctance, the compromise proposed by the Luxembourg presidency was finally adopted. The Treaty of Maastricht reflects such hesitations. On the one hand, it gave a very precise definition of the role of the Ombudsman, with no possibility for him to play any significant political role. But, on the other hand, the Ombudsman was under the direct authority of the Parliament which could be inclined to give him a more political profile. He was to be appointed by the EP after each election – by a majority vote.11 His resignation could be requested and his power and means of action defined by the Parliament. The statute of the Ombudsman, adopted by the EP in March 1994, reflected the will of the MEPs to make the institution one of their instruments of control: the Ombudsman can act either on his own initiative or on a complaint forwarded by an MEP; his means of action and procedures are precisely defined and a system of ‘communicating vessels’ ensures that he will not deal alone with



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political questions that concern the Petitions Committee. It was very symbolically instituted that his place of work was to be in Strasbourg, the seat of the EP. From the start, the European Ombudsman appeared as a vector of parliamentary control over the executive – in the old Nordic constitutional tradition – as much as the independent guardian of citizens’ rights. The appointment of the first Ombudsman caused a bitter party controversy within the EP. A first vote in the Petitions Committee resulted in a dead heat with the same number of votes for the left-wing and right-wing candidates. A second vote had to be organized, which left time for the two main political groups, the EPP and the PES, to agree on the name of a single candidate. Jacob So¨ derman, who was elected, had a political profile after a career as Justice and Social Affairs Minister before becoming Finland’s national Ombudsman. His orientations in the conduct of his mandate confirm that he has not confined himself to the strict definition given by the Treaty, and he has played an important political role with the support of the Parliament which elected him. A MAGISTRATE OF INFLUENCE In the first months, the Ombudsman was forced to adopt a low profile because of the novelty of the institution and the controversy which marked its creation. Complying strictly with the letter of the Treaties and statutes which defined his function, he pledged allegiance to the Parliament which had elected him, and was controlling him. In his first report, submitted after only a few months of activities, he clearly declared that he would not tackle political questions but would carefully examine the admissibility of complaints and study them with caution. But he also specified that he did not intend to confine his mission to mere instances of maladministration. ‘Given the background of the establishment of the office’, he gave himself a ‘double mission’ – ‘both the effective implementation of the rights of citizens at all levels of governance of the Union, and transparency in the work of Community institutions and bodies’ (European Ombudsman 1995: 5). Even if the allusion went unnoticed, it heralded his intention to assume the double role played by the Ombudsman in the Nordic tradition – he was to help individuals in their dealings with the administration, and he also considered the possibility of promoting, on his own initiative, the principles of transparency and accountability which are inherent in the concept of ‘good administrative practices’. Since then, he has repeatedly declared that, by proposing solutions concerning instances of maladministration, his objective was not only to redress precise problems but also to contribute to the ‘consolidation of an open, democratic and accountable administration’ (European Ombudsman 1995: 24). The dual nature of his jurisdiction, constantly alternating between individual cases and general principles, much resembles the ECJ’s. But the Ombudsman’s mission is very different from a judicial one – he has extended powers of investigation and can conduct inquiries on his own initiative but cannot impose any legal obligation. He can only submit draft recommendations,


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sometimes accompanied with ‘remarks’ or ‘reform proposals’, to the institutions suspected of maladministration but is not empowered to impose sanctions.12 To carry out his mission successfully, he must establish relations of mutual confidence and esteem with the institutions he is in contact with. The administration concerned is free to decide if it will follow his recommendations. The only risk is that its ‘wrong-doing’ will be made public by the Ombudsman and damage its public image. His coercive means are thus more uncertain than those of a Court which can condemn and impose sanctions accompanied with financial penalties and damages; but his capacity to choose his priorities and make inquiries is larger than that of the Court. The apparent weakness of his office can thus be turned into advantages in the institutional arena. The Ombudsman has tried to maximize the quasi-judicial aspects of his role by adopting strategies with the Community administration which are similar to the conduct of the ECJ since the 1960s. He has often used the pretext of specific cases to express general principles which, according to him, should prevail beyond the specific circumstances of the cases at hand. In a word, through his ‘decisions’, he has gradually established a ‘jurisprudence’ based on a teleological philosophy of ‘good administrative practices’ and even ‘good governance’. The fact is that he has no power to make his decisions binding, but such apparent weakness may also be a source of diffuse power. Unlike judges who are compelled to adopt a moderate tone in order to preserve the legal authority of their decisions, the Ombudsman may, and often does, exercise political pressure. Moreover, he has the fundamental privilege of being able to conduct inquiries on his own initiative, contrary to the ECJ judges. Whereas the Court depends on the cases brought to it to develop its jurisprudence – which explains why it is often seen as providing incomplete protection of fundamental rights13 – the Ombudsman is free to determine his own priorities. He is therefore in a position to adopt strategies which resemble those of a parliamentary inquiry committee. Until now he has used this discretionary power cautiously. He has always justified his decision to conduct an inquiry by referring to the increasing number of complaints on some very precise points. In so doing, he poses as the ‘defender’ of citizens rather than the autonomous custodian of some general principles. He has also imposed some constraints on his activities by limiting the number of inquiries on essential questions to two or three per year. The Ombudsman knows that his position would amount to almost nothing if he was not supported by hundreds of citizens who submit their cases to him every year. Since he came to office, he has always adopted an open strategy of communication, giving dozens of interviews and public conferences. He knows that his power depends on a good public image and that the institutions controlled by his services are all the more inclined to follow his recommendations if they think they are influenced by public opinion. The Ombudsman openly confesses that his main objective is ‘to inform the people who might have a real reason to complain about maladministration in the activities of a



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Community institution or body of their right to complain to the European Ombudsman and how to do so’. Though his communication strategy is aimed at the general public, it is in fact centred on ‘targeting accurate information to groups of potential complainants’ (European Ombudsman 1999: 281). From the study of the 1,500 or more complaints received each year,14 we can divide complainants into two categories. It must first be said that threequarters of these complaints are deemed inadmissible as they mainly concern disputes with national administrations – in which case the Ombudsman is forced to declare his incompetence.15 Ninety per cent of the cases come from individuals and the remaining 10 per cent are divided among businesses (from 20 to 60 per cent, depending on the year), citizens’ associations (from 50 to 90 per cent) and MEPs (from 10 to 30 per cent). These sources channel the Ombudsman’s type of work. He has first to deal with individual complaints concerning the practices of Community administrations, within the framework of precise administrative procedures. On the other hand, a small number of complaints are lodged by organized groups – firms, associations, lobbies, groups of journalists, often supported by MEPs – which take the pretext of the case in an effort to modify the working methods of the Union.16 The Ombudsman’s attitude does not vary much in the function of the cases submitted. He makes no difference between minor cases of maladministration which require only an ad hoc solution and real ‘affairs’ with political repercussions. His apparently formal approach follows that of the Court: even if the complainants are not motivated by political reasons, the Ombudsman often tries to highlight the ‘general interest’ dimension of the cases he receives, however insignificant they may appear a priori. This is what happens with the numerous complaints about the relations between the Commission and the staff who, directly or indirectly, work for it.17 As it is the main Community ‘administration’, the Commission is, more often than the other institutions, accused of unfair practices by its staff, individuals or companies that work for it or benefit from its financial support. The vast majority of cases have to do with the professional examination (the ‘concours’), work contracts, orders or subsidies, various questions relating to the payment of private business services, etc. In such cases, the task of the Ombudsman is to request information from the administration concerned, conduct a further inquiry (if the possible origin of the case is the practices of this administration), and find a solution when the two parties cannot reach a satisfactory agreement. Frequently, the intervention of the Ombudsman is sufficient to convince the administration concerned to take adequate steps to resolve the matter, in cases of late payment or requests for information, for example. The administration may sometimes refuse an agreement and may thus receive a critical remark or ‘maladministration report’ with a ‘recommendation’ to find a solution.18 Relationships with the other institutions are generally based on mutual confidence and co-operation, but the Ombudsman may adopt a stricter and even openly political tone. After the Prodi Commission

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came to office, he issued a severe warning to the new team who were suspected of not taking his mission seriously enough. If this unfruitful attitude becomes a general rule in the performance of the newly installed Commission, it would rapidly destroy the achievements of a fruitful and constructive co-operation in his dealings with complaints and make the Ombudsman’s task of enhancing the relations between the European citizens and the Community institutions and bodies impossible. (European Ombudsman 1999: 213)19


FROM PARTICULAR CASES TO GENERAL PRINCIPLES: THE TELEOLOGICAL APPROACH OF THE OMBUDSMAN Such clashes are rare. The Ombudsman usually tries to convince institutions in less tough terms. But the moderate tone he usually forces himself to adopt does not prevent him from taking initiatives with considerable political implications. In addition to the resolution of dozens of cases of maladministration – usually in the form of friendly settlements – the Ombudsman tries to act in a preventive way. He may consider that recurrent complaints bear witness to the inadequacy of some administrative practices which must therefore be reformed. The Ombudsman’s position evolves then from that of an ex-post redresser of disputes between administrations and individuals to a more ambitious strategy of reform. Through the careful selection of cases which he sees as symbolically important, he sets himself up as a power of initiative and pressure in the continuous reform of EU governance. Some examples may illustrate this strategy. The fight against discrimination is one of the Ombudsman’s favourite topics. After noting that many cases concerned the age limit problem in the recruitment examination – limits denounced as discriminatory by some individuals – the Ombudsman started an inquiry on his own initiative in 1998. He asked each institution to set out and justify their recruitment policy. After studying and comparing national laws on the subject and international texts on the protection of fundamental rights, he pointed out that some age limits did not seem to be ‘objectively justified’. He based his argument on the provisions of the treaties and on secondary legislation banning discrimination,20 and used ECJ jurisprudence as an argument in asking the Commission to take the initiative of an institutional agreement for a complete ban on all age limits. We should emphasize here the Ombudsman’s method rather than the content of such an important decision – though it was important because it went against established, widespread practice. Indeed, his services could just have examined each case and proposed tentative solutions to the administrations concerned. On the contrary, the Ombudsman decided to give a far-reaching dimension to the problem. His method – studying national, international and Community law provisions – and his choice of privileging the most ‘equitable’ rather than the most common solution resemble the ECJ’s inductive reasoning used to establish the ‘general principles of Community law’.21



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In the same vein, the Ombudsman conducted another inquiry in the same year. Taking up an old tradition of the Court, he often stated general rules relating to the ‘principles of good administrative practices’, though they were not necessarily applicable to the case in point. Repeating an almost ritual formula, ‘The principles of good administrative practices impose . . .’, he progressively built up an implicit code of good behaviour from the study of concrete cases. He drew up a list of unwritten rules drawn from public law and administrative codes of conduct – acknowledging receipt of all inquiries, replying to requests and taking action promptly, recording all documents in registers and archives, taking into consideration all pertinent elements before making a decision, reasoning and explaining decisions – which should always govern the action of administrations. He not only stated the principles, one after the other, but took the opportunity of an inquiry to systematize his own ‘jurisprudence’ in the form of a proposal for a written code of good administrative behaviour. He established basic rules (legality, equal treatment, proportionality, legal security) largely inspired by ECJ jurisprudence (Azoulay 2002; Kadelbach 2002) and added formal rules, inspired by national public law and his own experience (right of parties to be heard, time limits, notifications and motivations), and even some rules of courtesy which should characterize, according to him, all relations between the administration and the citizens (polite answers, apologies about errors). In order to justify this initiative, the Ombudsman first evoked his mission of ‘promoting good administrative practices’ and the official declaration of ‘the Union’s commitment to democratic, transparent and accountable forms of administration’ (European Ombudsman 1999: 222) – this expression occurs again and again in the Ombudsman’s arguments. He then explained that his inquiry proposed to determine whether such codes existed in Community law. At that point it was strictly speaking an inquiry. In a second stage he analysed the homogeneity of the few existing rules and used the pretext of such incomplete and heterogeneous norms to put forward his own proposal for a code with which administrations were strongly invited to comply. This code of good administrative behaviour has become the Ombudsman’s favourite theme. He has presented his philosophy in public lectures before Community law specialists, academics and judges, and in journals read by the same public.22 In 2000, he pleaded his case in front of the members of the Convention in charge of drafting the Charter of Fundamental Rights; as many Convention members, mainly those from the Nordic countries, shared his opinion (Braibant 2001), the code was incorporated in the Charter adopted at the Nice Summit in December 2000. In less than five years, the Ombudsman managed to codify the doctrine of good administrative behaviour and have it incorporated in a Charter which is the expression of the Union’s fundamental values and might be incorporated into the EU’s new treaty after the next Intergovernmental Conference.

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GUARDING THE GUARDIANS: PROMOTING TRANSPARENCY AND PARTICIPATION IN ‘EUROPEAN GOVERNANCE’ In circles close to the European microcosm, some actors rapidly understood how they could benefit from the Ombudsman’s interventions to further their cases. Not all complaints lodged by companies, associations, journalists and MEPs aim to influence the EU mechanisms, but it is the case for a few of them. The economic actors who denounce cases of maladministration usually aim at the Commission in its function as ‘the economic executive power’. As the guardian of the Treaties, the Commission has always relied on the actions brought by individuals and companies to ensure that national administrations comply with Community law, notably in the area of competition and state aids. But there was no legal means in the Community system for individuals to ‘guard the guardians’. In infringement proceedings, the Commission alone decides about the appropriateness of an action and can just as well decide not to follow up an action brought by individuals. Such discretionary power has never been challenged by the ECJ in spite of many actions for annulment brought by firms against the Commission’s decision not to start, or to defer, legal action, and despite repeated reminders by legal scholars to check the Commission’s room for manoeuvre. Since the Ombudsman came to office, some companies, judiciously advised by specialized law firms, have seen him as a means of convincing the Commission to abandon its tradition as a discretionary authority and be more flexible as regards observations brought by third parties. Every year some complaints involve the Commission’s decisions to drop legal actions. Many citizens’ associations and lobbies, notably those among the most active environmental groups, have adopted the same attitude. France’s nuclear tests in 1995, for example, brought about some forty complaints from British environmental groups. As they could not bring direct action against the French authorities, they accused the Commission of not having enforced a provision in the European Atomic Energy Community (EAEC) Treaty, which enables the Commission to force the member state concerned to take complementary health measures. The Ombudsman’s inquiry could not consider the appropriateness of France’s nuclear tests or the Commission’s decision not to enforce Article 34 of the EAEC Treaty. It concentrated rather on the way the Commission made its decision. Each year many similar cases deal with Council Directive 85/337/EEC. The directive requires environmental impact assessments in all public or private projects above a certain size. The complainants who invoke this directive accuse the Commission of not having controlled the application of the provisions by national authorities. In the same vein, they also refer to another directive about the conservation of wild birds. In all cases, the associations initiating these actions have first tried to act at national level, then appealed to the Commission, before eventually turning to the Ombudsman. The Ombudsman’s role is, like that of the Court in the field of ‘administrative



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law’, ambiguous. Theoretically, he examines the way the Commission makes its decision not to bring infringement proceedings against a member state. Though the control is only about the procedure, it may radically alter the content of the decision. In fact, the difference between content and form is very difficult to make out. When a company contests the Commission’s authorization of state aid for a competitor, or when an association regrets that the Commission has not brought an infringement proceeding against some national authorities accused of violating Community law, the main objective is to change the content of the decision. The Ombudsman tries to keep to the formal aspect of the cases – his remarks mainly concern time limits, absence of response, lack of motivation in decisions. But when he criticizes some aspect of the procedure, he may touch upon the content of the decision. There have been instances when the Ombudsman has accused the Commission of not having ‘correctly assessed’ the situation before making a decision. He has based his argumentation on the fact that the Commission examined some arguments and not others.23 In another case, the Ombudsman reproached the Commission with having failed to ‘really balance the interests of the opposing parties’.24 Under the pretext of a formal control, the Ombudsman may thus interfere with the decision. If he can decide what information should be used and how, what room for manoeuvre is there for institutions to make their decisions? It is true that the Ombudsman’s caution has prevented such cases from happening – up till now – but the formal character of the control he exercises does not ensure the neutrality of his interventions. From isolated cases which can seem to be part of co-ordinated strategies by complainants, the Ombudsman has, once again, tried to develop a more general policy. In 1997 he undertook an inquiry on his own initiative about ‘the possibilities for improving the quality of the Commission’s administrative procedures for dealing with complaints concerning Member States’ infringement of Community law in the period before judicial proceedings may begin’ (European Ombudsman 1997: 284). He noticed the frustration of individuals who are informed by the Commission of its decision not to start, or to drop, a legal action, and suggested that the procedure should be modified to allow complainants to formulate their observations. In other terms, it means an increase in ‘contradictory’ hearings of the two parties in an administrative procedure which resembles a judicial one. In a normative tone, the Ombudsman pointed out the two advantages of such a procedure. Firstly, it would most likely contribute to a more effective administration, by giving complainants the opportunity to criticise the Commission’s views and therefore give the Commission the opportunity to respond to this criticism. Secondly, it would enhance the citizens’ trust in the Commission by allowing them to participate more fully in the article 169 procedure and thereby making these activities more transparent. (European Ombudsman 1997: 285)


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In the name of efficiency, legitimacy and transparency, which he believes he is the guardian of, the Ombudsman empowers himself with the right to suggest procedural reforms which aim to increase citizens’ participation in administrative procedures. The Commission is free not to take any notice but is under pressure as the Ombudsman uses public conferences, his relations with his national counterparts, and his privileged contacts with MEPs to argue that his reforms are fully justified. Though he has no power to impose his suggestions, he sets up a strategy of influence in order to challenge the Commission’s longstanding tradition of secrecy. Because of the numerous cases of ‘lack or refusal of information’ from administrations each year, since 1996 the Ombudsman has also embarked on a crusade for transparency. Some complaints had deliberately been lodged before the Court by journalists and citizens’ associations about the development of transparency (Grønbech-Jensen 1998). Troubled by the same kind of complaints, in his second year in office, he started an inquiry about citizens’ access to EU institution documents. Since the late 1980s, this theme had been put on the agenda by the Danish and Dutch governments and by Sweden and Finland after they joined the Union. ‘Transparency’ has become one of the leitmotivs in the debate about the reform of the Union, and the Treaty of Amsterdam was a decisive step as it states the subjective right of citizens to access to EU institution documents. The Union’s institutions have been reluctant to respect their obligations, and this has become the Ombudsman’s ideal battleground. He first requested that Community institutions and bodies inform him about their rules and regulations on the subject, and warned them that ‘the fact of not adopting or of not facilitating rules about public access to documents’ was ‘an instance of maladministration’. He recommended the adoption of such a set of rules within three months. In order to give more weight to his action, he wrote a special report on the question and submitted it to the Parliament, which thanked him warmly for his initiative. In the following year, he received other complaints about lack of transparency, especially in Council proceedings. The complainants used the Ombudsman while they also brought these cases to the Court of First Instance (CFI). The Ombudsman notified the Council in 1997 that he found its motivations to refuse access to documents unsatisfactory, and asked it to keep a record of the measures taken concerning Justice and Home Affairs policy. These recommendations, converging with the CFI’s jurisprudence, were then accepted by the Council. In the same vein, he recommended that the Commission keep a public record of the documents produced in the framework of comitology, in order to facilitate access to information. After new complaints, he conducted a further inquiry on his own initiative in 1998 about four Community bodies which had not made public their rules of access to information.25 He then embarked on a detailed analysis of the replies given by the institutions concerned and notified them of his position. While admitting that there could be legitimate exceptions to the principle of transparency, he referred to the CFI jurisprudence and



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insisted on the fact that such derogations should be strictly limited. For example, he contested the interpretation of the European Central Bank (ECB) which contended that the Governing Council minutes were not ‘administrative documents’ which should be accessible to the public. The Ombudsman did not go as far as demanding that they should be systematically made public – which would have been an openly political intervention on his part – but that some rules should be established to facilitate public access to the documents which the ECB wanted to keep secret. Like the ECJ which has established the legal principles in the Community, the Ombudsman has both stated and promoted the general principles which, in his view, are an integral part of the notion of ‘good administrative practices’. In the exercise of the ambitious mission of reforming European governance that he sees as his task, the Ombudsman defends a demanding conception of ‘democracy’ which echoes Nordic constitutional traditions. All his actions, whether they be the treatment of complaints or his own inquiries, follow the same political logic. His aim is to consolidate the political accountability of administrations by encouraging citizens to be more vigilant through three structural principles: 1 transparency in the decision-making process – citizens can only control institutions if they can follow their actions and have access to their documents; 2 the development of written criteria of good administrative behaviour – citizens can only contest public action if they can invoke formal criteria set and applied by the authorities; 3 citizens’ participation in the decision-making process and the possibility of litigation, even on administrative questions – information about public action and the administration’s criteria would be meaningless if there were no ways to challenge them. All these actions are part of the same approach – attenuating the ‘authority of decisions made’ by extending the principles of public information, deliberation and control, which are the normative foundations of parliamentary democracy, to the administrative sphere. The Ombudsman has seized every opportunity to defend this conception of governance which he finds not only more democratic but also more efficient. Echoing the argument of ‘deliberative democracy’, he opposes the frequently used argument that some confidentiality should be preserved in the decision-making process and declares: What is really efficient for the Santer Commission to collapse in March, leaving the Union’s activities badly hampered for half a year in the absence of a lead from an active Commission? An important reason for the collapse was what had been done behind the curtain of confidentiality. Furthermore, experience shows that open administration, which is practised in Member States, seems to be an effective tool against fraud and corruption, while a

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closed and confidential handling of public affairs appears to provide opportunities for fraud and corruption. (European Ombudsman 1999: 13)


CONCLUSIONS Although most observers were sceptical about the role of the Ombudsman after it was set up by the Maastricht Treaty, the Ombudsman has since demonstrated its utility. Making an inventive use of his apparently loose and weak powers, he has given a stable and original profile to his office. The first appointed Ombudsman made use of his national experience, and good relations with the members of the Commission and the Parliament, to invest his mission with high ambitions. He knew his first task was to seek solutions to complaints from individuals and solve individual cases of maladministration. But he also interpreted his mission as making an exhaustive list of instances of ‘malfunctioning’ in European governance and proposing remedies. On the one hand, acting like a Court, he interpreted the cases submitted to him in a teleological way, in order to build a demanding doctrine of ‘good administration’.26 On the other hand, acting as a parliamentary organ, and with the strong support of the EP, he used his powers of inquiry and proposition to suggest wide-ranging reforms of European governance. In so doing, he promotes the principles of transparency, participation and explanation – underpinned by a philosophy of ‘deliberative’ administrative action – which are also supported by the Court (Shapiro 2002). With a view to strengthening his role, the Ombudsman has always given priority to the defence of his own prerogatives, and to the promotion of the institution of Ombudsman. In order to make his investigations more efficient, in 1997 he suggested that the Commission should allow its staff to express their views freely during his inquiries – whereas today they are only allowed to answer questions according to their supervisors’ instructions.27 Two years later he asked the EP to modify his statute and lift all remaining restrictions imposed on his functions as an investigator. And his good and sustained relations with his national or regional counterparts provide new opportunities for him to defend and promote the institution of the Ombudsman at all levels of the administration, even beyond the legal boundaries of the Community.28 The Ombudsman has not yet convinced all the actors of European governance to follow his philosophy of good administration. But by combining quasijudicial actions and reasoning with parliamentary inquiries and political propositions, he has at least demonstrated that the two classic paths of accountability can be reconciled. As European governance relies ever more on delegation and independent regulation, this new and hybrid form of scrutiny may become ever more important. Address for correspondence: Paul Magnette, Institut d’e´tudes europeénnes – ULB, 39, av. F.D. Roosevelt, B–1050 Brussels, Belgium. email: pmagnet@ ulb.ac.be


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NOTES 1 I thank Olivier Costa, Renaud Dehousse and Brigid Laffan for comments on an earlier version of this paper. 2 See Revue française d’administration publique (1992) for a general review of the statutes and practices of ombudsmen in Sweden, Finland, France, Spain, the UK, Italy, Poland and other non-European countries. See also Marias (1994) for general surveys of France, Spain, Portugal, Sweden, the UK, Ireland, Belgium and Denmark. A systematic but more general comparison may be found in European Parliament (1995). The Website of the European Ombudsman (http://europarl.eu. int/ombudsman/home/en) offers links with the sites of the national ombudsmen, where they exist. 3 He is appointed by the executive only in France and the UK. He is under the responsibility of the Parliament in both countries. 4 The De´le´gue´s de´partementaux, who were created in France in the late 1960s, partly make up for the impossibility for citizens to bring direct action. They can seek advice from these ‘departmental ombudsmen’ who will transfer their complaints, through the Members of Parliament, to the me´diateur de la Re´publique. 5 In Germany, Austria and Luxembourg, the national parliamentary Petitions Committees play the role of Ombudsman. In these three countries, MPs seem to fear that the creation of an ombudsman might jeopardize their control monopoly and weaken their key role in civil life. 6 It should be noted that, in Belgium and Greece, national ombudsmen were only created after the establishment of the European Ombudsman (respectively in 1995 and 1997) and that the close links that exist between the European Ombudsman and the parliamentary Petitions Committees seem to have played an important role in the propagation of this institution. 7 In Poland, in the very special context of the transition towards liberal democracy, the Ombudsman is even empowered to bring an appeal to revise a judgment to the highest national Court, which is one of the main reasons for the Ombudsman’s spectacular success. On the experience of the first Polish ombudsman, see Letwoska (1992). 8 On the importance of the ‘Danish model’, the only Nordic country at the Intergovernmental Conference in 1990–91, see Heede (2000). 9 These restrictions have long been criticized from a doctrinal point of view (Rasmussen 1980; Harlow 1992). 10 Viviane Reding (EPP, Luxembourg) who became a member of the European Commission (Agence Europe, 16 May 1991). 11 National ombudsmen are generally elected with a very large majority and for mandates which do not correspond to the parliamentary terms of office, thus avoiding possibilities of partisan pressures. Because of the absence of clear majorities in the EP, which obliges the two main parties to find compromises, such precaution is unnecessary. 12 The ECJ does not have strong powers of sanction either. Its decisions must be enforced by national authorities, and it is only on the request of the Commission, after long procedures, that it can impose fines on the member state which fails to observe its rulings. 13 Joseph Weiler considers that the judges’ dependence on the complaints lodged by individuals is the main obstacle to ‘judicial activism’. See Weiler (1999). 14 The number of complaints received each year is constantly increasing, from 298 in 1995 to 1,557 in 1999. They correspond roughly to the populations of each member state. Only countries hosting European institutions whose residents have more frequent dealings with the Union’s administrations, and, to a lesser extent, the Nordic countries which are more familiar with these procedures, show a

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15

16


17

18

19 20 21 22 23

24

25 26

27 28


slightly higher ratio of complaints in relation to their populations. See Magnette (1999). In such cases, according to the principle of subsidiarity, he tries to advise complainants to address the national or regional Ombudsman’s offices with which he has developed close and regular links in order to create a ‘network of Ombudsmen’ to cover all administrative levels. Olivier Costa’s contribution in this issue shows that the same categories are to be found among complainants to the ECJ. Statistics by the Commission and the Council about information requests from individuals reveal the prevalence of the same groups of actors. Complaints against the Commission account for 70 to 80 per cent of the total number of complaints received each year. There are also complaints lodged against the Council, the Parliament and other Community bodies by their staff. The number of these complaints is notably smaller but this is obviously owing to the fact that there are fewer people who work for these institutions. The Ombudsman concludes that there are no instances of maladministration in about half the cases. From 10 to 30 per cent of complaints are settled in a friendly or unilateral way by the institution, while 10 per cent of cases lead the Ombudsman to send a ‘critical remark’ to the institution concerned. In less than 5 per cent of cases, maladministration is found, which leads the Ombudsman to make a ‘recommendation’. The success of the first term of the Ombudsman (1994–99) may be partly explained by the appointment of Mrs Gradyn, the Swedish Commissioner who shares the same language and civil culture as Mr So¨ derman, to the post of ‘correspondent’ of the Ombudsman. This has greatly facilitated the adaptation of Commission services to the demands of the Ombudsman which often require an important investment in time and human resources from the Commission’s civil servants. In his ‘further remarks’, the Ombudsman noted that it was an instance of maladministration as the Commission had refrained from addressing the complainant’s comments and the precise question that he had asked the institution. New article 13, incorporated in the Treaty of Amsterdam in 1997, explicitly outlaws any discrimination on the grounds of age. See Simon (1991). See So¨ derman (1998). See the Ombudsman’s decision on the complaint (650/98(PO)GG) lodged against the Commission’s decision to close an anti-dumping proceeding. The Ombudsman found an instance of maladministration in the attitude of the Commission which had not taken enough note of the evidence and arguments of the complainant. See the Ombudsman’s decision on the complaint (1057/25.11.96/STATEWATCH/ UK/IJH) against the Council. It must be noted that the Court of First Instance had adopted the same reasoning in similar cases about individuals’ access to Council documents. See Bradley (1999). The Community Plant Variety Office, the Health and Safety in the Workplace Agency, Europol and the European Central Bank. His interpretation of the notion of ‘administration’ is, moreover, very broad – by examining complaints about the way the Commission controls the application of law, the Council’s practices in police co-operation or the internal workings of the EP party groups, he has blurred the traditional frontiers between politics and administration. According to his usual strategy, the Ombudsman conducted an own-initiative inquiry in 2001. He regrets that some countries have no Ombudsman and has even suggested that each member state should ‘have an obligation to ensure that its legal structure


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includes an effective and appropriate non-judicial body to which citizens may apply for this purpose’ (European Ombudsman 1998: 12), which is a clear case of interference in ‘national constitutional traditions’.


REFERENCES Azoulay, L. (2002) ‘The judge and the Community’s administrative governance’, in C. Joerges and R. Dehousse (eds), Good Governance in Europe’s Integrated Market, Oxford: Oxford University Press, pp. 109–37. Bradley, B.K. St C. (1999) ‘La transparence de l’Union europeénne: une e´vidence ou un trompe l’oeil?’, Cahiers de droit europeén 35(3–4): 283–362. Braibant, G. (2001) La charte das droits fondamertaux de l’Union europeénne, Paris, Le Seuil. European Ombudsman, Report for the Years 1995–2001. European Parliament (1995) European Ombudsman/National Ombudsmen, Luxembourg: Citizens’ Europe Series. Grønbech-Jensen, C. (1998) ‘The Scandinavian tradition of open government and the European Union: problems of compatibility?’, Journal of European Public Policy 5(1): 185–99. Harlow, C. (1992) ‘Towards a theory of access for the European Court of Justice’, Yearbook of European Law, pp. 213–48. Harlow, C. (2002) Accountability in the European Union, Oxford: Oxford University Press. Heede, K. (2000) European Ombudsman: Redress and Control at Union Level, The Hague/London/Boston: Kluwer. Joerges, C. and Dehousse, R. (eds) (2002) Good Governance in Europe’s Integrated Market, Oxford: Oxford University Press. Kadelbach, S. (2002) ‘European administrative law and the law of a Europeanized administration’, in C. Joerges and R. Dehousse (eds), Good Governance in Europe’s Integrated Market, Oxford: Oxford University Press, pp. 167–206. Letwoska, E (1992) ‘L’ombudsman polonais et la de´fense des droits civiques’, Revue française d’administration publique 64: 667–73. Lindseth, P. (2002) ‘Delegation is dead, long live delegation: managing the democratic disconnect in the European market-polity’, in C. Joerges and R. Dehousse (eds), Good Governance in Europe’s Integrated Market, Oxford: Oxford University Press, pp. 139–63. Lord, C. (1998) Democracy in the European Union, Sheffield: Sheffield Academic Press. Magnette, P. (ed.) (1997) De l’e´tranger au citoyen: construire la citoyennete´ europeénne, Paris/Bruxelles: De Boeck-Universite´s. Magnette, P. (1999) La citoyennete´ europeénne: Droits, politiques, institutions, Bruxelles: Editions de l’Universite´ de Bruxelles. Majone, G. (2001) ‘Non-majoritarian institutions and the limits of democratic governance: a political transaction-cost approach’, Journal of Institutional and Theoretical Economics 157(1): 57–78. Marias, E.A. (ed.) (1994) The European Ombudsman, Maastricht: European Institute of Public Administration. Peterson, J. and Shackleton, M. (eds) (2002) The Institutions of the European Union, Oxford: Oxford University Press. Przeworski, A., Stokes, S.C. and Manin, B. (eds) (1999) Democracy, Accountability and Representation, Cambridge/New York: Cambridge University Press. Rasmussen, H. (1980) ‘Why is Article 173 interpreted against private plaintiffs?’, European Law Review 5(2): 112–26. Revue française d’administration publique (1992), no. 64, Nume´ro spećial sur les me´diateurs.

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Shapiro, M. (2002) ‘The giving reasons requirement’, in M. Shapiro and A. Stone Sweet (eds), On Law, Politics and Judicialization, Oxford: Oxford University Press, pp. 228–57. Simon, D. (1991) ‘Y a-t-il des principes geńe´raux du droit communautaire?’, Droits 14: 73–86. So¨ derman, J. (1998) ‘Le citoyen, l’administration et le droit communautaire’, Revue du Marche´ Unique Europeén 2: 19–67. Weiler, J. (1999) The Constitution of Europe, Cambridge: Cambridge University Press.



The Committees of Independent Experts: expertise in the service of democracy? a

Christian Lequesne & Philippe Rivaud a

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b

EU Commission , Brussels, Belgium Published online: 04 Feb 2011.

To cite this article: Christian Lequesne & Philippe Rivaud (2003) The Committees of Independent Experts: expertise in the service of democracy?, Journal of European Public Policy, 10:5, 695-709, DOI: 10.1080/1350176032000124041 To link to this article: http://dx.doi.org/10.1080/1350176032000124041



The Committees of Independent Experts: expertise in the service of democracy?


Christian Lequesne and Philippe Rivaud

ABSTRACT Starting from a deliberately limited topic – the Committees of Independent Experts – this article looks at the tensions between the different models of democracy in the EU. It shows that the parliamentary model of democracy remains subject to serious limits in the EU. The creation of the Committees of Independent Experts is the direct outcome of the European Parliament’s inability to implement formal mechanisms of parliamentary control, such as censure or Temporary Committees of Inquiry. In calling for experts to control and assess the Commission, the European Parliament itself has shown the importance in the EU of non-parliamentary control procedures. Better adapted to the institutional structure of the EU than the classical parliamentary instruments, these procedures, based on ‘wise men’, remain questionable with respect to the principle of accountability. Their legitimacy is fragile because they can easily be led away from their aims, or even captured by the very actors they are meant to control, outside of any public deliberation. They cannot yet be considered sufficient elements of a new normative system which would suffice to ensure the development of a supranational democracy in the EU. KEY WORDS Accountability; Committee of Independent Experts; parliamentary control in the EU; supranational democracy.

The publication of the report by the Committee of Independent Experts, in charge of investigating ‘allegations regarding fraud, mismanagement and nepotism’ in the European Commission, finally led to the March 1999 resignation of the whole of the Santer Commission which had been in office since 1995. The President of the Commission thus acknowledged the moral judgement of the five ‘wise men’ who had declared, in the conclusion to their report, that ‘the responsibility of individual Commissioners or of the Commission as a body cannot be a vague idea, a concept which in practice proves unrealistic’, because ‘that concept is the ultimate manifestation of democracy’ (Committee of Independent Experts 1999a: 144; 1999b). The resignation of the Commission was an unprecedented event in the Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124041


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history of the European Union (EU). Until 1999, there had never been any motions of censure passed by the European Parliament (EP) against the activities of the Commission, nor had there ever been any condemnation by the European Court of Justice (ECJ) of one or several Commissioners for alleged serious misconduct. This ‘self-imposed’ censure was the climax of several months of tense relations between the EP and the Commission over accusations of fraud and mismanagement in several EU policy areas: tourism, nuclear safety, the Euro– Mediterranean partnership, the European Community Humanitarian Aid Office (ECHO) and the Leonardo programme for vocational training. Even the management of the Commission’s ‘Security Office’ came under direct scrutiny. There were also several alleged cases of favouritism which involved Commissioners Edith Cresson, Joao de Deus Pinheiro, Monika Wulf-Matthies, Manuel Marin, Erkki Likanen and Jacques Santer. They were suspected of having shown favouritism by appointing relatives or friends to positions in the Commission and/or in some subcontracting service companies.1 In a second report in September 1999, the Committee of Independent Experts, essentially composed of the same members as in the first instance, recommended measures to remedy some irregularities within the Commission. From a study of these facts, our objective is to analyse the interaction between the two Committees of Independent Experts, who submitted their reports in March and September 1999, and democracy in the EU political system. We will mainly focus our attention on the first report and evaluate the two institutional mechanisms of political control, respectively the Commission censure procedure and the EP Temporary Committees of Inquiry, derived from the model of parliamentary democracy, which could have been used – instead of the Committee of Independent Experts which was finally chosen. We then intend to examine the circumstances in which the Committees of Independent Experts were created and highlight the flexibility of this new institution in the EU. We will finally propose two normative approaches to analyse the impact of the Committees of Independent Experts on the emergence of supranational democracy. PARLIAMENTARY CONTROL OF EXECUTIVE POLITICS Even though the EU is not a parliamentary democracy, strictly speaking, there are nevertheless several means of control – right of censure or Temporary Committees of Inquiry – directly derived from the political model prevailing in national parliamentary systems. The Commission’s right of censure In the EU Treaties, individual Commissioners can be forced to resign following an ECJ decision, on application of the Council or the Commission, for failing to act with integrity and discretion, which binds holders of high public office.


C. Lequesne & P. Rivaud: The Committees of Independent Experts

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Such a procedure has not been used since 1952 because there has been no legal action. There is also another type of sanction established in the Treaties – the vote of no-confidence by the EP against the whole of the Commission, which is then forced to resign collectively. Such a procedure, directly inspired by national parliamentary democracies, has been used several times since 1952 but has never led to the resignation of the Commission (Chauchat 1989). Of the motions of censure submitted since the creation of the EP on such varied questions as the common agricultural policy, aid to the former Yugoslavia or the bovine spongiform encephalopathy (BSE) crisis, only some were submitted to a vote and some were withdrawn as soon as they were effectively introduced. All motions failed to get a majority vote in the EP that would have forced the Commission to resign (Clergerie 1995). Two main reasons may explain why the censure mechanisms have failed to work effectively. First, the motion of censure was established in the Treaties more as a threat than as a mechanism that can be used effectively. In the European Coal and Steel Community, the right of censure could originally be exercised only on the occasion of the debates on the annual report of the High Authority (Chauchat 1989). The transformation of this right into a more general mechanism of control on the Commission’s management was progressively established in the Treaties of Rome, but with drastic restrictions – the passing of a motion of censure requires a two-thirds majority of votes cast, amounting to a majority of the component Members of the European Parliament (MEPs). Because of the absence of majority rule based on a clearcut party division between the left and right wings in the EP, there is hardly any chance of censuring the Commission – which does not reflect a clear majority option either. In short, there is some structural incompatibility between the right of censure derived from the model of parliamentary democracy, and the EU political system that is not founded on the majoritarian model. Although experience has revealed some sort of tentative majoritarian system in the EP (Delwit et al. 1999), persistent cleavages have also been highlighted – notably national ones – which have prevented any real confrontation between stable majorities and minorities. In January 1999, the motion of censure proposed after the EP’s refusal to pass the 1996 Community budget was another striking instance of national preference at work. As two Commissioners, French Socialist Edith Cresson and Spanish Socialist Manuel Marin, were being given a tough time by the EP, all the Spanish MEPs and half the French MEPs from the Conservative Group of the European People’s Party and the European Democrats voted against the motion of censure for reasons of national solidarity. So it appears that the motion of censure does not fit well with the low ‘cross-party logic’ within the EP where nationality and multiple cleavages remain strong and reveal more of a model of consensational democracy (Lijphart 1975; Taylor 1991). Secondly, the absence of concrete results may also be found in what Vlad Constantinesco called ‘the relations of good intelligence, or complicity, between


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the EP and the Commission’ (Constantinesco 2000: 120). In the institutional exchange which has progressively been built up over fifty years between the Council, the Commission and the Parliament, the objective interest of both the Commission and the EP has been to defend the logic of the EU Community method (which gives them power in the decision-making process) to the detriment of the intergovernmental method (which excludes them). But this complicity has to be nuanced as the EP has increasingly infringed on the initiative power of the Commission. With the entry into force of the Treaty on European Union (TEU), it has accepted that the Commission should submit all proposals on questions which may require the elaboration of a Community act. The legislative procedure of co-decision introduced since the TEU has increased negotiation patterns between the EP and the Council. As Michael Shackleton points out, the ‘trialogues’ institutionalized since 1995 between the Presidency of the Council, the EP and the Commission, in case of deadlock in the co-decision procedure, do not allow the Commission to impose its views as firmly as the other two institutions. ‘The result is that the Commission sometimes feels it is in a clearly inferior position whereas the other two institutions are developing a sense of solidarity which helps them to find agreements’ (Shackleton 2000: 336). In spite of this evolution, the Commission still defends increased ‘communitarization’ in EU activities (extension of the qualified majority rule and of codecision in legislative matters etc.), which corresponds to the expectations of a majority of MEPs.2 In short, the EP and the Commission are both interested in defending a common vision of the institutional future of the EU. Such a common vision also makes it highly improbable that the right of censure, as established in the Treaties, could be used effectively. Such a situation prompted some MEPs to begin debating about a reform over the last ten years, and to ask for ‘individual and conditional control’ (Costa 2001: 181). In the BSE beef crisis in February 1997, some MEPs adopted a resolution of ‘suspensive censure’. They stated that a motion of censure would be proposed if the recommendations of the Temporary Committee of Inquiry on the BSE crisis did not lead to significant institutional changes in the Commission. As the Temporary Committee of Inquiry concluded that the Santer Commission had taken up its main recommendations, the EP renounced its use of its right of censure (Blanquet 1998). ‘Selective censure’ was also evoked during the BSE crisis. In order to disturb the institutional work of the Commission as little as possible, some ‘consensus-minded’ MEPs suggested that the Santer Commission should be censured while inviting national governments to appoint the same Commissioners, and remove the ‘guilty’ ones. Although these proposals did not lead to any reform in the censure mechanisms, Romano Prodi, who replaced Jacques Santer, acknowledged this threat and declared, in his 1999 opening speech to the EP, that he supported the need for greater individual responsibility of the Commissioners. In his own words, the President would ‘have the power to dismiss Commissioners’ if



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personally implicated. During the preparation of the Nice Treaty, the report of the Committee on Constitutional Affairs, written by MEPs Giorgos Dimitrakopoulos and Jo Leinen, proposed introducing in the Treaty the obligation for Commissioners to resign, on the request of the President, for failing to fulfil conditions for the performance of their duties or for serious misconduct. Such a measure, which was intended to reinforce the Commissioners’ individual responsibility, was taken up by the Intergovernmental Conference and incorporated in the Treaty of Nice in December 2000. The Dimitrakopoulos–Leinen report also suggested that the EP – like the Council and the Commission – could ask the ECJ to dismiss a Commissioner for having failed to comply with his/her duties of integrity and discretion. If accepted, this measure would have significantly increased the EP’s powers of control, but it was not incorporated in the Treaty of Nice (Dimitrakopoulos and Leinen 1999). For all these reasons, the right of censure is too theoretical to be a really efficient means of democratic control at the EU level. It is not much exercised either in national democracies regulated by rationalized parliamentary forms. No motion of censure has been passed in France since 1962, in UK since 1979 and in Germany since 1982 (Meńy 1996). That is the reason why parliaments at both national and European levels have opted for more flexible modes of control – oral and written questions, inquiries and hearings – with no systematic formal sanctions. The European Parliament’s supervisory powers In their effort to be ever closer to the model of parliamentary democracy, MEPs have also envisaged the setting-up of Temporary Committees of Inquiry in charge of investigating alleged contraventions in the implementation of Community law or misadministration by a Community institution or organ, a national administration or EU residents. Since the 1979 direct election, several Temporary Committees of Inquiry have been set up to investigate such varied questions as the transportation of dangerous and toxic substances after the Seveso industrial disaster, racism and xenophobia, nuclear waste management after the accident in the Mol nuclear power station in Belgium, the BSE crisis, the ECHELON interception system, and foot and mouth disease. Although the Temporary Committees of Inquiry are evidence of the EP’s own capacity for internal organization, there was no standing in law until 1993. It was only with the Treaty of Maastricht that national governments officially acknowledged the existence of the Committees but drastically restricted their powers of inquiry – a Temporary Committee of Inquiry may only be set up by the EP at the request of a quarter of its members and its power of inquiry must only be exercised if it does not conflict with the prerogatives of other EU institutions, and never in judicial cases. Moreover,


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governments insisted that the EP’s right of inquiry should be defined in an inter-institutional agreement between the EP, the Council and the Commission. The inter-institutional agreement took fifteen months of hard and painstaking negotiations between the three institutions. The Council and the EP were in conflict over the possibility of the EP having access to some documents without jeopardizing their confidentiality (Monar 1994). The final agreement on 19 April 1995 was only reached after ‘important concessions on the part of the EP about the transmission of official documents by national governments’ (Costa 2001: 219). The supremacy of national governments as regards increasing ‘communitarization’ of EU activities thus appears as a clear limitation on the capacity of the EP to exercise some form of autonomous control. Between the TEU and the creation of the Committees of Independent Experts in 1999, two Temporary Committees of Inquiry were set up within the EP and thereby allowed MEPs to test their effective power of inquiry.3 One Temporary Committee chaired by British Socialist John Tomlinson was set up in January 1996 to investigate an important but little publicized case of infringement of the Internal Market regulations – the transit regime of goods within the Community. A second Temporary Committee chaired by the German Christian-Democrat Reiner Bo¨ ge was created in July 1996 and investigated the much debated issue of the BSE crisis. As Michael Shackleton points out, the objectives of those two Temporary Committees of Inquiry were to shed light on two very different types of responsibility for examples of fraud and mismanagement (Shackleton 1998). The Committee which investigated the transit of goods denounced the weaknesses in the system of free movement of goods rather than blamed individuals or administrations. Conversely, the Committee on BSE revealed instances of malfunctioning and mismanagement in the British Agriculture Ministry and in the Agriculture Directorate-General (DG) of the Commission. Both Temporary Committees of Inquiry whose reports were examined and debated during a plenary session had similar methods of working and, contrary to their counterparts in national parliaments, were given very limited means of investigation – understaffed Secretariats, no proper budget to conduct their inquiries. They were also obliged to follow procedural rules for their visits outside the EP premises. Contrary to the Commissioners who cannot refuse to answer questions from the Committee because of the close interrelationships between the Commission and the EP, such was not the case for members of national governments. British Agriculture Minister Douglas Hogg refused to meet the Committee which investigated the BSE crisis but chose to send a high civil servant, as was his right under the 1995 inter-institutional agreement – much to the dismay of the MEPs (Shackleton 1998). But for all that, the impact of the Committees’ inquiries was not negligible. If the critical report on the BSE crisis did not prompt the EP to pass a motion of censure against the Commission, President Jacques Santer was forced to acknowledge the mishandling of the crisis by the Commission and proposed some institutional changes in the Commission’s administration. Thus, in February 1997, the sanitary and


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veterinary controls were transferred from the Agriculture DG to the Health and Consumer Protection DG. In short, these two examples show the Commission’s willingness to comply with the rules established by the Temporary Committees of Inquiry. Such rules could theoretically have been renewed in January 1999 when new allegations of fraud and mismanagement came up. But the EP preferred to set up an ad hoc institution composed of independent outside experts.


THE CREATION OF AN AD HOC CONTROL INSTITUTION The Committees of Independent Experts show how easily the EU can create ad hoc institutions. They also testify to the emergence of groups of ‘wise men’ in the service of the Community institutions, who establish the norms and principles of sound administration. Institutional innovation in the European Union In January 1999 the EP ‘delegated’ its supervisory mission to a Committee of Independent Experts which was not constituted under any precise institutional regulations and had a priori no formal investigative power.4 But it is interesting to analyse the reasons that led to the creation of the two committees, respectively in January and March 1999. The failure of formal audit and control mechanisms and the vague ethical responsibility of the Commission – not clearly defined in Community law – show the indefinite and scattered nature of the norms and values that regulate Community public life. They also prove the flexibility of institutional innovation within the EU. Given the persistent lack of efficiency of formal control procedures, the Committees of Independent Experts have proved their worth and imposed this new institution. Internal auditing – the Unit for the Co-ordination of Fraud Prevention (UCLAF) and the Financial Controller5 – and external auditing – the Court of Auditors’ reports, the EP Committees of Inquiry, the censure mechanisms – were considered not effective enough in January 1999. The conclusions drawn by the Committees of Independent Experts were critical. Their diagnosis revealed that the external auditor – the Court of Auditors – produced reports which were clear and to the point on most of the cases under consideration, but that only one of the two arms of the budgetary authority – Parliament – gave them proper consideration. The independent experts also stated that the Commission’s internal audit and control mechanisms failed to work effectively, that not all the cases which warrant consideration were dealt with in right time and that these procedures allowed scope for any conclusions to be watered down.6 For Vlad Constantinesco, the report could have been even more critical. The creation of a Committee of Independent Experts meant that official control authorities lacked both expertise and independence. The Committees examined cases which had already been undertaken by the


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competent bodies of the EU: the Court of Auditors and the EP (Georgakakis 2000). EP President Jose´ Maria Gil-Roble`s justified the creation of a committee of ‘wise men’ in the following terms: ‘It is sometimes necessary to appeal to persons under no political influence, persons who are above all suspicion.’ 7 In other words, the control and disciplinary mechanisms were not only labelled as ineffective but also as not impartial enough. A second justification for the creation of the Committees can be found in the technical (mismanagement) and ethical (fraud and nepotism) responsibilities of the Commission which are not well defined in Community law and are difficult to identify by the EU control institutions. The role of the Committees of Independent Experts was therefore not to judge, in the judicial sense of the word, nor even to find any political responsibility – Community law makes ample provisions for both cases – but to define a new form of responsibility based on a common core of standards of proper behaviour – in the absence of specific rules or codes of conduct.8 The main originality of the Committee is thus to be found in its status. The Committee is not a European institution, and is neither a Community institution nor a Community court, since it has no formal investigative power. It draws its authority from the resolutions of the EP and the commitment of the Commission to support its work and to recognize its findings.9 The authority of the Committee is therefore reinforced by particular circumstances – a ‘dramatic’ context in EU politics. A ‘European establishment’ in the service of EU politics There is much literature on the role of experts in the EU, mainly written by analysts working on Community policies (Radaelli 1999). But there has been little research into the typology of these experts in the EU political system. It is indeed interesting to distinguish several types of expert according to their respective legitimacy. First, there are the ‘specialist’ experts whose legitimacy is based on technical expertise (national civil servants, representatives of interest groups, consultants). Then there are the ‘mediator’ experts whose legitimacy is founded on their capacity to find compromises between the multi-level actors of the political system (Commission and Council Presidency officials). There are, finally, the ‘wise’ experts whose legitimacy rests on their ability to interpret the political nature of the EU by establishing values, norms and rules. The members of the two Committees of Independent Experts clearly belong to the third category. The five members were jointly chosen by the EP and the Commission from two professional categories – lawyers and members of public audit institutions. Among the law specialists who drafted the first report, published in March 1999, were Walter Van Gerven from Belgium, who had formerly been an Advocate-General in the ECJ, and Juan Antonio Carillo Salcedo from Spain, a former member of the European Court of Human Rights (ECHR). There were also three auditors: Andre´ Middelhoek from the Netherlands and Pierre



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Lelong from France, both former Presidents of the EU Court of Auditors, and Inga-Britt Ahlenius from Sweden, a former budget director and general auditor in the Swedish National Audit Office. The second Committee, which submitted its report in September 1999, was composed of the same members, with the exception of Juan Antonio Carillo Salcedo who was replaced by Antonio Tizzano from Italy, a lawyer from the Italian Permanent Representation before becoming an Advocate-General in the ECJ. The President of the Commission did not object to these appointments, except for Andre´ Middelhoek who had been a very critical president of the EU Court of Auditors in his former dealings with the Commission. The prominent personalities in the Committee quickly proved to be those who were familiar with the EU decision-making process, namely Walter Van Gerven, Pierre Lelong and Andre´ Middelhoek.10 The previous experience of these individuals, who had occupied important positions in the ECJ and the Court of Auditors, and their professional legitimacy prompted the EP and the Commission to appoint them. We can therefore put forward the hypothesis that there is a dynamic towards the creation of a European politico-administrative establishment composed of ‘wise’ personalities who are called upon by the Community institutions to propose solutions to critical situations and whose political expertise prevails over their representativeness in public opinion. The same approach was chosen by the EU when it tried to find a way out over the sanctions imposed on Austria. Through the President of the ECHR, the fourteen European governments asked three individuals – among them the Max Planck Institute President and a former Secretary-General of the Council of Europe – to report on the democratic situation in Austria since the ¨ sterreichs (FPO ¨ ’s) entry into the government coalition Freiheitlichen Partei O in Vienna. The report led to the lifting of sanctions.11 Likewise, in February 2000, the Conference of Presidents of the EP decided to set up a group of independent individuals in charge of drafting a report on the common statute of MEPs, a highly controversial issue for both the EP and national governments. In this case, recommendations were also sought from those appointed mainly for their knowledge of the intricacies of EU institutions – Niels Ersbol, a former Secretary of the Council, Mr Subirats, a former President of the EU Court of Auditors, and Lord Williamson, a former Secretary-General of the Commission. The complexity of the EU decisionmaking process thus led to the setting-up of committees of ‘wise men’ in charge of settling conflicts through both technical and normative decisions. The European establishment had links with national politics. Although difficult to prove, the independence of the Committees of Independent Experts was limited by the involvement of their members in national politicoadministrative systems. We cannot ignore the fact that some members of the Committees of Independent Experts had regular contacts with their national governments during the investigations. The normative conclusions of the first report, which led to the resignation of the Santer Commission, could be explained by the temptation of some members of the Committee, at the

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request of some governments, to restrict the individual responsibility of some national Commissioners under investigation, by reducing the scope of the report to general considerations. As various studies on the EP and the Commission have shown (Costa 2001; Lequesne 2000), the work of the Committees of Independent Experts is marked by dual dialectics between independence from, and dependence on, the national governments.


From auditing to norms of ‘sound European administration’ The fundamental mission of the Committees of Independent Experts was close – in its organization though not in its official definition – to that of an audit body or a Court. The note adopted by the Conference of Presidents at its meeting on 27 January 1999 stipulated that ‘all relevant documentation that the Committee wished to look at would be made available’, including the UCLAF documents. The Committee was also entitled to interview any Commissioner, official or service member. The staff of the institutions who the Committee wanted to interview or who, unprompted, wished to express their views, were exempted from all secrecy obligations imposed on them by staff regulations (Van Buitenen 2000). So the Committees interviewed Commissioners, civil servants and MEPs, with the help of officials from the EP Secretariat. Some external personnel, such as the representatives of companies which felt that their rights had been infringed, were also interviewed. The Committee members did not have access to the Directorates-General within the framework of a general right of access to documents – which could have made it possible to bring to light some unknown documents or new facts. The only documents used by the Committees were those asked for through an ad hoc procedure which was the result of negotiations with the Commission. The work carried out by the Committee of Independent Experts in its first report was similar to a judicial inquiry as it is structured according to specific files (tourism, MED, ECHO, Leonardo, etc.). In the second report, the Committee acted as a public or private audit body and analysed the sequence of procedures in some management mechanisms (award of contracts, advice to decision-makers, outsourcing of tasks). In both cases, the Committees concentrated on hard facts but, in contrast, the normative and general conclusions of their reports, especially the first one, resemble more a document issued by a political institution than a Court or an audit institution. The call for ‘the responsibility of the Community . . . the ultimate manifestation of democracy’12 in the conclusions of the first report proves that the Committee members felt that their mission was to establish the principles of sound administration, beyond a mere listing of facts. The ensuing political debate which led to the resignation of the Santer Commission in March 1999 was thus nurtured by the conclusions of the reports and not by the detailed inquiry conducted by the Committee, which found only one instance of favouritism concerning Commissioner Edith Cresson.


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In their endeavour to define the political responsibility of the Commission, the Committee members established norms and values which should prevail in the EU. The references made in the first report to the work of the Nolan and Neil Committees, which had tried to define norms and principles of proper behaviour in the British public administration, show that the Committees of Independent Experts wished to contribute, in the same vein, to the making of a supranational democracy. They insisted on the necessity of a clear definition of decision-makers’ accountability, all the more so as they knew from experience that the EU political system is diffuse and hardly comprehensible to its citizens (Dawn 1997). TWO NORMATIVE APPROACHES TO SUPRANATIONAL DEMOCRACY From a study of the Committees of Independent Experts, several normative approaches to how democratic the EU is, can be proposed. We have chosen to retain two of them. The first approach directly refers to the model of the nation-state and highlights the absence of effective democracy as political control by the EP is still weak. The second approach points to the emergence of non-parliamentary democracy where a new mode of legitimacy – expertise – prevails over elections and political representation. The Committees of Independent Experts as the mirror of an incomplete representative model This normative approach leads to the conclusion that democracy is still incomplete in the EU, because there is no effective parliamentary regime in which the EP would really have some supervisory control over the Commission or the Council (Greven 2000). The reason is that the EP, a directly elected body, has never been able to exercise any effective political control through the use of the formal instruments provided by EU constitutional law. According to this statomorphist theory, the EP has regretfully delegated the control of the Commission to a Committee of Independent Experts, because it could not effectively use the mechanism of censure or the Temporary Committees of Inquiry. Likewise, the Commission showed its lack of democratic maturity when it immediately resigned after the publication of the first report of the Committee of Independent Experts, and did not try to defend its case in front of the EP because of lack of sufficient internal leadership. Such an approach highlights the fact that one of the main deficits of the EU in terms of democracy is the absence of any majority rule based on the political parties and public opinion at the European level, what Robert Dahl calls a system of ‘citizen participation’ (Dahl 1994). This normative approach, which analyses the EU from the perspective of a national parliamentary democracy, is largely adopted by political and administrative actors when they reflect on the reform of the European institutions.


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For instance, it undoubtedly influenced the European advisory committee of the ‘Notre Europe’ association, created by Jacques Delors, which proposed in May 1998 that each political group should appoint its own candidate to the post of President of the Commission on the occasion of the EP elections.13 The French report on the reform of the European institutions handed over in 1999 by the group chaired by Jean-Louis Quermonne to the Commissariat Geńe´ral au Plan, also highlighted the problem of democracy in Europe; it took its inspiration from the model of national parliamentary democracy. It insisted, for instance, on the necessity for a ‘stricter separation of powers . . . between the governmental function, exercised conjointly by the Council and the Commission, and the legislative function of the European Parliament codeciding with the Council’ (Quermonne 1999: 52). We do not intend to comment on this normative approach, but it seems to prevail in the current political debate in the European Convention on the Future of Europe, and to be more and more at odds with the philosophers’ and political scientists’ model of supranational democracy, which goes beyond the normative reference to the state (Habermas 2000). The Committee of Independent Experts as the mirror of postparliamentary democracy The second approach breaks with a rather stato-national concept of democracy that confers a fundamental role on the parliamentary institutions. The EU should rather be seen as a political system under no state control, which turns to other sources of legitimacy as expertise or ‘system effectiveness’, to quote Robert Dahl again (Dahl 1994). The experience of the Committees of Independent Experts reveals that the legitimacy of democratic control in the EU is no longer in the hands of political representatives. It comes from experts and ‘wise men’ who define the standards of sound administration – as they act primarily as judges of how efficient political processes are. The conclusions of the Committees of Independent Experts, which brought about the resignation of the Santer Commission and the internal reforms promoted by Commissioner Kinnock, therefore demonstrate that the legitimacy of the experts, who are empowered to tell EU citizens how the EU should work, now prevails over that of the MEPs who are elected to represent them. The contribution of the experts should thus be so prevalent in the EU that it should show evidence of the emergence of a new model of postparliamentary democracy (Andersen and Eliassen 1996). Such a thesis is supported by many studies on post-national democracy by both international specialists and political theoreticians (Held 1995; Grande 2000). If these specialists clearly show the multiplication of the modes of democratic legitimacy, they overlook – in our view – the importance that the model of parliamentary democracy still has in the perceptions of European politicians and citizens. We hold that these new modes of democracy are to be added to, and not substituted for, parliamentary democracy. Entrusting experts – whether


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they be ‘wise men’, central bankers or civil servants – with the smooth running of democracy directly addresses the problem of their accountability to elected representatives.


CONCLUSION By focusing on a limited topic – the Committees of Independent Experts – our objective was to analyse the tensions that exist within the EU between different modes of democracy. Our study shows that democracy through the EP is limited in the EU. The creation of the Committees of Independent Experts is the direct result of the EP’s inability to bring into play the formal mechanisms of parliamentary control – the right of censure and the Temporary Committees of Inquiry. Through the use of experts to control the Commission, the EP has acknowledged the importance of non-parliamentary modes of control in the EU. Although the Committees of Independent Experts are better adapted to the EU institutional structure, they remain highly questionable as they rely only on the experts’ commitment. Their legitimacy is fragile because they act mainly outside the sphere of public debate. They can easily be diverted from their objectives or even ‘won over’ by the very actors they are supposed to control. They cannot therefore be seen as the pillars of a new normative system and cannot ensure, alone, the development of a new supranational democracy. Addresses for correspondence: Christian Lequesne, CERI – Sciences Po, 56, rue Jacob, F-75006 Paris, France. Tel: ò331 58 71 70 40. email: lequesne@ ceri-sciences-po.org/Philippe Rivaud, 45, avenue des Celtes, B-1040 Bruxelles, Belgium. Tel: ò322 298 49 24. email: [email protected] NOTES 1 In its conclusions, the Committee found that Edith Cresson was the only Commissioner to bear responsibility for one instance of favouritism. 2 Cf. Speech by Romano Prodi at the EP after the European Council of Nice, 12 December 2000. 3 Other Temporary Committees of Inquiry were set up after 1999. 4 See articles 1.2.2 and 1.2.3 in the First Report of the Committee of Independent Experts. 5 The DG in charge of Financial Control (ex-DG XXI) exercises ex ante and ex post control of the legality and regularity of expenditures. 6 See articles 9.4.11 and 9.4.17 in the First Report of the Committee of Independent Experts. 7 Agence Europe, no. 7383, 15 January 1999, p. 6; emphasis added. 8 See article 1.5.2 in the First Report of the Committee of Independent Experts. 9 See articles 1.2.2 and 1.2.3 in the First Report of the Committee of Independent Experts. 10 Interview, Brussels, 19 October 2000. 11 Report written by Martii Ahtisaari, Jochen Frowein and Marcelino Oreja, Paris, 8 September 2000.

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12 See article 9.4.25 in the First Report of the Committee of Independent Experts. 13 See http://notre-europe.assoc.fr


REFERENCES Andersen, S. and Eliassen, K. (eds) (1996) The European Union. How Democratic Is It?, London: Sage. Blanquet, M. (1998) ‘Le controˆ le parlementaire europeén sur la crise de la vache folle’, Revue du Marche´ commun et de l’Union europeénne, 420: 457–70. Chauchat, M. (1989) Le controˆle politique du Parlement europeén par les exećutifs, communautaires, Paris: LGDJ. Clergerie, J.-L. (1995) ‘L’improbable censure de la Commission europeénne’, Revue du droit public et de la science politique 1: 201–21. Committee of Independent Experts (1999a) First Report on Allegations regarding Fraud, Mismanagement and Nepotism in the European Commission, Brussels, 15 March. Committee of Independent Experts (1999b) Second Report on Reform of the Commission. Analysis of Current Practices and Proposals for Tackling Mismanagement, Irregularities and Fraud, Brussels, 10 September. Constantinesco, V. (2000) ‘La responsabilite´ de la Commission europeénne. La crise de 1999’, Pouvoirs 92: 117–31. Costa, O. (2001) Le Parlement europeén. Une assembleé de´libe´rante, Bruxelles: Editions de l’Universite´ de Bruxelles. Dahl, R. (1994) ‘A democratic dilemma: system effectiveness versus citizen participation’, Political Science Quarterly, 109(1). Dawn, O. (1997) ‘Standards of conduct in public life – what standards?’, Public Law, Winter: 497–503. Delwit, P., DeWaele, J.-M. and Magnette, P. (dir.) (1999) A quoi sert le Parlement europeén?, Bruxelles: Complexe. Dimitrakopoulos, G. and Leinen, J. (1999) Report on the Preparation of the Reform of the Treaties and the Next Intergovernmental Conference, European Parliament, Committee on Constitutional Affairs. Georgakakis, D. (2000) ‘La de´mission de la Commission europeénne: scandale et tournant institutionnel (octobre 1998–mars 1999), Cultures et Conflits 38–9: 39–71. Grande, E. (2000) ‘Post-national democracy in Europe’, in M.T. Greven and L. Pauly (eds), Democracy beyond the State, New York: Rowman & Littlefield. Greven, M.T. (2000) ‘Can the European Union finally become a democracy?’, in M.T. Greven and L. Pauly (eds), Democracy beyond the State, New York: Rowman & Littlefield. Habermas, J. (2000) Apre`s l’Etat-nation. Une nouvelle constellation politique, Paris: Fayard. Held, D. (1995) Democracy and Global Order: From the Modern State to Cosmopolitan Governance, Stanford: Stanford University Press. Lequesne, C. (2000) ‘The European Commission: a balancing act between autonomy and dependence’, in K. Neunreither and A. Wiener (eds), European Integration after Amsterdam. Institutional Dynamics and Prospects for Democracy, Oxford: Oxford University Press, pp. 36–51. Lijphart, A. (1975) The Politics of Accommodation: Pluralism and Democracy in the Netherlands, Berkeley: University of California Press. Meńy, Y. (1996) Politique Compareé, Paris: Montchrestien. Monar, J. (1994) ‘Interinstitutional agreements: the phenomenon and its new dynamics after Maastricht’, Common Market Law Review 31: 693–719. Quermonne, J.-L. (dir.) (1999) L’Union europeénne en queˆte d’institutions le´gitimes et efficaces, Rapport au Commissaire Geńe´ral au Plan, Paris, La Documentation Française.


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Radaelli, C. (1999) Technocracy in the European Union, London: Longman. Shackleton, M. (1998) ‘The European Parliament’s new committees of inquiry: tiger or paper tiger?’, Journal of Common Market Law Review 36(1): 115–30. Shackleton, M. (2000) ‘The politics of co-decision’, Journal of Common Market Studies 38(2): 325–42. Taylor, P. (1991) ‘The European Community and the state: assumptions, theories and propositions’, Review of International Studies 17(2): 109–25. Van Buitenen, P. (2000) Fraudes a` la Commission europeénne, Paris–Bruxelles: CastellsLabor.



Democracy in the age of the euro Nicolas Jabko

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Centre d'Etudes et de Recherches Internationales (CERI) of Sciences Po , Paris, France Published online: 04 Feb 2011.

To cite this article: Nicolas Jabko (2003) Democracy in the age of the euro, Journal of European Public Policy, 10:5, 710-739, DOI: 10.1080/1350176032000124050 To link to this article: http://dx.doi.org/10.1080/1350176032000124050



Democracy in the age of the euro


Nicolas Jabko

ABSTRACT The Maastricht Treaty established an independent European Central Bank (ECB) in charge of managing Europe’s new currency, the euro. But in recent years, many have expressed fears that the ECB’s independence could lead to an undemocratic situation in which central bankers are never held accountable. Based on an analysis of the relations between the ECB and the European Parliament, this article demonstrates the emergence of a certain practice of central bank accountability. This practice, which is both real and limited, can be understood as the result of a power play between central bankers and parliamentarians in the institutional context of the European Union. In the age of the euro and economic globalization, the difficulty of defining a border between expertise and politics casts a new light on a fundamental problem of democracy. KEY WORDS Accountability; European Central Bank; European Parliament.

The independence of the European Central Bank (ECB) was conceived at the time of the Maastricht Treaty as a way to shield the guardians of the new European currency from political turmoil. This independence has a quasiconstitutional value, since any major revision of the ECB statute would require an intergovernmental conference and unanimous agreement between the member states. The Treaty stipulates that the ECB cannot take orders from member governments or any other European Union (EU) bodies. The Bank’s main objective is to maintain price stability within the single currency zone and its decisions can in no way be influenced by short-term considerations – especially electoral calculations that might affect governmental action. In the spirit of the Treaty, the risk of an inflationary spiral provoked by a stimulation of short-term growth is unacceptable. Everything must be done to prevent a return to the vicious circle of the 1970s, characterized by a combination of economic stagnation and high inflation in most European countries. Yet this vision of monetary policy as a sanctuary came under attack immediately after it was enshrined in the Treaty on European Union. In the Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124050


N. Jabko: Democracy in the age of the euro

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1990s, the independence of the ECB became one of the most disputed symbols of the ‘democratic deficit’ in the European integration process. The economic and monetary union (EMU) came to embody ‘the triumph of technocratic elitism over the idea of political democracy’ (Dyson and Featherstone 1999: 801).1 As the deadlines for monetary union got closer, political scientists started to investigate the problem of accountability that the independence of the ECB raised in relation to the fundamental principles of democracy (Verdun 1998; Elgie 1998; Berman and McNamara 1999). Not only the independence but also the supranational nature of the ECB was taken as a symptom of the ‘erosion of democracy’ in an era of capital mobility (Cerny 1999; Sassen 1996: ch. 1; Cohen 1998: chs 6–8; Scharpf 1999: ch. 1).2 Meanwhile, the problem of the ECB’s accountability was also studied by economists from the perspective of the credibility of its monetary policy (Buiter 1999; Eijffinger and DeHaan 1996). In order to make the independent ECB’s monetary decisions credible in the eyes of financial market actors, central bankers must be kept accountable for their actions and their decision-making process must be transparent. The issue of accountability became even more salient with the establishment of the ECB and the introduction of the euro in 1998–99, when the main concerned actors had to take a stance in the debate. First, Members of the European Parliament (MEPs) started to uphold a ‘broad’ interpretation of the Maastricht Treaty. In their view, the ECB has ‘not only rights but also duties’ in terms of ‘democratic accountability’, especially vis-a`-vis the European Parliament itself.3 Secondly, European Central Bank executives responded in a rather positive way. They accepted the principle that ‘independence and accountability are the two sides of the same coin’ and even declared their ambition to turn the ECB into ‘the most transparent and accountable central bank in the world’ (Issing 1999: 505; Padoa-Schioppa 2000: 28).4 As the main actors demonstrated an increasing willingness to play the game, progress towards more central bank accountability became possible, even though the Treaty did not explicitly provide for it. This article argues that recent debates on the ECB’s accountability have produced effects that are both real and limited. On the positive side, a certain practice of accountability has emerged on the part of the independent ECB since the introduction of the euro, which can be assessed today. Since the concern about central bank accountability was previously almost non-existent on the continent, the main actors have looked at foreign models as sources of ideas, especially the US model where the president of the Federal Reserve is accountable to Congress.5 Thus, they have literally imported an AngloAmerican political discourse on accountability.6 More generally, the main actors have engaged in a complex game that amounts to a collective process of defining the meaning of the ECB’s accountability. The game plays itself out especially through hearings of the ECB’s executive board before the European Parliament.7 The rules of that game are particularly interesting because they are not written in any legally binding text. The Treaty granted unequivocal independence to the ECB, but remained vague, or even minimalist, on the


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question of central bank accountability. As we will see, one of the major stakes is to define the inherently rather fluid boundaries between what pertains to ‘politics’ and what is in the domain of ‘expertise’. From this perspective, the progressive institutionalization of central bank accountability is a result of the leading actors’ capacity to mobilize allies and to build coalitions around ‘technical’ or ‘political’ arguments. At the same time, the fact that this debate has focused on the frontier between politics and expertise clearly suggests the limits of this institutionalization process. To understand why, it is useful to think about Max Weber’s analysis of the emergence of an autonomous administrative sphere at the heart of a modern political organization. According to Weber, bureaucracies derive their legitimacy from technical expertise, which works as an ‘iron cage’ (Weber 1968, vol. III: ch. 6; on the same theme, see also Mannheim 1946: ch. 3). In the present context, existing institutional forms correspond to a certain stage in the scientific discourse on monetary policy. The terms of this discourse, especially the legal principle of central bank independence and the priority given to price stability, have been enshrined in the Treaty. Today, the main task of the Central Bank is to set interest rates in order to provide for day-today credit allocation in the economy under non-inflationary conditions. By definition, this is a very technical exercise, even though it occurs within a political context. The whole problem is to ensure that central bankers act not only on the basis of technical parameters, but also in a manner compatible with the political choices that are the normal prerogatives of democratically elected officials. This problem of accountability arises in all political systems where central banks are independent – including the United States. But in the EU, the Treaty pushes the logic of the monetary stability particularly far. Under such conditions, central bankers perceive an interest in upholding a univocal and non-political vision of their mission. They can thus defend their independence and ward off any criticism that would not be related to their main objective, i.e. price stability. Irrespective of whether we think this situation is a good or a bad thing, it would be a mistake to entertain too many illusions about the effectiveness of democratic oversight over the ECB. In the rest of this article, the institutionalization of a seemingly consensual principle – i.e. central bank accountability – will be analysed on the basis of the declarations and manoeuvres of the concerned actors. We will see that the ECB is mainly accountable to the European Parliament, and that the Eurogroup – i.e. the caucus of euro area finance ministers within the EU Council – has been left out. This may be explained by the very content of the Treaty and the difficulties of co-ordinating the member governments’ economic policies, and also by the central bankers’ and MEPs’ respective interests. More generally, it is impossible to understand the debate over how to define the ECB’s accountability without taking into account the various interests of the concerned actors, as revealed by their official statements on the issue. There is no point in denying the reality or the acuteness of the underlying problem – how to reconcile the need for effectiveness, which serves to justify the


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independence of central bankers as monetary policy experts, and the principle of democracy, which at the very least entitles politicians to examine the decisions made by these experts. But this problem is the object of longstanding debates in political theory, whose terms are well known and which does not yield straightforward and uncontroversial solutions. When confronted with the emergence of central bank accountability as a salient issue, different actors first try to define both their interests and strategies according to their perception of the environment, and then take institutional positions on that basis. That is why the focus of the following analysis will be the rules of the game that actors play on the issue of the ECB’s accountability in the context of the introduction of the euro. We will then see that the stakes of this game cannot be separated from the defensive and offensive tactics of the main protagonists. I. THE RULES OF THE GAME Beyond their numerous tactical moves, actors’ behaviour is governed by three types of rules that are more or less explicitly accepted and that shape their positions on the question of accountability. First, the concerned actors are respectful of the treaty-based legal distribution of competences. The Treaty provides the various actors with legal arguments and fallback positions – or trump cards, so to speak – in case of a deadlock. But the Treaty remains almost silent over the practical modalities of the ECB’s accountability. The drafters of the Treaty have only mandated ‘consultation’ mechanisms, especially for the appointment of ECB executives, and ‘reporting requirements’ in all the other cases.8 Thus, Article 112 stipulates that the members of the ECB’s Executive Board are appointed by heads of state and governments, after consultations, especially with the European Parliament but also with the Governing Council of the European System of Central Banks.9 Not only is this article not very stringent, but it also seems to put on an equal footing a body like the European Parliament composed of elected representatives, and a non-democratically elected body, the Governing Council – essentially composed of the governors of the national central banks in the euro area. Besides, the Treaty on European Union’s article 113, completed by the Statute of the European System of Central Banks’ article 15, gives a very brief definition of reporting requirements.10 Under the Treaty, the ECB has a duty to periodically supply information about its monetary policy activities not only to other EU bodies, but also to any person interested. In short, the legal mechanism governing the ECB’s accountability, as strictly defined in the Treaty, is hardly constraining at all.11 There is a striking discrepancy if this aspect of the Treaty is compared with the numerous legal guarantees of the principle of central bank independence. As for the type of activities the ECB is accountable for, the Treaty is not very precise either. The ‘primary’ objective of the ECB is to maintain price stability (Article 105) while its ‘secondary’ objective is to support the Community’s economic policies ‘without prejudice to the objective of price stability’.12 Even


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if this somewhat cryptic article may be open to various interpretations, there are clear limitations imposed by the Treaty. As a strict hierarchy is made between primary and secondary objectives, it is therefore difficult to blame the central bankers for focusing all their attention on the objective of price stability. As long as this objective is not attained, central bankers are supposed to ignore the other objectives. In the absence of any precise definition of the objective of price stability in the Treaty, this is particularly important since the ECB is de facto sole judge as to whether this objective has been achieved or not, as long as it complies with its reporting requirements. Yet it would be wrong to believe that the actors’ perception of the ECB’s accountability is solely determined by the formal provisions of the Treaty. In fact – and this is the second rule of the game – actors navigate between the democratic schemes that flow from existing national models of central bank accountability, especially the US model. The ECB is now evolving not only within the circumscribed legal framework of treaties, but also within the broader political context of democratic governance as it stands in early twentyfirst century Western Europe. From a historical perspective, the principle of effectiveness that justifies the ECB’s independence has often been in tension with the democratic principle championed by elected political officials. Since their development in the nineteenth century, the central banks of the main European countries have oscillated between periods of expanding autonomy in the name of economic efficiency, and periods of government control due to the necessity of making their actions coincide with the public interest. Long before the Treaty of Maastricht, the central banks, which were originally private banks, experienced successive waves of nationalization and privatization. It would have therefore been very surprising if the political aspiration for some democratic control on monetary policies had vanished as soon as the principle of independence of the ECB was adopted. On this point, the German case is the exception that proves the rule. In the post-war era, the Bundesbank gained its independence as a reward for its contribution to the democratic stability (Stabilita¨tpolitik) of the Federal Republic of Germany.13 To be sure, the inflationary 1970s led other member states to realize the benefits of the German model of a strong currency guaranteed by an independent central bank. Nevertheless, the interest of the independence of the central bank was still mainly perceived in economic terms – in most member states, the German equation between monetary and democratic stability never really became part of the commonly accepted political wisdom. In so far as the idea of an independent central bank is intrinsically linked to the German political context, it is therefore easy to understand the difficulties encountered on the question of the independent central bank’s legitimacy at the EU level. On that point, it is interesting to note that the American model, not the German one, is the main source of inspiration for discussions on the ECB’s accountability to the European Parliament. The oversight function of the US Congress over the Federal Reserve is a constant reference in parliamentary discourse and in the argument in favour of ‘democratic accountability’.14 In



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fact, the European Parliament has repeatedly called for the import of key characteristics of this oversight model into the European political arena.15 While this does not mean that the Treaty has become null and void and that what was decided in Maastricht is now being questioned, the fact is that there is today a recurring debate in Europe on how to reconcile the ECB’s independence with democratic requirements. The emergence of the problem of democracy on such questions as the independence of the Central Bank points to the growing maturity of the EU. The importance of the power transfers toward a diffuse conglomerate of supranational institutions highlights the problem of the EU’s capacity to act in accordance with the member states’ common democratic norms. Here again, the American system of divided government, based on principles of competition and checks and balances, delineates a potential evolutionary trajectory for EU institutions. For the time being, the debate on the ECB’s accountability has progressively focused around certain set figures, especially because of the tension between the technical provisions that are institutionalized in the treaties and the political schemes to which the actors are able to appeal. And this is where the third rule of the accountability game comes into play. As it happens, actors tend to position themselves according to a fundamental distinction between ‘technical’ and ‘political’ questions. This third rule is essential and, in a sense, prevails over the other two. Even though the separation between expertise and politics embodies neither a legal rule nor a democratic scheme, it works as a matrix of potential solutions to tensions that arise from the first two rules. Generally speaking, a question is deemed ‘technical’ from the actors’ point of view (a) if there is an established consensus on objectives; (b) if the link between the objectives and the means is clear and univocal, i.e. if there is no fundamental dilemma on the necessary means to pursue the agreed upon goals; and (c) if the implementation of these means requires a prior analysis of a vast amount of information and, therefore, the mobilization of technical expertise. Conversely, a question is ‘political’ (a) if there are conflicting objectives, especially due to incompatible values or diverging interests of social groups; (b) if the means to achieve the objectives are open for choice; and (c) if the implementation of these means, because of their ethical and distributional repercussions, justifies the control of democratically elected officials. In an abstract sense, the fundamental rule that consists in making a distinction between what is ‘technical’ and ‘political’ is a matter of common sense. It is a relatively clear and explicit rule, accepted by most actors, which makes it possible to roughly define the respective domains of ‘experts’ and ‘politicians’. It also outlines the contours of the independent central bankers’ accountability vis-a`-vis elected representatives. The various actors do not agree at all on how to concretely apply this rule, however. This may be accounted for by the fact that bankers and politicians are not confronted with a simple black or white reality. On the one hand, monetary policy is not a purely technical matter, as it is always made in a political context. On the other hand, it is not a matter of pure politics, since ill-advised decisions may have disastrous


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consequences on the economy. But diverging interpretations on what is ‘technical’ and what is ‘political’ can also be explained, to a great extent, by the fact that this distinction governs different spheres of power. When we envision things from this perspective, it becomes obvious that actors generally try to defend or even expand what pertains to the technical or the political domain depending on their corporate interests or even their ideological preferences. Ultimately, the game is organized according to the capacity of the actors to mobilize and to build alliances around different possible conceptions of the accountability of an independent ECB. Two tactics may thus be distinguished. On the one hand, actors play in defence. ECB executives take advantage of their independence as experts and decision-makers in monetary policy, while the members of the European Parliament’s Economic and Monetary Committee try to highlight the political dimension of monetary policy. On the other hand, the actors also deploy offensive tactics. Central bankers invoke their politically impartial expertise in order to justify their incursions outside the terrain of monetary policy-making, whereas MEPs tend to challenge the monopolistic position of central bankers over monetary policy and to bring monetary issues back into the broader political debate. In short, what is at stake in this game is nothing less than the development of a new tradition of accountability for the ECB and the changing balance of economic policy powers that was inaugurated with the Maastricht Treaty in the early 1990s. II. THE DEFENSIVE GAME In the first place, the main actors have tried to define the concept of accountability in a defensive way. ECB officials have accepted the principle of accountability, but they have refused to concede any ground on the technical legitimacy of their independence, or on their exclusive institutional competence on monetary policy. As for the MEPs, they have struggled to impose themselves as the ECB’s privileged interlocutors in the democratic oversight of its decisions. Since these two defensive endeavours were largely compatible, a modus vivendi has emerged over the topic of the ECB’s accountability. The European Central Bank: independent expertise as a source of public good The ECB has always presented itself as a technical body in charge of a strictly defined mission that must be achieved in total independence. When asked what the ECB is accountable for, Europe’s central bankers give a clear and unequivocal answer – the ECB is only accountable for a single objective, namely the achievement of price stability.16 To avoid any ambiguity on this topic, the ECB even made a point of giving a quantitative definition of this objective, as a rate of increase of consumer prices below 2 per cent in the medium term.17 In their effort to play down the political context of their



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actions, ECB executives present monetary stability as a first-order public good and a prerequisite for the EU’s long-term prosperity. The ECB’s task is therefore to ensure price stability in total independence and to avoid any politically motivated deviation from this goal. In order to achieve such an objective, the ECB has announced from the start that it would pursue a monetary ‘strategy’, showing its ‘strong commitment’ to price stability as well as its will to ‘ensure transparency in the decision-making process and accountability of the ECB’.18 Yet this strategy functions not only as a means to ensure transparency, but also as a way for the ECB to assert its prerogatives. The three main elements of this ‘monetary strategy’ were internally determined by the ECB alone, then simply announced by way of a press conference.19 As for the implementation of this self-imposed strategy, the ECB has always endeavoured to increase its room for manoeuvre. ECB officials refer to a ‘reference value’ rather than a ‘target’ – a more binding term – and define price stability as a ‘medium-term’ objective yet without specifying any time horizon. For a long time, they also refused to define systematically how these two ‘pillars’ will be evaluated or weighted.20 In their eyes, the fact that the ‘monetary strategy’ creates many separations between economic reality and monetary decisions is justified not only by a desire to preserve some discretionary independence, but by the difficulties inherent to a monetary decisionmaking process that calls for cautious and detailed treatment of information. ECB officials have objected to the questioning of the various elements of their decision rules, since they consider that the ECB’s independence applies not only to the implementation of monetary policy, but also to the operational definition of its mission. In particular, the ECB board refuses the idea of a choice between the various objectives established under Article 105, especially between the primary objective of price stability and the secondary objectives of growth and employment. To take up the ECB’s favourite stock phrase, ‘the best contribution monetary policy can make to promote growth is to ensure price stability’.21 The relation between the various objectives of monetary policy is characterized as a relation of subordination – the ECB will not consider the objectives established in the Treaty as a set of potentially contradictory alternatives.22 This became a critical issue when the European Convention began to debate the possibility of a new constitutional definition of the ECB’s mandate. The ECB defends the status quo on this issue, arguing that the ECB’s mandate should remain the same.23 While acknowledging the oversight role of the European Parliament, the ECB’s president ‘deems it normal that an independent central bank should make its own judgment and ignore any type of advice given for political reasons’.24 The possibility of exercising a political choice between monetary stability and other public goods is rejected as incompatible with the institutional framework established by the Treaty and with state-of-the-art scientific knowledge on the credibility and effectiveness of monetary policy. More generally, ECB executives have always been very cautious not to


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accept, as part of their accountability requirements, any commitment that could jeopardize or reduce their independence in matters of monetary policy. While welcoming the idea of a ‘macroeconomic dialogue’ with elected officials, the ECB has since its creation always refused any type of ex-ante commitment that would impose a definite line of monetary conduct, or – even worse – any kind of negotiation with elected representatives over the parameters of monetary policy.25 The ECB considers that there can only be ex-post accountability and co-ordination, for fear of jeopardizing its independence. This is once again a purely technical interpretation of its action, since the central bank refuses to play any part in the political game of being accountable for its activities in real time. The only sanction that the ECB accepts as part of its accountability obligations is the risk of losing face vis-a`-vis political leaders if, and only if, it fails to achieve its main objective of price stability.26 Such a risk is not negligible for monetary officials whose reputation and legitimacy are based on their professionalism and technical expertise. But it is a minor one if we consider the sanctions that are usually associated with the notion of accountability in a democracy – the activation of powerful countervailing powers, or defeat in democratic elections. The European Parliament: parliamentary control as a minimum guarantee of democracy As political actors, MEPs claim the right to exert democratic oversight on the EU’s decision-making processes. The European Parliament clearly asserted this principle in a resolution of 2 April 1998: ‘in a democracy, the prerequisite is that the decisions taken by the public authorities must be transparent and accountable . . . this principle must apply to the conduct of monetary policy by the ECB.’ 27 At the same time, the Parliament had taken a resolution on its supervisory role over the ECB’s activities within the framework of the Treaty (see Magnette 2000). The chair of the Economic and Monetary Affairs Committee accepted that the ECB should determine its own strategy, including the operational definition of its mandate, in complete independence.28 A majority of MEPs accepted to respect the statutory provisions of the Treaty and, consequently, to criticize the ECB’s actions without questioning the legal framework of the Treaty. This shelving of a more radical strategy in asserting the European Parliament’s role stems from a ‘realistic’ perception of the institutional framework. MEPs were conscious of the fact that the Treaty was very difficult to modify and that, in addition, any potential modifications would never be debated in the Parliament.29 In such a context, many MEPs preferred to put up with it from the start, rather than try to challenge its foundations in a more radical way. Their main objective was therefore to reinforce their role as privileged interlocutors, in holding the ECB accountable through hearings of its officials. Even such an apparently modest role was far from certain, however. While the Treaty provided for some monitoring of the ECB’s



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activities by the European Parliament through the ‘reporting requirements’, nothing explicitly entitled the Parliament to claim any privileged status relative to the member governments or the Commission who also benefit from these requirements. Moreover, the Treaty is rather ambiguous over the real nature of these ‘reporting requirements’ and over the prerogatives of the different actors. For instance, the European Parliament may ‘hear’ the members of the ECB’s Governing Council, but the periodicity of these hearings is not stipulated. This is therefore all subject to negotiations between the ECB and the European Parliament, two bodies that obviously did not perceive their interests in the same way on these matters. Under such circumstances, the main strength of the European Parliament was that it represented ‘the only institution endowed with democratic legitimacy’ at the EU level.30 As early as a resolution of 4 April 1998, the European Parliament asserted its legitimacy: ‘As the only directly elected institution [in Europe], the European Parliament is a particularly appropriate institution to hold the ECB accountable.’ 31 MEPs have often explained that the German model of an independent central bank accountable to the ‘citizens’ was not feasible in the absence of any real European public opinion.32 Thus, parliamentary control was not only the best alternative, but also a minimal necessity given the reality of central bank independence. On this count, MEPs have expressed a keen interest in the US model, which makes the Federal Reserve accountable to Congress. The European Parliament thus engaged in a very bold attempt to invent and define a new form of accountability that was almost unprecedented in Europe’s political tradition. A new modus vivendi The sheer force of democratic ideals and the attraction of the US model are insufficient, however, to explain the prevalence of the concept of accountability in the official rhetoric of both the Parliament and the ECB. Instead, this evolution occurred when accountability became a terrain of political contest between two bodies that defended what they had identified as their primary interests. Central bankers succeeded in having their legal independence acknowledged in concrete terms, while MEPs were granted a privileged role in matters of accountability. Such a modus vivendi could only be reached because each actor possessed something that the other one desired. The ECB wanted more democratic legitimacy, which it could acquire through good relations with the European Parliament. Conversely, the European Parliament desired a greater say on the conduct of economic policy within the EU, which it could gain from its relations with the ECB. Thus, in many respects, the ‘dialogue’ between central bankers and MEPs developed into a form of exchange. This seems quite obvious when we study the evolution of the institutional positioning of the ECB and the European Parliament. The ECB initially tried to avoid any risk of confinement within a direct relationship with reputedly ‘political’ European bodies, including the European Parliament. For a while,


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the accountability of the central bank was presented as part and parcel of its ‘information and communication policy’. Indeed the Bank considered that it was mainly accountable to the European ‘public’.33 ECB officials often declared themselves satisfied with the degree of accountability of the ECB and they did not consider the European Parliament as a prominent player in this domain.34 In its annual report for 1998 (published in May 1999), there was a reference to the reporting requirements vis-a`-vis the European Parliament, but under the generic heading of ‘cooperation with the other institutions’.35 At that time, ECB executives seemed to regard the European Parliament as one European institution among many.36 They even refused, over a long period of time, to use the expression ‘monetary dialogue’ favoured by MEPs, but rather referred to ‘hearings’ or ‘exchanges of views’ with the European Parliament.37 The ECB’s official line was to consider that it was accountable to the European public in the most general sense, quite independently from its relations with other institutions.38 Such a broad interpretation of the notion of accountability presented not only the advantage of casting the ECB as a particularly ‘democratic’ institution, but also of avoiding any in-depth debate on monetary policy between the main actors. Meanwhile, a majority of MEPs quickly chose to stick to the Treaty, especially when they acknowledged the independence of the Central Bank as a key principle. The European Parliament could thus gain the ECB’s favour while asserting its role vis-a`-vis the member governments. For instance, it criticized almost explicitly the manoeuvres of the governments at the time of the appointment of the first president of the ECB in 1997 and, in particular, President Jacques Chirac’s reluctance to confirm this appointment.39 Later on, the European Parliament restated its total support of the ECB’s independence and expressed concern about the declarations of some governments, initiated by German Minister Oskar Lafontaine, in favour of ‘target zones’ for the exchange rate between the euro and the US dollar.40 As a consequence, the ECB was eventually seen as a potential ally by the central bankers, who were both worried about any possible encroachment on their prerogatives and convinced that they had to resist any political pressure from the finance ministers of the euro area. In such a context, the ECB progressively changed its vision of the European Parliament’s role in the oversight of monetary policy. As early as 1999, some members of the Board expressed quite diverging opinions about the ECB’s accountability and, more particularly, about the European Parliament’s role as the interlocutor of the ECB.41 For the first time, the 1999 Annual Report contained a whole chapter on ‘public information and the principle of accountability’, in which the European Parliament’s role was defined as follows: ‘the regular hearings of the President by the Economic and Monetary Affairs Committee [of the European Parliament] may certainly be regarded as one of the cornerstones’ of the ECB’s accountability (p. 141). At the end of 2000, the ECB eventually came to acknowledge officially the privileged role of the European Parliament in matters of accountability.42 Today, the European



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Parliament is thus regarded as the main body to which the ECB is accountable.43 The explanation for such a change of attitude can be found in the ECB’s own admission that the hearings ‘contribute to safeguard the independent status of the ECB. Consequently, it is certainly in the ECB’s enlightened interest to carry on with such relations.’ 44 Thus, the evolution of the ECB’s official position is, for the most part, the result of a simple calculation – the expected gains in terms of consolidated independence are far higher than the expected costs of acknowledging the European Parliament’s role as a privileged interlocutor. As long as the European Parliament respects the ECB’s independence, and as long as the bank’s accountability remains an ex-post exercise, the ‘dialogue’ is not very constraining and the ECB sees it as a way to increase its legitimacy and to defend its independence. As the ECB came to welcome the institutional role of this unexpected ally, the European Parliament did not hesitate to reward it for its constructive attitude on the matter. In a resolution of 27 October 1999, the European Parliament expressed its satisfaction that ‘the ECB acknowledged its duty of democratic accountability to the European Parliament’.45 In short, the ECB tried to utilize the European Parliament in order to consolidate its independence, while the European Parliament accepted to play the game in return for its privileged oversight role. The fact that the Annual Report should be submitted to the European Parliament sitting in plenary session confers a very formal dimension to this oversight. And a new routine of quarterly hearings of the president of the ECB before the European Parliament’s Economic and Monetary Affairs Committee has been established. These ‘exchanges of views’ in Parliament have thus become regular meetings where actors express their opinions in a polite and rather ceremonial setting. Many MEPs view ECB President Duisenberg’s style of reporting to the European Parliament as pompous and disengaged, while ECB officials often complain about the lack of expertise of the MEPs.46 It is quite revealing that, despite the clear reference to the US model among MEPs, the staging of ECB hearings is very different from the hearings of the chair of the Federal Reserve by Congress members.47 Whereas the chair of the Federal Reserve stands in the witness box and must answer questions asked by a small number of Congressmen who sit above him like judges, the president of the ECB addresses a floor of MEPs from a platform where he is seated next to the chair of the Economic and Monetary Affairs Committee. Moreover, the ECB president’s hearings only last two hours and MEPs are only allowed to ask the President two questions, which he can therefore dodge quite easily. Here again, the difference from the US situation is striking, since the chair of the Federal Reserve is subjected to a barrage of questions for as long as the people’s representatives deem necessary. As the practice of ECB hearings developed, Europe’s central bankers and elected officials have therefore progressively evolved toward a very different and in the end much more formal definition of their respective roles.

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III. THE OFFENSIVE GAME


The emergence of a modus vivendi between the ECB and the European Parliament does not mean that the actors were content to adopt a strictly defensive strategy. While respecting this modus vivendi, they have tried to gain ground thanks to the principle of accountability. On the one hand, central bankers have offered their expertise as a guarantee of neutrality in economic policy debates. On the other hand, MEPs have worked to put the decisionmaking process and actions of the ECB to the test of political debate. In this offensive game, the European Parliament has gained a few victories, but the ECB retains the advantage. The ECB: expertise as a means of impartial arbitration ECB executives have claimed the right to a ‘technical’ inspection of the economic policy decisions made by other actors in the EU. Thus, the ECB has both endeavoured to extend its sphere of technical expertise and to play down the political dimension of its recommendations. For this purpose, several offensive tactics have been used. The first one could be called pre-emptive response – the ECB avoids any criticism by answering occasionally but not overtly to some critics. The advantage of such a strategy is that it takes off some political pressure, without formally any concrete influence from other actors on the way the ECB interprets the monetary policy objectives as defined by the Treaty. Many observers have noted that the ECB interpreted its mandate in a somewhat flexible way, especially when interest rates decreased sharply in the Spring of 2000. The ECB seems to attach some importance to the ‘secondary’ objectives as such, even though this is not explicitly acknowledged as a principle of action. Likewise, the inflation rate was slightly higher than the expected 2 per cent in 2001, for the third year in a row, but that was still acceptable for the ECB since the 2 per cent inflation rate is a ‘reference value’ and may be exceeded in the short run. In private, ECB officials often concede that there might be other ways of conducting monetary policy while ensuring price stability, not only in a non-inflationary situation, but also in the face of temporary shocks like a sudden increase in oil prices.48 In such cases, the ECB is attentive to preferences expressed by political leaders, even if it does not openly admit it. The advantage of such a flexible attitude is that it relaxes political pressure, but makes it possible for the ECB to stick to its principles and to consolidate the credibility of its fight against inflation. Another offensive tactic consists in demanding certain types of economic decisions by referring to the commitments made by the member states within the framework of EU law. As the sole decision-makers in monetary policy, ECB executives claim the right to remind governments of their political promises, and especially the Growth and Stability Pact established in 1997.49 The ECB constantly urges the concerned economic policy actors to respect not only the letter but also the spirit of their commitments. Its aim is to



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ensure that member states respect the Growth and Stability Pact ‘as soon as possible’ and also take the necessary measures to carry out ‘structural reforms of labour and product markets’. Such recommendations are the response of the ECB to the occasional declarations of political leaders who advocate lower interest rates to boost growth.50 By exhorting governments to engage in fiscal discipline and structural reforms, the ECB attempts to send the ball back to the governments’ court without making any concessions on monetary policy. The third tactic is to formulate various recommendations in the name of common sense and/or political consensus. While pursuing a rather offensive approach, the ECB is careful not to trespass on the other actors’ preserve and, paradoxically, defends its prerogatives by insisting on the restrictive and limited nature of its recommendations.51 In an effort to acknowledge the respective fields of competence of each actor, central bankers do not give any precise advice and do not target any specific countries.52 The ECB usually refers to the recommendations of the European Commission or other international institutions (especially the Organization for Economic Co-operation and Development (OECD) on the topic of labour market reform), rather than give any precise and detailed list of its targets and recommendations for its objective of price stability. Likewise, when advocating structural reforms, the ECB tries to play down the potentially ideological and controversial dimension of its recommendations.53 As a whole, the ECB’s offensive remains relatively circumscribed, but it is all the more threatening for political actors that it is entirely cast in the discourse of monetary expertise. The European Parliament: transparent debate as an antidote to technocracy MEPs have not remained passive when faced with the offensive of the ECB. As the idea of democratic accountability gained ground, they were able not only to mark their territory but also to put forward a series of demands so as to carve out a political space for debating the EU’s monetary policy and other economic policies. First, they have tried to compensate for their weak means of action by taking on the role of the moral guardians of democracy. The fact is that the European Parliament has limited powers under the Treaty – especially as regards its power of sanctioning the ECB. But when confronting a central bank that aspired to the title of ‘most accountable central bank in the world’, the European Parliament found itself in a position to award or withhold democratic credentials.54 It has therefore monitored the ECB’s reporting requirements in a very serious way. That was particularly true during the process of appointing ECB Board Members, as the candidates could theoretically have been appointed without the European Parliament’s agreement. On this point, MEPs have repeatedly asked for a veto right in the appointment process.55 In fact, MEPs consider the report sessions not as mere ‘hearings’ but as opportunities to engage in real ‘monetary dialogues’ where the president of the ECB is obliged to explain his policy to the representatives


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of European citizens.56 From the perspective of MEPs, these sessions are opportunities to publicly criticize or congratulate ECB executives. As their role in the democratic control of the ECB became more widely acknowledged, MEPs have started to decree norms of monetary policy transparency in the name of ‘democratic accountability’. A resolution voted by the European Parliament in April 1998 – after the Randzio-Plath Report – demanded that the ECB determine its monetary objectives in a transparent way and that it publish the minutes of Governing Council deliberations.57 In 1999, another resolution – following the Huhne Report – asked the ECB to publish microeconomic forecasts and country-specific analyses.58 The European Parliament demands more transparency, in the name of both efficiency and democracy.59 In other words, MEPs respect the principle of central bank independence, but ask the ECB to provide criteria so that they can assess its action. MEPs have even tried to press the ECB to acknowledge – at least indirectly – the political context of its action. In particular, they have tried to convince the ECB to make commitments and clarify its interpretation of ‘secondary objectives’ under Article 105 of the Treaty.60 The chair and some members of the Economic and Monetary Affairs Committee take every opportunity to invoke the Treaty in order to justify this demand, sometimes in an abrupt way.61 Their objective is to bring to light the ‘political dimension of choices which are presented as purely technical’ in the ECB’s monetary policy strategy.62 Some MEPs have also criticized the ECB’s definition of price stability, and the chair of the Parliament’s Economic and Monetary Affairs Committee has urged the Bank to ‘re-define’ its quantitative objective of price stability, arguing that a band of 0–2 per cent inflation was an obstacle for the necessary flexibility in monetary policy.63 Lastly, the European Parliament has tried to debate monetary policy in a prospective and not only in a retrospective way. The ECB’s reports have been criticized because they were not sufficiently future-oriented.64 In short, MEPs want to transform the ECB’s reporting obligations into occasions for real deliberation, thus making the European Parliament the forum par excellence on matters of monetary policy within the broader context of European economic policies. ‘Rome was not built in a day’ 65 It would be naive to think that a lasting political balance can be achieved very quickly on the question of the ECB’s accountability in the democratic game. The results of the ECB’s and EP’s offensive tactics are mixed, even if there is a slight advantage to the ECB. The fact is that central bankers have yielded to some of the European Parliament’s pressures. After refusing to publish forecasts – for fear of inflationary risks – the president of the ECB decided in December 2000 to start publication of an ‘inflation projection’ and promised to progressively reveal the entire macroeconomic model used by the ECB. Even if the new inflation projection was accompanied by so many caveats that



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its usefulness is limited, the fact that the ECB accepted to publish it is a victory for the European Parliament, as the ECB is now complying with one of the European Parliament’s key demands for more accountability.66 Despite the limits imposed by the Treaty, the European Parliament has thus managed to bring about some change in the ECB’s attitude. Yet other demands have not been satisfied, especially the publication of the minutes of the Governing Council deliberations, which the ECB regards as ‘politically sensitive’ because of the multinational nature of the Bank. MEPs and the chair of the Economic and Monetary Affairs Committee have repeatedly come back to this problem.67 MEPs have made it clear that, in exchange for their political support of an extended definition of the Bank’s independence, they expect the ECB to widen the scope of formal obligations on which it can be held accountable.68 At the same time, the European Parliament has voluntarily restricted its demands, and accepted, for example, that the ECB did not publish the nominal results of the Governing Council votes.69 This is a good proof that the European Parliament is open to the ECB’s present arguments, even if it reserves the right to demand the publication of the minutes of the deliberations once the existence and institutional integrity of the ECB are firmly established. But there is still a deadlock concerning the definition of the ECB’s responsibility under Article 105. Every time this issue is raised, the ECB inevitably responds with its usual mantra (‘the best contribution of monetary policy is price stability’, etc.). This discourse suggests that the ECB has a restrictive interpretation of its Treaty-defined obligations to justify its actions. In contrast, central bankers do not shy away from a very broad interpretation of the Treaty when it comes to extending their field of competence. In this respect, the ECB attaches high importance to its role as technical adviser to the member governments. Central bankers try to use to their advantage the distinction that is made in Article 105 between ‘primary’ and ‘secondary’ objectives.70 According to the ECB, the ‘secondary’ objectives, as stipulated by the Treaty, do not concern its main mission, i.e. the conduct of monetary policy, but its other tasks.71 And the ECB does not hesitate to publicize its preferences in the on-going constitutional debates at the European Convention.72 In short, the ECB has put in practice the old saying that offence is the best line of defence. In the long run, the hide-and-seek game over Article 105 may evolve. The ECB’s refusal to answer MEPs’ questions on the secondary objectives may eventually become costly for central bankers in terms of political capital. But the ability of the European Parliament to bring about some change in the ECB’s attitude will also depend on the MEPs’ determination on this issue. For now, there are important ideological divisions within the European Parliament about which attitude should be adopted with the ECB, both concerning its monetary strategy and its economic policy recommendations.73 Left-leaning MEPs generally press the ECB to explain the way it is going to achieve its ‘secondary’ objectives, especially about job creation, while more conservative


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MEPs have adopted a lower profile on the matter. Since the Parliament swung to the right in June 1999, tensions have eased off between the ECB and the European Parliament. In this respect, the overall tone of the European Parliament’s resolution on the 1999 Annual Report (voted on 6 July 2000) was significantly less critical than the resolution of 27 October 1999 and, above all, than the resolution of 2 April 1998 voted by the Socialist majority of the European Parliament. Though the most recent resolution repeated key demands for more ‘transparency’ (the publication of the minutes of the Governing Council deliberations, and country-specific analyses), it no longer included the 1998 petition for a ‘coordinated economic and monetary policy’ under Article 105, nor even the 1999 request that the ECB clarify its contribution to a ‘balanced and appropriate policy mix, with a view to promoting sustainable growth and employment’. Furthermore, MEPs have in a sense lent their support to one of the ECB’s offensive tactics, especially about ‘structural reforms’. A 6 July 2000 resolution not only congratulated the ECB on its price stability policy, but also called on national governments to ‘speed up the process of structural reforms’ and to ‘achieve balanced budgets’.74 This stemmed from a relatively clear partisan logic – the right-of-the-centre majority at the European Parliament encouraged the ECB to press its case for labour and product market reforms and wage moderation, whereas left-leaning MEPs have been less worried about potential inflationary pressure.75 On the whole, a majority of MEPs have accepted the ECB’s incursions in political matters, not simply because they trust the validity of the central bankers’ technical arguments, but also because they were fundamentally in agreement with the political implications of these arguments. This contributes to explaining why the European Parliament has become somewhat less combative in demanding that central bankers behave as good democrats. Yet this situation may still considerably evolve in the future, especially if there is a new swing of majority in Parliament.76 It is therefore quite plausible that the European Parliament could adopt a more confrontational attitude toward the ECB, which would force central bankers to retrench into more defensive positions and to make more concessions. IV. THE DILEMMA OF CENTRAL BANK ACCOUNTABILITY Over the last few years, the accountability obligations of the ECB have increased in practice. The ECB now accepts being held accountable for its actions before the European Parliament. It gives more and more detailed information to justify its monetary decisions, especially inflation projections. A majority of MEPs have expressed their satisfaction with this evolution. But it is not really surprising that the ECB and the European Parliament should have come to an agreement on the rules of the accountability game, since both bodies had a clear interest in playing that game. The Treaty of Maastricht itself was primarily conceived as a constitutional way to create a single European currency under the supervision of an independent central bank, and



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not as a means to enhance democracy. After the harsh criticisms against the Maastricht process, the newly independent ECB needed to restore its image. To give lip service to the idea of accountability certainly is good public relations, but it does not mean that central bankers will readily accept a farreaching definition of their accountability. Likewise, MEPs have been keen to consolidate the European Parliament as a fully-fledged legislative body that could debate on and influence the decisions taken at the European level. Yet they have to act within the relatively restrictive framework of the Treaty and, furthermore, not all MEPs see a powerful and inflation-obsessed central bank as a bad thing. The real question, therefore, is whether the game of central bank accountability really serves democracy, or merely the interests of the various actors who play that game. It is important to realize that both hypotheses could very well be valid at the same time. The evolving debate on central bank accountability certainly represents an interesting attempt to muddle through a new democratic practice, yet it is also, and perhaps inevitably, a power play between the main actors. In a profound sense, this situation casts a new light on the problematic nature of accountability as a democratic principle. Political theorists usually define accountability as the formal requirement that actors provide convincing reasons for their policies (for recent work on this topic, see Przeworski et al. 1999; for a seminal albeit sceptical discussion of accountability as a means of political representation, see Pitkin 1967: ch. 3). But if there existed an absolutely transparent way to ensure that policies are made for the ‘right’ reasons, there would be no need to delegate monetary policy decisions to an independent central bank. As it happens, the communication between monetary experts and political authorities is necessarily difficult, since they inhabit two different worlds that are not structured around the same values and knowledge criteria.77 Furthermore, from a substantialist perspective, it is inevitable and even desirable for the public interest that the people in charge of monetary policy do their job in a flexible and sensible way, instead of mechanically implementing formal rules. What defines a ‘good’ monetary policy is somewhat debatable and cannot be reduced to the narrow fulfilment of a technically defined mandate. Yet this substantialist concept of political representation is potentially at odds with the formal principle of accountability. In sum, we are confronted with a deep dilemma – either the principle of accountability is rigidly applied, but at the risk of harming the citizens’ interests; or the principle is not so strictly applied, which could broaden the gap between the world of technical expertise and the world of political choices. The fact that Europe’s central bankers are non-elected experts and somewhat removed from domestic political arenas magnifies this accountability dilemma. The full exercise of accountability would imply that, in practical terms, central bankers’ actions could periodically be assessed and then rewarded or punished on the basis of this assessment. Accountability can thus normally work only if there is a meaningful evaluation mechanism – generally in the form of elections that give voters the opportunity of passing positive or negative judgements. In


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the case of a negative vote, the sanction is clear and immediate. The idea that accountability is gauged through democratic elections is implicit in most works of political theory on this topic. But since central bankers are not elected, there is no possible electoral sanction. Moreover, in such a highly technical domain as monetary politics, neither the general public nor even arguably its elected representatives have the necessary expertise and information to monitor central bankers’ decisions in a rigorous way. Of course, this is not the first time that experts have enjoyed such autonomy from citizens and democratically elected politicians. The principle of central bank independence only gives a legal foundation and a greater political salience to this state of affairs. Political scientists have coined the concept of ‘guardian institutions’ and conducted research on the ways and means to ensure that these bodies effectively act as ‘agents’ on behalf of their ‘principals’ (Schmitter 2000; see also Moravcsik 2002: 606).78 If the task of guardian institutions is well defined and their objectives purely technical, then there are no insurmountable obstacles a priori in delegating some powers to these bodies (Majone 1998: 122; Nye 2001: 5).79 But we may wonder whether any important object of public policy presents itself solely in terms of efficiency. By definition, such issues are quite rare – any important policy, even if it produces a net gain in social welfare, generally carries very broad distributional consequences that cannot always be compensated for. That is well exemplified by monetary policy, despite its technical nature and the apparent prevalence of efficiency considerations. It is perfectly possible to acknowledge the importance of an efficient monetary policy – i.e. one that contains inflation and achieves sufficient credibility on financial markets – without denying its political dimension. To be sure, that political dimension has decreased in so far as macroeconomic considerations can no longer be presented in terms of a stark choice between fighting inflation and pursuing full employment. Since the 1970s, most economists have stressed the importance of fighting inflation to achieve a sound and sustainable economic growth, thus lending credence to the notion of central bank independence as a way to safeguard this macroeconomic priority.80 But this reappraisal should not be taken to mean that low inflation has become an end in itself, worthy of being pursued over all other economic policy objectives. The finetuning of monetary policy remains subject to context-specific social preferences and the appreciation of contingencies, as most economic policy choices (see Freeman 2002).81 For example, the concrete definition of the ECB’s mandate remains a fundamentally political question, even if it is a taboo subject today. Does an inflation rate below 2 per cent, namely the ECB’s unilaterally chosen ‘reference value’, strictly correspond to the Treaty’s objective of ‘price stability’? This is debatable – to say the least. More generally, if the euro zone moved toward a less rigid and absolute conception of central bank independence, it would be possible to imagine an institutional design under which monetary policy would be credible on the markets while ensuring satisfactory standards of accountability.82 And the fact that price stability and central bank indepen-


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dence are given such high priority in the Maastricht Treaty must itself be understood as the output of a political process, not simply as a legal translation of economic rationality. The idea that important powers can be systematically delegated to independent ‘agent’ bodies without raising core concerns of accountability should be viewed with suspicion. In many respects, it simply amounts to a denial of, rather than a solution to, the problem of holding the agent accountable. If Europe’s central bankers were simply let off the hook, they might be tempted to take refuge in their ivory tower in Frankfurt and focus all their attention on price stability. All other things being equal, monetary officials may find this to be a more comfortable position than being exposed to the heat and turmoil of political debates. And under the current treaty framework, the ECB’s independence enables central bankers to make technical decisions that can de facto reduce political actors’ degree of freedom. In comparison, the symmetrical risk of having politicians making decisions without taking into account the advice of monetary experts is relatively less important, since the Treaty of Maastricht and the Growth and Stability Pact make ample provision for the independence of the ECB and the multilateral surveillance of government policies. Of course, in the area of monetary policy like many others, the proper border between technical imperatives and political choices is very difficult to draw. Both elements may coexist without any precise definition of the boundaries that separate them. Yet monetary policy, to the extent that it retains a political impact even in a regime of central bank independence, clearly deserves to be an object of public debate. In a sense, the very persistence of a tension between expertise and politics can actually be considered as a source of healthy democratic debate on the rationales behind policy decisions. If we agree that the oversight of decisions that have far-reaching political consequences is a desirable goal, central bankers cannot pursue their task only as competent experts without being constantly reminded of the more general impact of their decisions on the conduct of public affairs. This is why, despite its obvious limitations, the emergence of an accountability game between the ECB and the European Parliament is good for democracy. In this respect, Max Weber’s prediction that public affairs will become more complex and technical was very pessimistic. There is no question that political actors’ degree of freedom has been reduced by the legal autonomy granted to the technical sphere – i.e. in this case, the independence of the ECB. Yet principles of democratic deliberation impose certain accountability obligations, which in turn create new opportunities for public debates on societal choices. As long as experts recognize these obligations and treat them seriously, the dice of democracy are not loaded. Address for correspondence: Nicolas Jabko, CERI – Sciences Po, 56 rue Jacob, F-75006 Paris, France. Tel: ò33 1 58 71 70 33. Fax: ò33 1 58 71 70 90. email: [email protected]

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NOTES 1 According to Dyson and Featherstone’s very well-documented study of monetary union (1999): ‘The Maastricht negotiators were much more concerned with independence criteria for the central bank than with transparency and accountability criteria or with the clarity of procedural rules in the operation of the ECB’ (p. 786). On the theme of Europe’s neo-liberal policy consensus leading to a ‘depoliticization’ of monetary union, see also McNamara 1998: 174–8. 2 According to Philip Cerny, ‘decisions of monetary but also fiscal policy will probably lie beyond the reach of effective national democratic control’ (Cerny 1996: 16). 3 European Parliament Committee on Economic and Monetary Affairs, Report on Democratic Accountability in the Third Phase of EMU (alias Randzio-Plath Report), March 23, 1998, p. 10. 4 The ECB’s Annual Report for 1999 (published in September 2000) contains a chapter on ‘public information and the accountability principle’ which explicitly says that ‘in order to preserve its democratic legitimacy, an independent central bank must also be accountable’ (p. 140). 5 The UK model established in 1997 also functions as a reference, especially in relation to decision-making transparency, but its attraction remains limited in the EU context, probably because it is less entrenched in political tradition and because parliamentary oversight does not play a central role. 6 Political theorist Bernard Manin traces the concept of accountability back to an ancient Greek political practice, yet there is no direct modern equivalent to the widely used English word ‘accountability’ in many European languages. For example, a slightly awkward French translation of ‘accountability’ is the ‘rendering of accounts’ (reddition de comptes). See Manin 1997. 7 Transcripts of all ECB hearings are available on the European Parliament’s Committee on Economic and Monetary Affairs’s website: http://www.europarl.eu. int/comparl/econ/emu/default_en.htm 8 In this article, I use the new numbering of Treaty articles (as established since the Amsterdam Treaty), but the main elements of the institutional framework that governs EMU date back to the Maastricht Treaty. 9 The European Parliament’s Randzio-Plath Report is very explicit on the limits of this consultation prerogative: ‘Unlike in the United States, the nomination process does not comprise a ratification procedure. The European Parliament has no power to enforce its decision. It cannot even legally prevent a nomination. This means that the European Parliament has only a political power to assess nominees’ (p. 12). 10 See Treaty on European Union, Art. 113: ‘The ECB shall address an annual report on the activities of the ESCB [European System of Central Banks] and on the monetary policy of both the previous and current year to the European Parliament, the Council and the Commission, and also to the European Council. The President of the ECB shall present this report to the Council and to the European Parliament, which may hold a general debate on that basis. The President of the ECB and the other members of the Executive Board may, at the request of the European Parliament or on their own initiative, be heard by the competent committees of the European Parliament.’ 11 The Randzio-Plath Report uses a variety of understatements – e.g. ‘rudiments’ or the ‘embryonic form’ of accountability mandated by the Treaty – that clearly underscore the lack of stringent Treaty provisions in this area. See Randzio-Plath Report, pp. 10–11. 12 Art. 105 sets only one ‘primary objective’ for the ECB, and refers to Art. 2 for the so-called ‘secondary objectives’: ‘The primary objective of the ESCB [European System of Central Banks] shall be to maintain price stability. Without prejudice



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to the objective of price stability, the ESCB shall support the general economic policies in the Community with a view to contributing to the achievement of the objectives of the Community as laid down in Article 2.’ Art. 2 stipulates, amongst others, objectives like ‘development’, ‘sustainable and non-inflationary growth’, ‘employment’, ‘social and economic cohesion’ and ‘solidarity’. On this theme, see Marsh 1992: passim; Johnson 1998: ch. 6. See especially the Randzio-Plath Report: ‘The American system of democratic accountability is particularly highly developed, as Congress may at any time amend the legislation concerning the bank of issue, while hearings are numerous and detailed, and minutes and details of the votes taken at meetings of the bank of issue are published. Moreover, the appointment of the seven Governors of the bank of issue requires the approval of the Senate. In addition, the US bank of issue is by law responsible, through its monetary policy, for full employment and balanced economic growth’ (pp. 9–10). In 1998, the Randzio-Plath Report explained that the hearings of appointed ECB executives were ‘held in public, on the model of those in the American Senate’ (p. 12); concerning the publication of the minutes of the central bank’s board meetings, the Report remarked that ‘the US bank of issue has adopted a practice worthy of emulation which reconciles the need for the bank of issue to be independent with the need for openness of decision-making’ (p. 14). The following year, the Huhne Report demanded (inter alia) that the ECB publish reports on the economic evolution of each euro area country, following the model of the US Federal Reserve’s Beige Books on the economic situation in each of the fifty states. ECB Council officials have repeatedly expressed this line: ‘Precisely because the ECB was assigned a narrow and specific mandate, it is democratically legitimate and economically appropriate to preserve its independence from the normal political process. And in the last analysis, precisely for this reason, its accountability can and must be founded mainly, if not exclusively, on its observable successes or failures in the fulfilment of its mandate’ (Issing 1999: 517); ‘Accountable for what? The answer is simple: the Eurosystem must be accountable for the task of fulfilling its mandate’ (Padoa-Schioppa 2000: 29). ‘Regarding democratic responsibility, I think that we have undertaken to do what the Treaty requires us to do, which is to ensure price stability. So if we have an inflation rate of less than 2 per cent in the medium term, we realize that that is the basis on which we will be judged. Either we succeed in delivering that or we don’t, and people can criticize us for not maintaining price stability’ (Hearing of C. Noyer, vice president of the BCE, European Parliament, 27 September 1999, p. 5). In a press conference given on 8 May 2003, ECB officials somewhat redefined their ‘reference value’ as a rate of consumer price inflation ‘close to 2 per cent’ – thus signalling that the lower band of 0 per cent would be considered as potentially deflationary and therefore detrimental to normal economic growth. Yet the figure of 2 per cent remained the same and ECB officials described the revision of their monetary strategy as a mere ‘clarification’, rather than a substantive change. Press conference given by W.F. Duisenberg, Frankfurt, 13 October 1998. The ECB’s ‘strategy’ is articulated around three elements: a quantitative definition of price stability (with a ‘reference value’ of 2 per cent), and two ‘pillars’ designed to ‘structure information’. The two pillars are, first, the conditions of monetary liquidity, assessed in relation to a ‘reference value’ of 4.5 per cent and, secondly, the euro area’s growth prospects, as they appear through a series of economic indicators. ‘[W]e decided to base part of our strategy on what we call a reference value, and explicitly not on a target for monetary growth and explicitly not on a very narrow definition of the monetary aggregate . . . it has taken us months to find the words I may tell you, the words ‘‘reference value’’ . . . It is then a matter of, admittedly


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subjective, judgment by all members of the Governing Council whether these figures in themselves would add to the fear that inflation might be on the rise again’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 19 April 1999, questions, p. 5). ‘There is no way that one can compare these two pillars in one being large and the other one being small. It is a matter of judgment, of assessment, what weight you give to developments under the one and under the other, every time’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 5 March 2001, questions, p. 6). 21 ECB president Duisenberg himself recognizes that this creates the impression of a litany: ‘We did say repeatedly that we think that the best contribution that monetary policy can make to the growth of output and employment is . . . the absence of inflation. That is the best contribution we can make’ (Hearing of W. F. Duisenberg, president of the ECB, European Parliament, 20 March 2000, questions, p. 5). ‘Ultimately, we are strongly convinced that, it sounds like a slogan, but we are deadly serious about it. The best contribution that monetary policy can deliver to the development of the real economy is to create a climate of stable prices over the longer term’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 June 2000, questions, p. 12). ‘We remain exclusively committed to maintaining, over the medium term, price stability inside the euro area . . . I think, and I know I am repeating myself, that the most important contribution that the ECB can make, also in the current circumstances, is to reassure the public at large, and that is the world, that we will maintain price stability, thereby contributing to the best of our ability to a rate of growth’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 5 March 2001, questions, pp. 5–7). 22 ‘I would warn against the reasoning that now that we have achieved price stability with a certain level of interest rates, we should change track and focus on other things, in the interest of economic policy in general. Our aim is not only to have price stability but also to maintain it. That is explicitly in our mandate’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 18 January 1999, questions, p. 14). ‘We don’t just look at inflation but we are compelled to look, in a forward looking manner, at inflation in a very intensive way because of our primary mandate derived from the Treaty which is to preserve price stability. All other objectives are, so to speak, subservient to that primary objective’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 March 2000, questions, p. 4). ‘We pursue our secondary objective every day, Madam Chairman . . . No monetary policy action to specifically influence growth could come without paying the price that we would not reach our primary objective and, therefore, you cannot and you should not expect us to do more than what we are doing, namely, maintain price stability, thereby creating the best possible conditions for economic growth’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 5 March 2001, questions, p. 12). ‘What I know is that we are explicitly in charge of maintaining price stability as our primary and unique objective . . . From my viewpoint, there is no need to reform the treaties. I work within the framework of the treaties as they exist, as they have been ratified by all of Europe’s parliaments – this is the constitution we have for the ECB. The Treaty gives us the unique mission, the primary mission to pursue price stability’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 5 March 2001, questions, pp. 5 and 30). 23 Katiforis (ESP): ‘As we now have a Convention which can propose to change the Statute of the Central Bank, would it be a good idea to propose changing the Statute, to make the Bank’s mission similar to that of the Federal Reserve Bank? That is to say to give equal weight to monetary policy, stability, growth, and employment.’ Duisenberg: ‘The answer is no. The primary goal of the mandate



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the ECB received is price stability over the medium term. Without prejudice to price stability, the ECB also contributes to attaining the goals of the European Union as laid down in Article 2 of the Treaty: full employment, maximum economic growth, and even equitable income distribution. How the ECB could contribute to that escapes me, but there it is . . . The only thing that monetary policy can achieve credibly is price stability over the medium term’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 17 February 2003, p. 10). Be´re`s (ESP): ‘Very often we compare [the ECB’s democratic accountability] with that of the Federal Reserve vis-a`-vis Congress . . . What would you propose to substantively improve the quality of your democratic accountability within the framework of European institutions, or do you consider that everything is perfect and that, above all, the Convention should do nothing?’ Duisenberg (ECB): ‘Politically speaking, I do not think there is much difference in the degree of accountability vis-a`-vis the Parliaments of the countries or the areas involved’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 17 February 2003, pp. 12–13). Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 18 January 1999, p. 10. ‘The ECB is always prepared to have a dialogue, be it with Parliament or with ministers. However, the ECB shall never be involved in ex-ante co-ordination before policy measures are taken. Why not? Because it would mean that you negotiate a certain policy mix of fiscal and monetary policies which could compromise the mandate of the ECB’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 17 February 2003, pp. 17–18). Interview at the ECB. European Parliament resolution on democratic accountability in the third phase of EMU, 2 April 1998, p. 1. ‘It can be discussed whether the definition of price stability should have been determined by a political process, but given that it is the ECB’s prerogative, the degree of political independence is shown very clearly. This fact, on the other hand, increases the need for democratic accountability’ (Randzio-Plath 2000: 8). Interviews at the European Parliament. The chair of the European Parliament Committee on Economic and Monetary Affairs never misses an opportunity to reassert this parliamentary claim to democratic legitimacy. See, for example Randzio-Plath 2000. European Parliament resolution on democratic accountability in the third phase of EMU, 2 April 1998, p. 2. Interviews at the European Parliament. According to several interviews at the ECB, some members of the ECB Governing Council are particularly attached to this conception, including Jean-Claude Trichet, the governor of the French central bank. According to Otmar Issing, ‘the ECB can already be considered as the most transparent and accountable central bank in the world’ (Issing 1999: 505). ‘The objective of the ESCB’s external communication policy is to increase the transparency and clarity of these objectives . . . and to contribute to the Eurosystem’s accountability obligation. The BCE communicates information through a series of mediums, especially by way of communique´s or press conferences . . . speeches by members of the Governing Council and through various publications’ (ECB Annual Report for 1998, p. 13). ‘The EMI/ECB also intensified its dialogue with the European Parliament . . . [The hearings at the European Parliament] express the ECB’s concern with openness and transparency in fulfilling its monetary policy function’ (ECB Annual Report for 1998, p. 98). ‘I regard the dialogue with the European Parliament as extremely important, but we also have a dialogue with other bodies which I regard also as extremely

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important’ (Hearing of W.F. Duisenberg, 19 April 1999, questions, p. 19). ‘The channels for accountability of the ECB defined by the Treaty are the reporting requirements to the European Parliament, the Council of Ministers and the Commission, which take the form of an annual report and quarterly reports’ (Speech by Otmar Issing, member of the ECB Executive Board, 25 October 1999). ‘But one thing is certain, the ECB will never participate or take part in an ex-ante co-ordination of policies . . . which could jeopardize our primary objective, our mandate, to preserve price stability’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 June 2000, p. 27). See also Padoa-Schioppa 2000: 29. ‘The ECB not only has in terms of democratic accountability and transparency to my mind extremely intensive contacts with the European Parliament, but also with the public at large, also with governments and also . . . we are actively engaging in developing a dialogue with the social partners’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 18 January 1999, p. 16). For example, the Randzio-Plath Report expressed a regret that ‘certain governments’ opened up a ‘form of public controversy [that] was counterproductive and fuelled public mistrust as to the independence of ECB Presidents’ (p. 12). ‘[The Parliament] regrets that some members of the Council have been reported as suggesting a limit on the ECB’s discretion to pursue price stability by raising the possibility of either general orientations for exchange rate policy or even adherence to a formal exchange rate system.’ See European Parliament resolution on the annual report for 1998 of the European Central Bank, 27 October 1999, p. 3. President Duisenberg and other ECB officials have often come out in favour of accountability vis-a`-vis several actors. Duisenberg initially said that ‘the European Central Bank is fully independent, but also fully accountable to Parliament, Ministers and the public’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 June 2000, questions, p. 17). By contrast, PadoaSchioppa was more inclined to recognize a privileged role for the European Parliament: ‘the Eurosystem is, in the broadest sense, accountable to European citizens in general . . . In the European Union’s political order, the only institution that directly holds its role and legitimacy from the citizens is the European Parliament . . . This is why accountability is exercised, first and foremost, vis-a`-vis the European Parliament, and the dialogue between the ECB and the European Parliament represents the main means of exercising accountability’ (Padoa-Schioppa 2000: 30). ‘The European Parliament is the only institution made up with officials directly elected by the European citizens and, consequently, plays a crucial role – the ECB must be accountable to the Parliament for the conduct of monetary policy . . . In this sense, the relations between the ECB and the European Parliament must be considered as more than a simple statutory requirement’ (ECB Monthly Bulletin, October 2000, p. 54). The ECB Monthly Bulletin of November 2002 contains the first detailed statement of the ECB position on accountability (pp. 45–59). In particular, it acknowledges the ‘particularly prominent role’ of the European Parliament as ‘the only European institution made up of directly elected representatives of the citizens’ (p. 45), thus essentially taking up the line of the European Parliament’s Committee on Economic and Monetary Affairs. ECB Monthly Bulletin, October 2000, p. 54. European Parliament resolution on the annual report for 1998 of the European Central Bank, 27 October 1999, p. 2. Interviews at the European Parliament and at the ECB. According to several interviews at the European Parliament, this situation – which


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many MEPs find deplorable – stems from the European Parliament’s lesser prestige and authority as compared to the US Congress, but also from the procedural rules of parliamentary committee hearings and the reticence of rank-and-file MEPs to the idea of changing the status quo. Interview at the ECB. ‘First of all, whatever you may think of the Stability and Growth Pact, the main thrust behind it and the thinking behind it is the solemn declaration of the participating countries to, over the medium term, strive for a budget that is either in balance or shows a small surplus’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 June 2000, questions, p. 29). ‘Policy-makers should re-inspire confidence amongst consumers and investors . . . I do not believe the answer is to be found either in monetary or in fiscal policy. You could find an answer in governments finally embarking on ambitious structural reform programmes all across the euro area’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 8 October 2002, p. 9). ‘[T]he independent Eurosystem is not in a position to ‘‘do more’’ [to support growth and employment]. If it followed the unfortunate demands to actively promote short-term growth, for example through an expansive monetary policy, the Eurosystem would be forced to make an essentially political decision. Any illadvised politicization of the central bank would actually weaken the very foundation of its independence’ (Padoa-Schioppa 2000: 28). ‘We try to avoid being too specific also on recommendations for specific measures for specific countries because we think it is not up to us to say to the government, ‘‘look you have got to do this, you have got to propose such and such a bill to your parliament and such and such a reform to your social partners’’; I think that oversteps our responsibility. I think we have to remain more in the realm of the general’ (Hearing of C. Noyer, vice president of the ECB, European Parliament, 27 September 1999, p. 12). ‘I have to be very careful as central banker not to exceed my areas of competence’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 March 2000, questions, p. 21). ‘There exists today a broad consensus, also at the level of governments, on the fact that the currently favourable growth prospects in the euro area would be further improved by deeper structural reforms in the euro zone’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 March 2000, questions, p. 4). ‘I am not only talking about wages. I am talking to both social partners, employers and unions. I am talking to governments when I talk about budget deficits . . . I do not think in any way that my advice is lopsided to any part of society’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 5 March 2001, questions, p. 14). ‘The European Parliament, as representative of European citizens, is considered the appropriate interlocutor of the ECB. However, much remains to be done in order to implement a true accountability. The simple fact of providing information to the European Parliament is not enough – the information that is being given must also be clear and complete’ (Randzio-Plath 2000: 21). ‘A candidate who fails to convince the European Parliament should be considered unacceptable. Consequently, the current procedure for appointing ECB Board Members is important, but it can only be a transitional stage’ (Randzio-Plath 2000: 13). See also European Parliament resolution on democratic accountability in the third phase of EMU, 2 April 1998. ‘It is crucial to note that the point of having meetings between the ECB and the European Parliament is not to hold hearings, but to conduct a regular monetary dialogue in which the representatives of the European citizens can debate with the president of the ECB’ (Randzio-Plath 2000: 22).


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57 See European Parliament resolution on democratic accountability in the third phase of EMU, 2 April 1998. 58 European Parliament resolution on the annual report for 1998 of the European Central Bank, 27 October 1999. 59 ‘Not to reveal the analysis that led to monetary policy decisions could lead to the suspicion that the ECB wants to withhold this information from the public eye’ (Randzio-Plath 2000: 15). 60 In its resolution of 27 October 1999, the European Parliament ‘considers it necessary, in the interest of transparency and credibility, for the ESCB to make clear how monetary policy is intended, as long as the objective of price stability is maintained, to contribute to a balanced and appropriate policy mix, with a view to promoting sustainable growth and employment’. 61 ‘When is the ECB going to make clear how it interprets Article 105 and the secondary objective of the ECB?’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 March 2000, questions, p. 5). ‘Your main mission, we all agree, is to uphold price stability. Article 105 also says that, without prejudice to that objective, the European Central Bank must support the Union’s general economic policy . . . with all due respect, you have just repeated for the umpteenth time your credo . . . It is not enough to say that by fighting inflation you are making adequate contribution to the other tasks required of you under the Treaty’ (Hearing of W.F. Duisenberg, ECB president, European Parliament, 28 May 2000, questions, p. 4). 62 Interview at the European Parliament. 63 Randzio-Plath 2000: 10. 64 ‘In general, the first monthly reports [of the ECB] provide key data and the general reasoning underlying monetary policy decisions. They have nonetheless proved to be insufficiently detailed, since they focus only on past events’ (RandzioPlath 2000: 15). ‘Yet democratic accountability is not an ex-post exercise, since the ECB’s work is oriented toward the future. In order to understand the ECB’s decision-making process, it is important to have discussions and explanations sufficiently early, for example on international monetary stability, on the future member states of EMU, or on the ECB’s contribution to economic growth’ (Randzio-Plath 2000: 22). 65 Interview with a member of the European Parliament. 66 C. Randzio-Plath: ‘Mr President, we’re told that we can expect a pre-Christmas present from you in the form of future inflation forecasts, but we hope of course that that will be the first step towards a proper Christmas present, because, of course, the European Parliament has been asking for at least four years for these inflation forecasts to be made available earlier to the European Parliament’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 23 November 2000, questions, p. 1). 67 Mrs Randzio-Plath: ‘Do you think there will be new thinking in the ECB concerning the publication of the minutes?’ . . . Mr Duisenberg: ‘Well, the answer I have given already many times, and that answer is no, Madame Chair.’ Mrs Randzio-Plath: ‘Well that’s a question I’m going to have to keep on putting until I have a different answer I think’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 18 January 1999, p. 21). 68 ‘We won’t tire of seeking the arguments for monetary policy decisions. We won’t tire of asking for the publishing of minutes in the long term . . . it is good that the ECB is entering into economic co-operation and co-ordination, even if it doesn’t have any formal position as such in this area, but it will be important that your policy can be reckoned with and we can understand it’ (Comment by Mrs Randzio-Plath, hearing of W.F. Duisenberg, president of the ECB, European Parliament, 5 March 2001, questions, p. 27).



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69 Interview at the European Parliament. 70 ‘What gives me the right to express myself on the need for structural reforms? I would say very simply that the Treaty gives me this right since, as Mrs RandzioPlath often reminds us, we have a secondary objective . . . Well, the promotion of growth and employment can only be effective if, in all the countries, governments and social partners implement structural reforms’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 March 2000, p. 23). Interviews at the ECB. 71 ‘Beyond the ECB’s accountability for its primary objective, the Eurosystem must also be accountable for the way in which it fulfils its other tasks. In particular through the dialogue with the European Parliament, the ECB was called to explain its actions and decisions, inter alia, on the topic of payment systems, the conception and manufacturing of euros, etc.’ (Padoa-Schioppa 2000: 29). 72 ‘As far as the Convention is concerned, we follow the work very closely. We are not ourselves a member of or part of the Convention, but we will not hesitate to give advice on certain issues, whether asked or not, if relevant changes are being contemplated’ (Hearing of W.F. Duisenberg, president of the ECB, European Parliament, 21 May 2002, p. 12). 73 Interviews at the European Parliament. 74 In its Annual Report for 2000 published in May 2001 (p. 174), the ECB did not miss the opportunity of claiming an increasing level of support from the European Parliament on this issue, as it appeared especially in the resolution of 6 July 2000. 75 Example of a statement by an MEP who belongs to the European Socialist Party (left-leaning): ‘you refuse to say anything in detail about what you mean by structural reform but every time you are asked a question you say we have to be careful about inflation, we have to reduce deficits so you have a view of these structural reforms which are very liberal. You do not take employment into account much as a priority, quality of life, public services and its budgetary costs so allow me to be provocative, I do apologize, what gives you the right to judge those Governments who were directly elected in this way?’ (question from Mr Ge´rard Caudron during the hearing of W.F. Duisenberg, president of the ECB, European Parliament, 20 March 2000, p. 22). Example of a statement that came from an MEP of the European People’s Party (conservative): ‘I thought listening to his introductory statement I had a very clear idea of the message that was coming from the Bank, that is that there were imperfections in inflexible market structures within the Euro zone area, that there was a need for continued wage moderation, that there needed to be, as he described it, substantial and sustained action taken and accompanying comprehensive structural reform to increase flexibility in labour and product markets and more decisive methods, he said, to break with deeply rooted habits and alleged acquired rights’ (statement by Mr Jonathan Evans during the Hearing of C. Noyer, vice president of the ECB, European Parliament, 27 September 1999, p. 17). 76 Interviews with members of the European Parliament’s Socialist Group (ESP). 77 This fits with the Weberian distinction between formal rationality, which is the mode of scientific and technical discourse, and substantial rationality, which carries political values. See also Habermas 1969. 78 Drawing from an idea developed by Robert Dahl, Philippe Schmitter developed the idea of ‘guardianship’ specifically in relation to the ECB: ‘Democratic theorists are reluctant to admit it, but every democracy in the world depends on the presence of non-democratic institutions that have all the authority to deal with specific questions on a confidential basis, so that they escape from the direct control of elected officials and the general public. Robert Dahl offered the word ‘‘guardianship’’ as a label for this increasing trend.’ Echoing this argument, Andrew Moravcsik called delegation of powers to guardian institutions ‘a fact of life’.


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79 For example, Giandomenico Majone thinks the ‘solution’ to the accountability problem does not necessarily presuppose a strengthening of Parliamentary democracy: ‘In practice . . . it has always been agreed that relying on qualities such as expertise, professionalism, policy continuity, or impartiality, is in many respects more important than direct political responsibility.’ Likewise, Joseph Nye elaborated the idea of ‘indirect accountability’ of central bankers, which would be ensured by a ‘long chain of delegation [of powers]’ and ‘professional norms and standards’. 80 For a series of articles that take up this now conventional argument in favour of central bank independence in the name of social welfare, see the recent special issue of International Organization on ‘The political economy of monetary institutions’, 56(4) (Fall 2002). 81 As John Freeman puts it in his introduction to the recent special issue of International Organization on central banking, ‘consensus with respect to the goals of monetary institution may be a false perception’. This raises the possibility that the widespread support for central bank independence alias ‘monetary technocracy’ among political economists actually indicates a ‘crisis of imagination in institutional design’. For recent work that follows this line of reasoning (cited by Freeman), see Scheve 2004. See also Jon Elster’s recent critical discussion of central bank independence, in which he openly questions his previous conception of this and other constitutional provisions as efficient and democratically legitimate ‘precommitment devices’ (Elster 2000: 150–74). 82 See Stasavage 2003 for an argument that reconciles monetary policy credibility with a degree of democratic accountability, but on the condition that central bank independence ceases to be an absolute principle.

REFERENCES Berman, Sheri, and McNamara, Kathleen R. (1999) ‘Bank on democracy: why central banks need public oversight’, Foreign Affairs 78(2): 2–8 (March/April). Buiter, William (1999) ‘Alice in Euroland’, Journal of Common Market Studies 37(2): 181–209. Cerny, Philip (1999) ‘Globalization and the erosion of democracy’, European Journal of Political Research 36(1): 1–26. Cohen, Benjamin J. (1998) The Geography of Money, Ithaca: Cornell University Press. Dyson, Kenneth and Featherstone, Kevin (1999) The Road to Maastricht: Negotiating Economic and Monetary Union, Oxford: Oxford University Press. Eijffinger, Sylvester C.W. and DeHaan, Jakob (1996) ‘The political economy of central bank independence’, Princeton Special Papers in International Economics, no. 19 (May). Elgie, Robert (1998) ‘Democratic accountability and central bank independence historical and contemporary, national and European perspectives’, West European Politics 21(3): 53–65. Elster, Jon (2000) Ulysses Unbound, Cambridge: Cambridge University Press. Freeman, John R. (2002) ‘Competing commitments: technocracy and democracy in the design of monetary institutions’, International Organization 56(4): 889–910. Habermas, Ju¨ rgen (1969) Technik und Wissentschaft als Ideologie, Frankfurt: Suhrkamp. Issing, Otmar (1999) ‘The eurosystem: transparent and accountable or ‘‘Willem in Euroland’’ ’, Journal of Common Market Studies 37(3): 503–19. Johnson, Peter A. (1998) The Government of Money, Ithaca: Cornell University Press. McNamara, Kathleen R. (1998) The Currency of Ideas: Monetary Politics in the European Union, Ithaca: Cornell University Press. Magnette, Paul (2000) ‘Toward ‘‘accountable independence’’? Parliamentary controls of the European Central Bank and the rise of a new democratic model’, European Law Journal 6(4): 326–40.



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Majone, Giandomenico (1998) ‘State, market, and regulatory competition in the European Union’, in Andrew Moravcsik (ed.), Centralization or Fragmentation?, New York: Council of Foreign Relations. Manin, Bernard (1997) Principles of Representative Government, Cambridge: Cambridge University Press. Mannheim, Karl (1946) Ideology and Utopia, New York: Harcourt, Brace & Co. Marsh, David (1992) The Bundesbank: The Bank That Rules Europe, London: William Heinemann. Moravcsik, Andrew (2002) ‘In defence of the ‘‘democratic deficit’’: reassessing legitimacy in the European Union’, Journal of Common Market Studies 40(4): 603–24. Nye, Joseph S. (2001) ‘Globalization’s democratic deficit’, Foreign Affairs 80(4) (July/ August). Padoa-Schioppa, Tommaso (2000) ‘An institutional glossary of the eurosystem’, ZEI Policy Paper B 16. Pitkin, Hanna F. (1967) The Concept of Representation, Berkeley: University of California Press. Przeworski, Adam, Stokes, Susan C. and Manin, Bernard (eds) (1999) Democracy, Accountability, and Representation, Cambridge: Cambridge University Press. Randzio-Plath, Christa (2000) ‘A new culture in the EU: democratic accountability of the ECB’, ZEI Policy Paper B 16. Sassen, Saskia (1996) Losing Control? Sovereignty in an Age of Globalization, New York: Columbia University Press. Scharpf, Fritz W. (1999) Governing in Europe: Effective and Democratic?, Oxford: Oxford University Press. Scheve, Kenneth (2004) ‘Public inflation aversion and the political economic of macroeconomic policymaking’, International Organization (forthcoming). Schmitter, Philippe C. (2000) How to Democratize the European Union – And Why Bother?, Oxford: Rowman & Littlefield. Stasavage, David (2003) ‘Transparency, democratic accountability, and the economic consequences of monetary institutions’, American Journal of Political Science, forthcoming. Verdun, Amy (1998) ‘The institutional design of EMU: a democratic deficit?’, Journal of Public Policy 2 (May–August): 107–32. Weber, Max (1968) Economy and Society, New York: Bedminster Press.



The European Court of Justice and democratic control in the European Union Olivier Costa

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CERVL , Bordeaux, France Published online: 04 Feb 2011.

To cite this article: Olivier Costa (2003) The European Court of Justice and democratic control in the European Union, Journal of European Public Policy, 10:5, 740-761, DOI: 10.1080/1350176032000124069 To link to this article: http://dx.doi.org/10.1080/1350176032000124069



The European Court of Justice and democratic control in the European Union


Olivier Costa

ABSTRACT From a legal point of view, European integration concerned the citizens at a very early stage. This explains why law specialists have always tended to deny the fact that there would be any democratic deficit in the EU. They underline the various legal ways the Court of Justice can be asked by any member state or private individual to pass a judgment over the legality of acts adopted by the EC, and even to challenge some of the decisions made by its institutions. However, such researchers do not propose much quantitative or qualitative analysis of individual direct litigation. The aim of this article is to go beyond legal reasoning and to assess the concrete possibilities for citizens to go to the Court. The analysis reveals a great asymmetry between the capacity of European citizens to resort to European law and shows that the impact of the ECJ on the democratization of the EU is, at least in that respect, marginal. KEY WORDS Citizenship; democracy; European Court of Justice; judicial integration; litigation.

When the founding fathers created the European Community (EC), they set up a hybrid institutional system based on the intertwining of several logics and objectives. The rule of law was to ensure coherence and efficiency, to further European integration, to be the Community’s common language and to regulate inter-institutional relationships. Thus the European Court of Justice (ECJ), with the task of interpreting and implementing EC law, has played a key role from the start. It has also given rise to conflicting interpretations and opinions. Some political actors and specialists, among the most fervent adversaries of supranational integration, denounced the ‘drifts’ in the ECJ’s jurisprudence and the very ‘free’ way judges interpreted the Treaties to serve the objective of European construction, ensure the independence of its institutions and enforce Community law (Alter and Meunier-Aitsahalia 1994). Judges were accused of openly promoting European integration with no consideration for the still existing nation-states and the opinions of the actors most concerned, i.e. citizens. Conversely, the most fervent supporters of European integration Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124069


O. Costa: The ECJ and democratic control in the EU

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immediately opposed such an accusation of ‘judicial activism’ and insisted on the prominent part played by the ECJ in the incorporation of EC doctrines into domestic constitutions, and the respect of their obligations by member states and economic actors arising out of the Treaties. They also credited the ECJ with the ‘democratization’ of the EC’s institutional system – notably through the strengthening of the European Parliament’s prerogatives and influence – and the recognition of citizens’ new rights. The controversy over the merits and shortcomings of the ECJ1 has somewhat abated in recent years (Mattli and Slaughter 1998; Alter 1998). The significant contribution and impact of the ECJ’s judgments are no longer a matter of contention, all the more so as the Court’s decisions have not been as ‘dramatic’ as in the past. The numerous debates and reports about the future of the Union and the reform of its institutions in the late 1990s have not addressed the question of a reform of the ECJ’s legal capacity and working methods. On the contrary, the ECJ is now seen as a resource and a base for further progress in European integration or, conversely, as an instrument to check its excesses. However that may be, the Court is one of the pillars of the European Union (EU)2 not only guaranteeing the respect of Community law but also ensuring the mutual limitation of the powers of its actors – Community institutions, national governments and individuals. The Court is not the only authority that investigates the disputes which divide these actors but it gives opinions which are often binding in the last resort, and thus contributes to some form of ‘mutual checks and balances’. In answer to those who denounce the Union’s ‘democratic deficit’ the champions of European integration have put forward the various legal ways the Court can be asked by any member state or private individual to make a judgment over the legality of acts adopted by the Community, and even to contest some of the decisions made by its institutions. The ECJ pronounced very early on on the federal character of the Community legal system and insisted on its implications for European citizens. Among other things, it has ruled that they were directly and individually involved in the Union’s legal norms and could benefit from them. As early as 1963, in the Van Gend en Loos judgment,3 the judges ruled that ‘Community law creates rights for citizens which national courts must recognize and enforce’, thus linking the objective of the defence of individual rights with the enforcement of Community law by national courts. Judges and most Community law specialists have argued that the possibilities for individual citizens to invoke Community law in national courts and the Court’s ‘bold’ rulings point out the specific contribution and crucial role of the ECJ, not only in the promotion of European integration but also in the level of satisfaction of European citizens with the way the ECJ has been working.4 According to these actors and authors, the Court partially makes up the democratic deficit and e´litism that affect the European political system by preserving institutional equilibriums and the fundamental rights of the citizens, and by offering them the possibility to contest Community decisions that infringe on them directly.


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The abundant literature on the subject is focused on the legal possibilities for European citizens to go to court, on the contents of legal judgments and the overall logic of the judicial system. However, it does not propose any quantitative or qualitative analysis of direct litigation.5 Consequently, we think it useful to study such a subject with the tools of political science and go beyond legal reasoning and the letter of Treaties. As in every analysis of the Union’s political system (Duprat 1996), it is not necessary to make any excessive distinction between politics and law that should be envisaged as a political or economic instrument. It should not be overlooked either that the EU integration process is entirely based on this instrumental legal logic which makes it possible to account for inter-institutional relationships and to understand the interactions of the political system with its environment. That is the reason why following indiscriminately the Court’s reasoning and ruling, and considering the EC as a complete and coherent legal system that protects individual rights and interests, amount to stating that European citizens are close to the European political system, which is far from being proved by facts. We thus intend to assess the concrete possibilities for citizens to go to the Court of Justice, and more particularly to study who brings actions and how judges react to such interventions. In so doing the contribution of the ECJ to the defence of individual interests and its capacity to check the Union’s policymaking can be evaluated. PRIVATE INDIVIDUALS AND THE COMMUNITY LEGAL SYSTEM: THEORY AND PRACTICE The ‘opening’ of the Community Court and the legitimacy of the Union The Union is not in constant contact with the citizens: its legitimacy is still essentially procedural and cross-systemic. Nor is it endowed with ‘substantial’ legitimacy; the capacity of the Union to redistribute resources is limited and secretive and there is little ‘utilitarian’ support for political institutions.6 The attempts to justify the system through citizens’ involvement have not been successful either – there has been an increasingly low level of turnout in European elections, which are in fact mainly centred on national political issues. European institutions have tried to diversify the ways and means of citizens’ participation by undertaking European-wide opinion polls and creating a ‘European civil dialogue’, but the ordinary citizen does not feel much concerned. To take up David Easton’s systems theory,7 the Union is a political system that finds it difficult to create links with its citizens through outputs (public policies, redistribution) and inputs (participation, opinion polls, ‘public opinion’). That situation has urged the actors of the Union and the champions of European integration to recommend the diversification of internal auditing procedures and incited them to underline the involvement of private individuals in such control through the ‘EU citizenship’ principle acknowledged by the


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Court. It is true that the ECJ’s decisions are given more and more coverage and have increasing impact on the daily activities of citizens and economic and social actors. Over the last few years, there have been many examples – the 1995 Bosman judgment deeply transformed the world of team sports; the condemnation of Volkswagen the car manufacturer (2000) emphasized the principle of the free movement of goods; the repeal of the Directive on tobacco advertising (2000) is a good illustration of the Court’s contribution to the respect of the prerogatives of member states and of the principle of subsidiarity. However, though citizens are becoming more aware of the important role played by Community law, little is known about their perception of their rights to litigation. And what about the ‘right to go to court’ presented as a priority by the ECJ? In public, Community judges insist on their deep concern for European citizens.9 Like their counterparts in the European Court of Human Rights (ECHR), they consider that the ‘right to go to court’ is a fundamental element in the rule of law and even a fundamental right of EU citizens. In order to ensure the effectiveness of citizens’ rights based on Community law, the ECJ laid down the principle that member states should implement procedures that cannot be less favourable to individuals than those in their national legislation (the ‘equal treatment’ principle) and must be readily accessible (the ‘effectiveness’ principle) (Dutheil de la Roche`re 2001). The legal protection of private individuals is extensive since it concerns all the rights derived from Community law and not only the ‘civil rights’ as in the ECHR case law. The approach is the same in the brochure entitled ‘Your questions on the ECJ’10 destined for the general public. The contribution of the Court to citizens’ well-being and defence of their rights is presented – from all points of view – as one of the Court’s primary missions. The short brochure states that ‘Community law concerns citizens in their everyday activities’ and ‘the ECJ, in its task of interpreting and enforcing Community law, takes into consideration the citizens’ concerns in their everyday activities’. It specifies that ‘citizens may go to the ECJ or the CFI through two legal processes’ – one indirect (preliminary action) and the other direct (direct action). The document also insists on the various possibilities offered to the Union’s citizens – legal aid, free appeals, the possibility of using any of the Union’s official languages in legal matters. Complex and narrow legal procedures The analysis of the concrete possibilities for individuals to go to the ECJ or the CFI shows that there are considerable variations between natural and legal persons according to their means and knowledge of the system. Whether for direct actions (actions for annulment, failure to act or for damages brought by persons against the Community, competition proceedings, European Coal and Steel Community (ECSC) cases and disputes between the Community and its officials . . .) or preliminary actions, the study of the jurisprudence and of the


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identity of the litigants shows that legal procedures benefit only limited categories of actors. Specialized Community law firms, which bring most of the direct actions in Luxembourg, say that their clients are mainly European multinationals or large interest groups. Judges and chief clerks agree with this fact but point out that many actions are also brought by small businesses, farmers or individual companies without the assistance of such law firms. More precisely, although the ECJ has established jurisprudence in order to set up a complete legal system based on the rule of law,11 its efforts have been more limited for private individuals than for institutions. As early as 1957, the European Economic Community (EEC) Treaty provided for proceedings for annulment against acts by institutions with decision-making powers, modelled on the French actions ultra vires. However, it established a very clear hierarchy between litigants. Under Article 230, any member state, the European Parliament,12 the Council or the Commission – as privileged litigants – can bring an action to the ECJ either on the grounds of lack of competence, or because of an infringement of the Treaty or procedural requirement. In contrast, the Court of Auditors and the European Central Bank belong to a second category and can only bring actions to protect their own prerogatives. Finally, citizens can bring actions against a decision by the Union’s institutions which is of direct concern to them. It is not within the scope of this article to examine in detail the complexity and intricacy of the jurisprudence on the subject.13 Nevertheless, it must be stressed that judges have mainly focused their attention on the interpretation of the collective or individual nature of the disputed acts and established a very restrictive case law. Although there is more flexibility today, it is still confined to three areas – competition, anti-dumping measures and state aids. On these subjects, the ECJ stated that private individuals can be concerned by measures (even legislative measures) and therefore be entitled to bring action to the Court. In the Codorniu judgment (1994),14 the ECJ stated that cases brought by individuals did not necessarily have to concern individual decisions. However, such a statement was reached only after a bitter debate within the Court between the proponents and opponents of greater possibilities offered to individuals to bring action to the ECJ, and in an unusual context which was not free from economic considerations (according to the judges we interviewed on the point). The ECJ’s jurisprudence has notably evolved in a more restrictive way following the appointment of new judges.15 In addition, the CFI, which took over the cases some time later, was not very keen to give effect to the Codorniu judgment and often referred to the previous jurisprudence.16 Although this judgment apparently heralded the Court’s declining tendency to protect systematically the Union’s institutions against individual actions (Carvalho Montinho de Almeida 1995), it has not brought about the expected opening. Private individuals have indeed other possibilities of litigation but they seldom use them.17 There is still today a persistent cleavage between the theoretical individual rights granted by EU integration and the rights that private individuals can actually benefit from.



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For all that, the Union cannot be denied its status of ‘legal community’. As early as 1963, individuals benefited from a very liberal interpretation of the principle of non-discrimination.18 Likewise, the ECJ ruled that the direct effect of Community law meant that individual citizens could invoke it and had rights that must be upheld by national courts. The ECJ has also encouraged national courts to bypass the Commission – which has the monopoly of bringing an action on the grounds of lack of competence – by using the preliminary references procedure to highlight the cases when national rights are not compatible with Community law. The ECJ and CFI jurisprudence has thus contributed to reaffirming citizens’ rights on three accounts – the protection of fundamental rights, the right of access to information and the principle of subsidiarity. Judges have favoured individuals’ access to Community judicial protection, but it is essentially delegated to national courts and cannot be considered as an instrument of control of EU politics and decisions by individuals. EUROPEAN CITIZENS’ ACCESS TO THE COURT: A PRACTICAL APPROACH Unequal access to the Community judicial system Analysis of private litigants reveals strong disparities as regards their nationalities. If this factor is related to the respective populations of the European states, litigants from Belgium, Greece and The Netherlands are much more numerous than in Spain, Portugal, the UK and Italy, which can be explained by the type of action brought and the various national judicial traditions. However, the criterion of the social classes of litigants is also an important element – in Northern Europe, big firms tend to bring actions on their own behalf, whereas in Southern Europe individuals are more concerned. In Greece, Italy and Spain, there is a discrepancy between the number of actions and the number of litigants concerned because small farmers and fishermen tend to resort to collective actions. In short, four types of actor can be distinguished, falling into relatively coherent categories of actions. In the first type, collective actions are brought by many actors who share the same interests, for example Mediterranean farmers and fishermen. The second category deals with actions on a single case over a long period of time – they are often brought by firms in the same sector of activity which try to make member states take the necessary measures to comply with the judgments of the ECJ. Third, there is the category of actions repeatedly brought by a single litigant in order to force a Community institution to give in, or as part of a long-term strategy of which legal action is only an element. The last category is made up of limited and individual appeals against sanctions brought by farmers, physical persons and firms. The preliminary references procedure too is used differently by member states, even if automatic action minimizes such contrasts. If we relate the data given by the ECJ to the respective populations of each state, the average


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number of actions per annum and per capita varies by a factor of twenty between the citizens who use them least (France) and those who use them most (Luxembourg). Numerous factors may explain these national contrasts. As direct actions are the last judicial resort that can be used by litigants when all national legal ways are exhausted, they tend to be used according to the characteristics of each national judicial system. As regards the preliminary references procedure, national differences are partly explained by the type of national courts in charge of the cases (constitutional courts, with the exception of Belgium’s Conciliation Court, do not bring actions), by their attitude towards Community law and by the quality of the citizens’ protection guaranteed by national legislation. Broadly speaking, the member states’ judicial and political traditions strictly condition the perception which citizens have of the benefit they may have in going to the Court. Contrary to some states like Germany with a strong tradition of using legal ways to contest the decisions of the authorities, and great confidence in the legal protection of citizens’ rights, in other countries like France, lobbying of the political process is preferred to legal action. As regards firms, Christopher Harding points out that the behaviour of company managers in legal matters is closely linked to their profiles which vary greatly from one state to another (Harding 1992: 106). Given that the ECJ jurisprudence on the possibilities of litigation by individuals varies according to Community policies, which do not homogeneously concern the Union, it stands to reason that there should be geographic contrasts.19 Finally, the level of knowledge of the litigants, their lawyers and judges on the possibilities of litigation is also a determining factor. By way of proof, citizens from Belgium and Luxembourg tend to use preliminary references procedures massively – the presence of EU institutions in Brussels and Luxembourg undoubtedly makes them more sensitive to the legal opportunities offered by EU integration and facilitates such legal processes. It is also significant that Community law has been taught in both countries’ faculties of law since the 1950s. In addition to the national differences, there are deep contrasts between citizens in their access to the ECJ, according to their financial means and knowledge of the legal system. This may also be linked to the litigant’s different strategies and points out the close connection between their motivations and the type of action chosen. By going to the Court, individuals aim not only to have their rights acknowledged but may also seek to influence a Community policy or obtain the modification of national regulations (Alter 2000). The obscurity of some Community law provisions – in the letter or in their interpretation – and the ‘bold’ jurisprudence of the Court encourage such strategies. For instance, actions can be brought to claim for substantial damages from a state that has not complied with Community law (Barnard 1995). Finally, such direct actions may be used as a pretext for great legal battles – through ‘remarks’ made to the Court – opposing directly or indirectly member states or EU institutions (Dehousse 1999). It is notably the case when judges are asked to rule over the compatibility of national laws with Community law.


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Preliminary actions are also used strategically. When Community regulations seem more favourable than national ones, private individuals can bring an action to their national courts and ask them to act on their behalf. Even if this process does not imply a direct intervention of the Court in the case at hand, it enables plaintiffs to hope that possible infringements of Community law will be denounced (Dehousse 2000). Preliminary action must therefore be considered as a means for EU citizens to defend their rights but also as a means for them to participate in the governance process of the Union.


A typology of direct action litigants The ECJ and CFI case laws, together with the strategic dimension of direct actions explain why Community courts have mainly to deal with very specific categories of actors. It is particularly the case for the litigants who bring actions for annulment. Here again, three types of litigant can be found. The first type is composed of the most powerful interest groups and large firms which have the necessary means to follow the regular production of regulations by the Union and the member states. They can go to court whatever the complexity, cost, duration and even outcome of the case. Proceedings are particularly long with an average length in March 2000 of nineteen months for direct actions (ECJ 2000). Moreover, diverging conclusions by the CFI and the ECJ increasingly encourage plaintiffs to contest first instance decisions and rulings – in December 1999, appeals were lodged in 40 per cent of direct action cases20 with an average length of twenty-two months. Direct actions to the CFI are particularly risky. In 1999, out of 227 judgments (attached questions not included), the CFI ruled that only twenty-three cases were fully or partially justified. Preliminary references procedures take time too – about twenty-four months on average in 2000. The average length of proceedings and the small chance of success explain why big lobbies and firms make up a high proportion of litigants. Legal costs are also a dissuasive element. It is, for example, essential to resort to a specialist lawyer at a cost of up to 2,500 euro for a single case. For more complex cases, like a dispute over a new regulation or an action for annulment which has never been examined by the CFI, experts have to be consulted. Proceedings essentially consist in abundant exchanges of very detailed reports. For competition cases such documents are often more than a hundred pages long and grow in number – petitions, reports for the defence, plaintiff ’s response, possible interventions by other actors concerned, response to these interventions, reports about various points of law. A complex case may eventually cost more than 150,000 euro in lawyer’s fees. In a non-suit, a plaintiff may be condemned to pay costs up to 100,000 euro in important cases. However, judges take into consideration the individual’s financial status and bona fides, together with the degree of responsibility of the institution concerned – with the notable exception of unjustified and openly dilatory cases about which judges are now very strict.


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Unlike private individuals and small businesses who may be discouraged by the length, cost and risks of a direct action, such is not the case for big firms and powerful lobbies. The fact that they can meet the expenses and other related constraints is not a sufficient explanation, as their criteria of success in a legal case probably include other objectives than just a favourable judgment (Galanter 1974). They may try, for example, to trigger a public debate to support other lobbying actions in order to change a policy or modify a regulation, or even help to create an abundant jurisprudence to influence and alter the interpretation of some Community regulations. The second category is made up of actors from well-defined social classes. They may not necessarily have the financial or legal resources but are motivated by favourable precedents concerning individuals in similar situations. They are therefore well informed about the legal possibilities offered to them. Analysis of CFI jurisprudence shows that each year actors belonging to specific social and economic groups bring actions on the grounds of case law precedents or exceptional situations with regard to Community law. This has recently been the case for winegrowers from Southern European countries, and Dutch small garage owners, milk producers, customs officials and petrol station managers.21 Even if plaintiffs have restricted financial means and are more familiar with the intricacies of Community law, they are aware of the opportunities offered by such types of action. Trade unions and private interest groups often play a key role in the drawing-up of ‘standardized’ files which make up the majority of actions brought by these actors. In spite of their insufficient financial means, they have acquired the necessary collective expertise in Community law that enables them to ‘invest’ any ‘breach’ opened by an ECJ or CFI judgment. The third category of plaintiffs is composed of private individuals. They are few in number22 considering the constraints in terms of cost and time, as explained before. European civil servants excluded, the number of actions brought by individuals is of the order of a few dozen per annum, compared to the 8,396 cases in the ECHR in 1999. European judges point out that decisions by Community institutions rarely concern individuals in particular, who therefore have few reasons to go to court. However, we should note that in the areas where conditions of admissibility of direct actions by individuals have been made more flexible by judges, individuals have taken full advantage of such opportunities. But judges have been reluctant to accept direct actions from citizens in disputes over Community law concerning individual rights. Since 1998, it has notably been the case with the principle of ‘free movement of persons’ which has prompted the Court to evoke the principle of ‘citizenship of the Union’.23 So far, judges have proved very wary and done nothing to encourage European citizens to invoke their rights and go to the Court. We must add that those few litigants belong to an e´lite, a privileged minority of citizens who are fully aware of the legal possibilities and live in the European microcosm. The Court has set up a complete system of legal aid24 – insolvent litigants may not be condemned to pay costs even in a non-suit, provided they can prove their bona fides. However, such legal facilities do not compensate



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for the poor access to information for individuals and lawyers not specialized in Community law. The present dispute over the access to documents of the Council and the Commission is a good proof of it. Actions are mainly brought by journalists25 and political personalities, and the number of Members of the European Parliament (MEPs) who bring direct actions or use the preliminary references procedure is a striking element in that respect.26 The relative presence of actors familiar with the subtleties of Community law has not only to do with their expertise but also with their motivations. Just as big firms can resort to legal strategies whatever the duration, cost and outcome of the proceedings, individuals who go to the Court often have other motivations than the annulment of an act. It may be part of a political strategy. French Euro-sceptic MEP Georges Berthu, a member of the Europe of Nations group, asked for the annulment of the Treaty on European Union (TEU) on the grounds that it infringed on the sovereignty of the French Republic.27 Likewise, he tried to oppose the introduction of the euro.28 In both cases, he certainly did not have many illusions as to the legal outcome of his actions. The Court’s jurisprudence on the access to documents and the free movement of persons clearly shows that the individuals concerned mainly seek to contest the principles or denounce cases of misadministration. More broadly speaking, what they really contest is the way the Union’s institutional system works. Finally, let us mention two other types of litigant. The first ones may be called ‘quibblers’ whose legal actions often deal with questions which have nothing to do with the competence of the Court or the Union. Such actions are often examined very quickly by judges who do not want to act as ‘Justices of the Peace’ or exhaust the resources of the institutions for unfounded cases. The second group is composed of ‘figureheads’ acting on behalf of professional organizations, consumer associations or lobbies which seek to multiply actions in order to influence the jurisprudence but cannot do so because of the restrictive attitude of the Court on the subject.29 THE PERSPECTIVES OF EU INTEGRATION AND CITIZENS’ ACCESS TO THE COURT At the heart of the possibilities for individuals to bring an action to the ECJ in order to defend their rights or influence the way the Union’s political system works is a double contradiction. On the one hand, the Court judges’ views on citizens’ actions conflict with their jurisprudence and preoccupations with the future of the European legal system, which, on the other hand, are in opposition to the ambitions of member state representatives about European citizens’ access to Community law. The Court’s jurisprudence and priorities There is a discrepancy between the views expressed by ECJ judges and officials on the contribution of their institution to the defence of public interest and


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the respect for democratic principles by the Union’s legal system, and their recent preoccupation with the reform of the legal capacity and working methods of the Court. In spite of its demands for better access to justice in national legislation and in spite of its official defence of citizens’ rights and interests, the problem of the relationship between the EU political and legal system and EU citizens – as well as the problem of their supranational legal guarantees – is not addressed in the recent Green Paper on the future of the ECJ.30 The documents show that the main objective of judges and experts is to preserve and improve the way the Court works while asserting the supremacy of the Community legal system over national law and constitutions (Ronse and Waelbroeck 2000). Emphasis is thus laid on the fundamental stakes attached to the reform of the Court. The structural disequilibrium between the number of cases brought before the Court and its capacities must be addressed. The workload of the ECJ will increase dramatically because of the substantial extension of its legal competence under the Treaties of Amsterdam and Nice, the conventions for police and judicial co-operation in criminal matters, the growing role played by Community regulations in the everyday life of citizens and firms, and the enlargement of the Union. The Treaty of Nice has partially attained this objective by adopting a reform of the Community judicial system meant to simplify and speed up the way the Court works.31 The judges also give priority to pragmatism and functional efficiency in the internal organization of the ECJ and the CFI. They have obtained several measures from the Council – without waiting for the reform of the Treaties – in order to institute the principle of a single judge in the CFI, the transfer of some ECJ competence to the CFI and a hierarchy of cases according to their complexity and degree of urgency. The CFI has also obtained the right to revise its regulations and has used this new possibility to speed up proceedings through a series of modifications.32 Such reforms have had consequences for individuals as they favour efficiency and rapidity in decision-making, over the rights of the litigants to defend their cases. Both the ECJ and the CFI share the same philosophy when they invite litigants to contribute to ‘quick and efficient’ proceedings and limit the length and complexity of their reports and speeches in court.33 In all the ECJ texts, projects and reports, there is never any mention of the terms ‘citizens’ or ‘individuals’.34 Such lack of interest sheds new light on the considerable gap that exists between the concrete possibilities for private litigants to go to court, and the Court’s demands. We would be tempted to say that, though judges have recognized a right to legal protection for the Union’s citizens, their main objective has been to establish an efficient and coherent system in the Union, and guarantee the supremacy of Community law. Restricted access to the Court: a thing of the past? Hard pressed as it is by its heavy caseload, the Court seems to have given priority to functional efficiency and rapidity in decision-making over its will



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to be the guarantor of the fundamental rights of the Union’s citizens. Many commentators, however, had proposed an opposite interpretation to a Court decision (opinion 2/94), which ruled that it would be unconstitutional for the Union to sign the Convention of Human Rights without preliminary revisions of the Treaties.35 The most experienced academic lawyers had also considered that the Court wanted to overstep the purely economic limits of its jurisdiction and become an active and autonomous actor in the field of human rights. But the Court’s jurisprudence and reasoning have proved them wrong. Nevertheless, the prospect of the introduction of a ‘double standard’ in matters of the defence of human rights36 has been confirmed on two accounts. First, the Treaty of Amsterdam stated that ‘the Union is founded on the principles of liberty, democracy, respect for human rights which are upheld by the Member States’ (Article 6). Far from being purely symbolic, this declaration broke with the previous situation which seemingly implied that the guarantee of fundamental rights in the Union was the prime responsibility of the member states and the Council of Europe only. Standards in respect of human rights have suffered from the rapid enlargement of the Council of Europe to countries where the human rights situation is still problematic (Croatia, Russia, Ukraine). In order to fight against any drift, the Treaty of Amsterdam reaffirmed the values of the Union and established a mechanism to sanction any ‘serious and persistent infringement by a Member State of the principles as stated in Article 6’ (Article 7). The written and formal translation of the founding principles of the Union has also been guided by the evolving relationships between Community and national courts. As there was greater demand for better protection of fundamental rights in Western Europe, Community law could not possibly remain an exception. In a judgment about the Treaty of Maastricht, the German Constitutional Court denounced the limits of a political system which was not based on democratic norms and restricted access to justice for individuals (Gerkrath 1996). The influence of national courts is not new – the conditional acceptance of Community law supremacy by national courts (as in Germany and Italy) was based on the respect of fundamental rights by the ECJ. Unlike the Treaty of Maastricht, the Treaty of Amsterdam was not simply an aggiornamento meant to incorporate ECJ jurisprudence, but opened up considerable possibilities of evolution (Quermonne 1999: 96). The definition of the Union as ‘an area of freedom, security and justice’ was an invitation for the ECJ to be fully responsible for the protection of fundamental rights within a single judicial area. The possible introduction of a ‘double standard’ in the defence of human rights was confirmed by a decision by the Cologne European Council to begin work on drafting a ‘catalogue’ of fundamental rights in the Union. Many drafters of the Charter hoped that the Court would become the prime court in charge of the protection of individual rights in the Union thanks to the incorporation of the Charter in the Treaties. But at the Nice Summit, member states refused to make the Charter a binding document both at Union and


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national level. Therefore, the Court’s judges can refer to some provisions of the Charter but until it is transposed into law it will probably be invoked only in conformity with the original definition of human rights in Community law as interpreted by the judges. As already explained, the Court seems more preoccupied by the preservation of its legal capacities than by the extension of them. The improvement in relationships between the ECJ and the ECHR is the best illustration that priority is being given to better functional methods of working in the Court (Simon 2001). Recent developments in the Treaties and the ambitions of member states to establish a European area of justice conflict with the persistent restrictions on individual access to the ECJ. The Court’s arguments are less and less convincing though, and very few judges still openly refer to them (Dashwood 1996: 308– 11). As shown by the study of the Court’s jurisprudence and various interviews with judges, five main reasons are usually called upon to support the Court’s policy. First, we may cite the specific legal order of the Community. Because of the absence of distinction between ‘law’ and ‘regulation’, giving citizens a right to control Community regulations (as defined in the TEU) would amount to enabling them to start a constitutionality control process.37 There are very few member states in which citizens are not obliged to use the preliminary references procedure to contest legal acts. Secondly, the Court points out that the Community rarely enforces its legislation directly and that in most cases individual rights are guaranteed by national courts and can only be contested at national level. Thirdly, the preliminary references procedure is used by the national courts in their own judgments on the cases at hand. Fourthly, the Court refers to the letter of the Treaties and contends that it is not its role to unilaterally open the Court more freely to individual litigants. Finally, the ECJ asserts that European citizens have few reasons to bring actions today because Community law mainly deals with economic matters. Citizens’ active participation is still embryonic in Community legal disputes but it is bound to develop along with the strengthening of European citizenship and new policies in favour of individual rights. The arguments used by the ECJ and the CFI hardly stand up to careful analysis. The argument of national law sovereignty is not acceptable as there are more and more cases in which Community law directly concerns individuals. We may also note an increase in the number of cases in which both national and Community courts say they are legally unqualified because of the existence of Community law for the former and domestic laws for the latter. Moreover, only national courts use the preliminary references procedure for their national citizens, which is a source of considerable differences between states. Lastly, the Court has repeatedly ignored the letter of the Treaties, notably when it entitled the European Parliament to bring actions.38 Besides the ECJ and CFI judgments on European citizenship show that Community judges are reluctant to encourage private litigants to claim for the enforcement of Community law. According to most specialists,39 the individual’s restricted access to Commun-



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ity Courts illustrates the paradox of the Union’s political system which is based on the rule of law but provides for no judicial control – except under excessively restrictive conditions – on the activities of its legislative and executive institutions. They also point out that Community institutions take more and more measures – and impose sanctions – which are directly enforceable, with no intervention from national courts. In such cases, the ‘right to go to court’ is not guaranteed. Two solutions are often put forward: the first would be the adhesion of the Community to the European Convention on Human Rights; the second would consist in making explicit reference to fundamental rights and facilitate direct litigation in the Court. Some specialists even advocate closer co-operation of European citizens in the Union’s decisionmaking process through legal means, and consider the possibility of bringing direct actions to the ECJ as a fundamental right and an essential part of European citizenship (Vandersanden 1994, 1995). How can we therefore explain the persistent behaviour of the Court? Some judges admit that their positions are not only motivated by legal rationale but also by functional constraints. We have already mentioned their concern about maintaining efficient methods of working. We must add that the ECJ judges are no longer all pro-Europeans whose activism would have been ‘genetically’ transmitted by the drafters of the European Treaties (Mancini and Keeling 1994: 186; 2000). The judges are career magistrates who favour a ‘legalformalism’ approach and stick to the letter of the Treaties. This is particularly true of the CFI and partly explains the discrepancies between its jurisprudence and the ECJ’s about conditions of access to direct litigation.40 There may also be political and strategic motivations. The restrictive jurisprudence of the judges must be analysed as reflecting the conception they have of their relationships with the other Community institutions and of the role of the Court in the Union’s political system. Their rationale is not necessarily one of ‘judicial activism’.41 It is no longer possible, as was the case in the 1960s and the 1970s, to claim that the Court’s jurisprudence is motivated by a desire for more integration and governance at the European level. Some researchers think that the drafters of the Treaty of Rome incorporated a ‘genetic code’ in the Treaty, which made it possible for the Court to uphold a federal interpretation of European integration (Mancini and Keeling 1994: 186). This jurisprudence may just as well be ‘self-restraint’, which can be explained by several reasons. First, the political context has a significant impact on the judges’ decisions – the fact that there was little public support for the European construction process in the early 1990s has not incited the ECJ judges to make bold decisions. Secondly – because of institutional constraints – judges seek ‘consensus’ within the Court (there are no provisions for judges in the minority to register dissenting opinions, as is the case with the ECHR). Thirdly, the Community judges want some kind of ‘exclusivity’ – in spite of its workload and lack of decentralized means in member states, the Court still wants to be the single ‘interlocutor’ of litigants or at least the institution which makes the final decision. That is why it has deliberately


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restricted conditions of access to the Court for direct litigation. The judges defend – more or less openly – a model in which the CFI would act as an appellate court for national courts. The ECJ and the CFI abstain from passing any judgment on such matters and limit the retroactivity of some judgments of annulment in order to prevent the multiplication of such actions. They even re-examine previous rulings when they think they have been at the origin of too many cases (Dehousse 1999). The ECJ judges’ jurisprudence may not be explained by their pursuit of power for the sake of power – contrary to many national courts – but rather by their desire to ensure the coherence of Community law and serve the objectives of the EU Treaties. The key role played by Community law in European integration has incited judges to privilege the preservation of the Court’s jurisdiction. In that respect limited access to direct litigation by individuals is of paramount importance. It helps to strengthen Community law and prevents too many citizens from challenging more and more decisions. It also wards off any accusation against the ECJ of ‘government by judges’. CONCLUSIONS The ‘right to go to court’ is particularly limited for natural persons, so limited that in a speech on 20 May 2001, French Prime Minister Lionel Jospin declared that ‘the Union’s citizens should be able to submit their cases directly to the Court of Justice, under certain conditions’, implying that such was not the case. More broadly speaking, we must remember that national courts are in charge of implementing Community law. We should also note the increase in the number of non-judicial actions brought by individuals to defend their rights – direct complaints forwarded to the Commission, to the European Ombudsman, the right to petition the European Parliament, access to Community institution documents. Moreover, individuals who cannot bring actions to the ECJ, or are non-suited, can now turn to the ECHR.42 However, such proceedings lack efficiency and are not implemented in an egalitarian way. The various legal ways for European citizens to defend their rights and interests are complex and confusing. They are not devoid of incoherence and may even lead to denial of justice (de Bechillon 2001). Does it mean that European citizens have been left out of the Union’s legal system? It may be excessive to say so but the Court defends fundamental rights in an indirect way, through standards at the Union level that national courts must comply with. The ECJ seems to consider that broader dissemination of the Court’s jurisprudence and the principle of supremacy of Community law over national law contribute more to democracy in the Union and better protection of fundamental rights than easier access to the Court. The judges and clerks who we interviewed considered that the role of the ECJ was to give ‘landmark’ judgments rather than hear individual cases. One judge even said that he was pleased that ECJ and CFI jurisprudence should be more publicized and concern big firms ‘known to everyone’.43



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It is significant that the Court should have created a press relations and communication division with considerable means. It not only passes judgments but makes its decisions public and available through press releases. Its rulings can be found translated into every official language of the Union on the Web site of the Court. It has also multiplied initiatives – just like the Commission and the Parliament – to arouse citizens’ interest and inform them regularly about their rights. In the same vein, we should mention the organization of training sessions for national judges in the ECJ. To quote a CFI auditor: ‘Community law only exists if it is known. It is original and complex. National judges and lawyers should know about it, and, more widely, citizens and economic actors too.’ 44 Such initiatives may also be understood as part of a more global strategy aimed at giving the ECJ more ‘substantial’ legitimacy by insisting on the ‘benefits’ for the Union’s citizens of the activities and jurisprudence of the Court. The fact is that its jurisprudence on the protection of fundamental rights is considerable. It has ruled that these rights were part of the general principles of law which it intended to enforce (Bribosia 2000). It is influenced by the constitutional traditions shared by all member states and by the ‘instructions’ from the institutions which are in charge of the protection of human rights, such as the ECHR.45 Since the TEU was signed, the Court has often mentioned Article F.2 (new Article 6), which refers to this convention.46 However, the exact nature of these rights is still obscure, even for the most experienced law specialists. Though the adoption of the Charter of Fundamental Rights at the Nice Summit (December 2000) is a first decisive step, it remains an essentially political text which brings no real clarification. There is therefore a strong discrepancy between the restrictive attitude of the CFI which limits possibilities of bringing direct actions to a privileged minority, and the ambitions of the member states which consider law and access to law as essential to further legitimacy and democracy in the Union. The affirmation in the Treaty of Amsterdam that the Union is ‘founded’ on democratic principles commands a new interpretation of the institutional architecture of the Union’s objectives and working methods. It is bound to further the legal protection of European citizens. The Treaty also reinforces the principle of non-discrimination based on sex, racial or ethnic origin, religion or belief. The future setting-up of an area of freedom, security and justice for more effective action against ‘organized crime’ will logically imply the development of an embryonic Community criminal law and the creation of Community police and judicial institutions (de Kerchove and Weyembergh 2000). Such an evolution would challenge the present legal system (Jacque´ 1999), which is based on co-operation between Community and national courts. The ECJ would therefore be transformed into a Constitutional Court or a Supreme Court. It would indeed be confirmed in its restrictive attitude as regards direct litigation but the Union’s citizens would benefit from new possibilities of legal action against Community decisions in national or ad hoc

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courts, together with new possibilities of being directly indicted by Community criminal courts – which may not be an advantage. Today the possibilities for individuals, notably European citizens, to be heard by Community Courts and to interact with the Union’s political system, are limited. The Union’s legal system is considered by the Court’s judges as the ‘guardian’ of the respect of Community law in order to further European integration, but not as a means for citizens to be involved in the governance of the Union, or to be protected from excesses from Community institutions. Legal practice and judges’ opinions lend little credit to the possible advent of a ‘judicial democracy’ which would go beyond the mere judicialization of European politics. Address for correspondence: Olivier Costa, Institut d’Etudes Politiques de Bordeaux, 33607 Pessac Cedex, France, Tel: 33 5 56 84 41 93. email: [email protected] NOTES 1 In a decision on 24 October 1988, the Council created the Court of First Instance (CFI) in order to help the ECJ to cope with the extremely large volume of cases. Among other tasks, the CFI deals with direct actions brought by individuals who can appeal against its decisions to the ECJ. According to the Treaties and from a budgetary point of view, the CFI is not an institution independent from the ECJ (Gautron 1995). So, the generic term ‘Court’ will be used throughout this article. 2 For an analysis of the Court’s contribution to European integration, see Dehousse 1998; Stone Sweet and Caporaso 1998; Mattli and Slaughter 1998. 3 Case C-26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963, ECR 1. 4 Judge G.F. Mancini (see Mancini and Keeling 1994, 2000) was one of the main promoters of this idea. 5 With the notable exception of C. Harding (1992). 6 The programmes conducted thanks to the structural funds are largely publicized in lagging regions and may influence citizens in their support of the project of European integration. The Eurobarometer polls and the turnover figures for the European elections give interesting clues on the subject. Without taking up the caricatural vision of the ‘consumer-citizen’, we have observed that there are very unstable levels of support for integration and that this support is more directed toward a precise sector of action than toward the Union’s political system as a whole. In another context, David Easton (1975) has made a distinction between the diffuse support of citizens for a government – which is linked to their adhesion to the political system – and the specific support – which concerns their perception of a policy or a utilitarian benefit. The failure of the referendum on the ratification of the Treaty of Nice in Ireland, on 8 June 2001, may not be alien to this phenomenon of differentiation between the affective support of citizens for some Union policies (notably the structural policy) and the more specific support of European integration. 7 Easton 1965. For the application of the systemic approach to the EU, see Scharpf 1999. 8 This situation has incited the drafters of the Treaty of Maastricht to incorporate the following formula in the article about citizenship of the Union: ‘Citizens of


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the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby’ (Article 17 §2 TEC)). See Magnette 1999. During a one-day conference organized on 19 October 1999 for the celebration of the tenth anniversary of the Court of First Instance, one of the subjects debated was devoted to the judicial protection of citizens. ECJ, ‘Your questions on the European Court of Justice’, Luxembourg, 1999, ref. DX-23-99-823-EN-D. Many books on the jurisprudence of the Court clarify this point (Arnull 1999; Lasok 1994; Simon 1999). Since the entry into force of the Nice Treaty. See Nihoul 1994. For updated analysis destined for non-lawyers, see Costa 2002; Magnette 2003. Codorniu judgment (Codorniu SA v. Council), Case 309/89, 1994, ECR I-1853. Before the end of the year when the judgment was passed (1994), four judges left the ECJ and three new judges from the new member states took office at the beginning of 1995. This vision is shared by several auditors and civil servants of the ECJ and the CFI. Some authors have diverging opinions, though. For instance, Georges Vandersanden says that ‘the jurisprudence of the CFI shows that, while strictly abiding by the restrictive interpretation of these notions [direct and individual interest] by the Court of Justice, it has tried its best to adopt a more flexible attitude as regards the admissibility of actions brought by individuals.’ Nevertheless, he adds that ‘this jurisprudence, though not incoherent, is not always homogeneous and it may prove difficult to reconcile several judgments without a careful analysis of the specific facts and the procedure used’ (Vandersanden 2000: 111–12). Our translation. Actions brought on grounds of infringement of the Treaty (Article 232 EEC), lack of jurisdiction (Article 241 EEC), appeals against sanctions related to the application of some acts (Article 229 EEC), actions for damages (Articles 235 and 288 EEC), actions to contest state aids (Article 88.2 EEC). Case C-26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963, ECR 1. The figures in the Court’s annual report about the subject matter of direct actions brought by individuals show the much ‘segmented’ nature of the jurisprudence. In 1999, actions mainly concerned (in decreasing order): convergence of legislations, freedom of establishment and to provide services, taxation, agriculture, competition, the environment, staff regulations, free movement of goods (ECJ 1999: 226). Only there were actions brought against 31 per cent of the CFI decisions that could be appealed in late December 1998, and 25 per cent in 1997. In 1999, out of fifty-seven actions, the Court quashed eight judgments of the CFI. The milk producers, who have brought actions against decisions of the Commission since the beginning of the 1990s, also initiated 190 cases in 1998 and 88 in 1999. As the ECJ and CFI do not make any distinction between natural and legal persons in their data, it is difficult to give exact figures. It is, however, possible to distinguish between the two categories of litigants through the mentions ‘residing in’ for physical persons and ‘set up in’ for legal persons in the wording of the Courts’ judgments. See Case C-85/96 Martinez Sala (12 May 1998) ECR I-2691; Case C-378/97 Wijsenbeek (21 September 1999) ECR I-6207. Article 76 in the Rules of Procedure of the Court provides for free legal aid, for which there is a limited budget. If a party is ‘wholly or in part unable to meet the costs of the proceedings’, it may apply for legal aid at any time. ‘If the application is made prior to proceedings which the applicant wishes to commence, it shall briefly state the subject of such proceedings. The application need not be made

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25 26

27 28 29


30

31

32 33 34

35 36 37

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through a lawyer.’ ‘In its decision as to costs the Court may order the payment to the cashier of the Court of the whole or any part of amounts advanced as legal aid.’ See Svenska Journalistfo¨rbundet v. Council, T-174/95, 17 June 1998, R II-2289. The Wijsenbeek judgment is the result of a preliminary ruling, in a procedure against an MEP who had refused to show his passport and prove his Dutch nationality when he returned to the Netherlands after a session in Strasbourg. See also Hautala v. Commission, T-14/98, 19 July 1999, R II-2489. Case T-207/97 Berthu v. Commission, 12 March 1998, R II-0509. Case T-175/96 Berthu v. Commission, 15 May 1997, R II-811. The authors often refer to the Defrenne judgment (C-80/70 and 43/75). A plaintiff was chosen by feminist groups to bring an action, though she was not really concerned by the case (Harlow and Rawlings 1992). ECJ, ‘The Future of the Judicial System of the European Union: Proposals and Reflections’, submitted to the Council of Justice Ministers, 27/28 May 1999; ‘Proposals submitted by the ECJ and the CFI with regard to the new intellectual property cases’, 2000. See also Puissochet 2001. According to the Treaty of Nice, ‘the Court of Justice shall consist of one judge per Member State’, but shall then be composed of several groups. It ‘shall sit in chambers’ (composed of three to five judges), ‘in a Grand Chamber’ (composed of eleven judges) or ‘as a full Court’. ‘The Council, acting unanimously, may increase the number of Advocates-General.’ The Treaty also extends the CFI jurisdiction, notably in cases for damages. It creates judicial panels to hear and determine at first instance certain classes of action. A decision establishes the rapid creation of a judicial panel to hear and determine at first instance disputes between the Community and its staff. Official Journal L 322, 19 December 2000. See the ‘Notes for the Guidance of Counsel at the Hearing of Oral Argument’ and the ‘Note for the presentation and drafting of pleadings’, ECJ Web site (www.curia.eu.int). The terms ‘citizen’ and ‘individual’ do not exist in the rules and regulations governing the procedure of the Court. There is only one mention of the term ‘individual’ in Article 104§6 about the possibility of judicial aid by the Court. The official expression is ‘person’ and rules of procedure only introduce the distinction between ‘natural’ and ‘legal’ person in one instance. ECJ, Opinion 2/94 (28 March 1996), ECR I-1763. See Flauss 1997; Wachsmann 1996. This expression comes from Denys Simon (2001). See also Constantinesco (1999). The protection of individual rights is one of the elements which have nurtured the preparation of a new category of acts – ‘Community law’. This process was initiated in the European Parliament, during the drafting of the Treaty of the Union adopted on 14 February 1984 (the Spinelli project). The issue was raised again during the negotiations on the Union – in the absence of any consensus, the drafters of the Treaty of Maastricht only invited the next intergovernmental conference to consider the introduction of a hierarchy of Community norms (Declaration no. 16). As we know, there was no concrete result. The Court has progressively acknowledged the right of the European Parliament to bring various types of action, though Treaties make no provisions for that. It has also obtained that member states follow its reasoning and modify Article 173 EEC during the drafting of the Treaty of Maastricht. It is the case in most Community law books and monographs on the ECJ (Vandersanden 1995; Dutheil de la Roche`re 2001). On this point, the Quermonne report is explicit: ‘The system of actions for annulment against regulations is much criticised today as individuals can only bring such actions under very restrictive conditions because they must prove that they are directly and personally concerned


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41 42 43 44 45 46

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by a regulation. In fact only institutions and Member States can contest regulations. Such a situation which restricts the legal protection of individuals is not acceptable’ (Quermonne 1999: 116). Author’s emphasis, our translation. In 1998, the Court quashed four decisions by the CFI which had deemed inadmissible four actions for annulment brought by companies against some Commission decisions, on the grounds that the plaintiffs were not directly concerned. Case Dreyfus v. Commission, C-386/96 P. ECR I-2309; Case Compagnie Continentale (France) v. Commission, C-391/96 P, ECR I-2377; Case Glencore Grain v. Commission, C-403/96 P, ECR I-2405 and C-404/96 P, ECR I-2435. For a critical analysis of the improper use of this notion, see Keeling 1998. The ECHR has recently acknowledged the admissibility of an appeal against the fifteen member states of the Union. Socie´te´ Gue´rin Automobiles v. the fifteen Members States, 4 July 2000. Interview with a CFI judge, Luxembourg, 17 October 2000. Interview with a CFI auditor, Luxembourg, 17 October 2000. Johnston judgment (15 May 1986), C-222/84, ECR 1651–18; Kremzow judgment (29 May 1997), C-229/95, ECR I-2629–14. ‘The Union respects the fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Rights, signed in Rome on 4 November 1950 . . .’. See Case May-Melnhof Kartongesellschaft v. Commission, T-347/94, 14 May 1998, ECR II-1751.

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Auditing and accountability in the European Union Brigid Laffan

a

a

Department of Politics , University College Dublin , Ireland Published online: 04 Feb 2011.

To cite this article: Brigid Laffan (2003) Auditing and accountability in the European Union, Journal of European Public Policy, 10:5, 762-777, DOI: 10.1080/1350176032000124078 To link to this article: http://dx.doi.org/10.1080/1350176032000124078



Auditing and accountability in the European Union


Brigid Laffan

ABSTRACT This article explores the dynamics of financial accountability in the European Union. Financial accountability is a subset of administrative accountability and contributes to parliamentary accountability. Following an analysis of the meaning of financial accountability, the article explores the emergence and evolution of the European Court of Auditors, the ‘financial conscience’ of the Union. It traces the establishment of the Court and the growing salience of financial management in the Union. The work of the Court became entwined in the drama of political accountability in the Union that led to the resignation of the Santer Commission in March 1999. KEY WORDS Accountability; auditing; European Court of Auditors; financial management.

The European Court of Auditors assumed the status of a full institution of the Union when the Treaty on European Union came into operation in 1993. Although established in 1977, it did not have the same legal character as the Union’s representative, legislative and judicial institutions until 1993. The elevation of the Court of Auditors highlighted the growing significance of its function in the politics of the European Union (EU) and the search for enhanced accountability in the Union. With the development of the EU and the gradual Europeanization of public policy-making, the territorial boundaries of systems of accountability are being restructured and reconfigured. The growing salience of the Court of Auditors is part of a wider attempt to enhance the democratic fabric of the Union, a European experiment to democratize political space beyond the state. The Court of Auditors is a non-majoritarian ‘guardian’ type institution, akin to judicial courts or the European Central Bank. Such institutions play a major role in democratic governance in all political systems. By definition, nonmajoritarian institutions are not directly subject to political oversight or the popular vote. The key to their legitimacy lies in their independence and the Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124078


B. Laffan: Auditing and accountability in the EU

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importance of their role in fostering good government. The Court is designed to enhance what might be called systemic legitimacy, to distinguish its role from the usual focus on input legitimacy, on the one hand, and output legitimacy, on the other. Input legitimacy is fostered by representation and consent and output legitimacy arises from the effectiveness and efficiency of what government does. Systemic legitimacy relates to the structures, norms and processes of accountability in any political system. Accountability or the ‘giving of account’ is essential for democracy. The Court of Auditors is part of an EU process of legitimization through accountability. The contemporary focus on accountability in the EU is a consequence of the growing power and reach of the EU. The reconfiguration of systems of accountability and control beyond the state is likely to be patchy and incremental. It is not feasible to simply reproduce national institutions writ large at the European level and supranational systems of accountability are likely to confront specific challenges that arise from their location in a political space beyond states but one that rests on states. The reconfiguration of systems of accountability involves institution building, changes in systems of regulation, shifts in inter-institutional relations, and modifications in the norms that guide the behaviour of institutional actors. New systems of regulation and control may well be contested and resisted by actors whose interests are not served by a reconfiguration of accountability and control. Moreover, the unintended consequences of horizontal control at EU level may lead to changes in systems of vertical control between the EU and the member states. The purpose of this article is to analyse the role of the Court of Auditors in developing an accountability culture in relation to the finances of the Union. The evolving role of the Court interacts and intersects with other changes in the regulatory framework governing the finances of the Union. The Court is but one part of a wider development involving EU institutions and the member states. ACCOUNTABILITY Accountability has always been intrinsic to the search for and the practice of democratic governance. Accountability is ‘about the construction of an agreed language or currency of discourse about conduct and performance, and the criteria that should be used in assessing them’ (Day and Klein 1987: 2, quoted in March and Olsen 1995: 150). Accountability relies on a combination of structures and procedures, in addition to the socialization of public officials about what is appropriate in the conduct of public business. According to March and Olsen, ‘traditions of democracy require political officials to account for their actions; to report, explain, and justify any exercise of authority; and to submit to sanctions if necessary. Public officials are expected to act in anticipation of having to account for their actions’ (March and Olsen 1995: 59). Accountability is built on regulation, process, the establishment of norms and the giving of accounts for actions. Peterson highlights the challenge facing the EU arising from the co-existence of pooled sovereignty and divided accountability (Peterson 1997: 559–78). The establishment of the European

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Figure 1 The role of financial accountability

Court of Auditors and other oversight institutions in the EU is an attempt to foster collective accountability to match pooled sovereignty. Lord in his volume on Democracy in the European Union (1998) distinguished between four forms of accountability: Ω Ω Ω Ω

administrative accountability parliamentary accountability electoral accountability judicial accountability.

Interestingly, he did not include financial accountability in his categorization. Yet financial accountability is an essential part of accountability in any democratic political system given the importance of the public purse. Financial accountability or the audit process is linked both to administrative accountability and to parliamentary accountability. (See Figure 1). A key feature of administrative budgetary processes is to ‘ensure accountability, that funds are actually expended for stipulated purposes, that programmes are carried out as intended, and that funds, from whatever sources, are not spent on unauthorized activities. Budgetary processes also support managerial functions, tying financial decision making to programme performance. (Caiden 1992: 806) Furthermore, audits provide the raw material for Budget Control Committees in the national and European parliaments, hence the contribution to parliamentary accountability. Democratic theory emphasizes the importance of two mechanisms as providing the basis of accountability. These are information and sanctions (March and Olsen 1995: 162–7). The Court of Auditors is not a judicial Court capable of imposing sanctions on other actors. Rather, its contribution to accountability in the EU is based on providing authoritative information to the political institutions based on audits that enables them to monitor and improve financial management. The European Court of Auditors was established in 1977 in response to the weakness of the pre-existing Audit Board of the European Economic Community (EEC) and the Auditor of the European Coal and Steel Community


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(ECSC). The change in the financing of the EU budget as a result of the 1970 and 1975 budget treaties created political pressure for the establishment of a stronger external auditing capacity in the EU. Once established, the Court worked to build on its mandate and influence the evolution of financial accountability in the Union. In addition to the functional tasks associated with external auditing, the Court of Auditors acted to enhance the normative framework of financial accountability in the Union. The Court was part of a wider ‘advocacy coalition’ for improved financial management in the EU.


THE FINANCIAL CONSCIENCE OF THE UNION The role of the Court of Auditors, as part of the normative framework for governance in the EU, was heralded by Mr Hans Kutscher, President of the Court of Justice, when he defined it as the ‘financial conscience’ of the Community at the swearing-in ceremony for the members of the first court in 1977. Subsequently, the Court of Auditors adopted the mantle of ‘financial conscience’, as its official description of itself and its work (Court of Auditors 1995a). The Court is mandated by the treaties to ‘examine whether all revenue has been received and all expenditure incurred in a lawful and regular manner and whether the financial management has been sound’ (Treaty on European Union (TEU), Article 188c). In other words, the Court was given responsibility for different facets of financial auditing, notably legality, regularity, and sound financial management or value for money. Its role spans traditional auditing (legality and regularity), on the one hand, and review and evaluation (value for money), on the other. The Court’s mandate was strengthened somewhat in the Treaty of Amsterdam (TA) when Article 188c was amended to read: The Court of Auditors shall examine whether all revenue has been received and all expenditure incurred in a lawful and regular manner and whether the financial management has been sound. In so doing, it shall report in particular on any cases of irregularity. (Amended Article 188c, TA) In Amsterdam, the Court was given an explicit responsibility to report on cases of ‘irregularity’ or fraud. The stipulation that it audit ‘all’ revenue and expenditure meant that its remit included the budgets of the three European Communities, the European Development Fund, the Communities’ borrowing and lending activity and all satellite bodies established by the Union. This was a vast remit given that the European Community’s (EC’s) financial instruments are deployed in the member states and in third countries throughout the world. It gave the Court responsibility for auditing the budgetary programmes that were characterized by shared administration between the Commission and the member states and those that the Commission administered itself. In addition, it was given the external auditing responsibility for all EU institutions. The powers of the Court were expanded by the TEU when it was given the task of providing the Council and the European Parliament with what is

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Figure 2 The auditing landscape in the EU

known as a statement of assurance concerning the reliability of the accounts and the legality and regularity of the underlying transactions (TEU, Article 188c1). In the Treaty of Amsterdam, Article 188c1 was amended to make provision for the publication of the statement of assurance in the Official Journal. The treaties also make provision for the Court to give its opinions on changes to the financial regulation on its own initiative and when requested by the Council or the European Council. The Court has also developed a number of non-treaty based practices. For example, the President of the Court may issue what is known as a Presidential Letter to any of the institutions to raise important issues arising from an audit. The specific rules governing financial management in the Union are based on the Financial Regulation, which required unanimity in the Council. Following the Treaty of Nice, qualified majority voting (QMV) will become the decision rule for the Financial Regulation from 1 January 2007. The Financial Regulation is applicable to the general budget and covers all institutions. It is the legal text for all financial officers in the institutions, the Court of Auditors and the spending services. The Court has been a strong advocate of the reform of the Financial Regulation for many years. As the ‘financial conscience’ of the Union, the Court is a central node in a matrix of financial accountability that embraces the internal auditing units in each EU institution, the Budgetary Control Committee of the European Parliament, and national audit authorities. (See Figure 2.) The structure of financial accountability in the Union was the subject of considerable change in the 1990s as the EU institutions and the member states attempted to put in place a tighter regulatory framework within individual institutions and for the system overall. Strong accountability pressures developed in the Union (Levy 2000: 24–6). FROM MANDATE TO ACTION When the Court of Auditors began its operations in Luxembourg in 1977, it had to build up an institutional capacity that would enable it to fulfil its treaty


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mandate. This absorbed its energies for almost a decade. The Court had to agree and establish: Ω Ω


Ω

an organizational structure; internal principles, processes and procedures for auditing; relations with the bodies that it had to audit. (Laffan 1997a, 1999; Wilmott 1984)

Considerable activity and organizational capacity was deployed in the early years to establish the new institution and to assert its place in the wider institutional landscape. It faced all the problems familiar to other EU institutions, notably diverse traditions of public auditing, differing conceptions of value for money, and a multilingual and multinational operating environment. In addition, it was and remains a ‘top-heavy’ institution as each member state has a full member of the Court. The development of an agreed approach to auditing was particularly problematic as there were very different traditions of auditing among the member states. The North European auditing tradition placed emphasis on legality, regularity and ‘value for money’, whereas in the Mediterranean states the emphasis was more narrowly focused on issues of legality and regularity. The Court itself adopted a broad definition of its role that embraced both compliance and sound financial management. This inevitably led to difficulties in its relations with the Commission because it enabled the Court of Auditors to make judgments about the quality and management of individual programmes. The Court had great difficulty in its early years asserting its place in the Union’s institutional landscape (Laffan 1999). It had extremely contentious relations with the Commission and the European Investment Bank and was largely ignored by the Council of Ministers who would politely accept its reports and fail to act on them. In 1983, the Stuttgart European Council asked the Court to review the systems of financial management in the EU and to report to it. It was the first time that the Court of Auditors had been given a task directly by the European Council. The report covered all the main programmes – agriculture, structural funds and development assistance. It highlighted the main weaknesses in financial management and made recommendations for improvements. Subsequently, the European Council did not even discuss the contents of the report and there was no follow-up (Kok 1989: 358). The Court had great difficulty developing an institutional identity for itself and in gaining the attention of the Union’s executive powers. The British House of Lords was one of the few national institutions to devote any attention to the Court and its activities. It could be argued that the House of Lords was a founder member of the ‘better financial management’ coalition in the Union and a supporter of the work of the Court of Auditors (House of Lords 1987, 2001). Year after year, the House of Lords issued reports on financial management in the Union and on the problem of fraud. In a 1989 report, the House of Lords concluded that ‘the Court of Auditors has drawn attention on numerous occasions to weaknesses in administration, failure to exercise ade-

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quate control and other grave irregularities’ (House of Lords 1989: para. 179). However, it would take a shift in the Court’s external environment to ensure that its voice would be heard in the Union.


A BIGGER BUDGET The development of the EU’s budget has been characterized by legendary battles between the member states on how much the EU should spend, where it should get its revenue from, who should decide and how it should deploy its financial resources (Strasser 1992; Laffan 1997a). Political and administrative energy went into the annual budgetary cycle and little was devoted to evaluating just how the EU spent its monies. The major breakthrough in the evolution of the Union’s financial capacity came in 1988 when agreement was reached on the Delors I package. This financial package led to a doubling in the size of the Union’s financial resources between 1988 and 1993, and a doubling of financial transfers to the EU’s poorer regions by 1992. In addition, the EU developed a large number of new spending programmes in the 1980s – research and development, environmental policy, cultural policy, education and external relations. Many more states became ‘net contributors’ to the EU budget and were concerned that EU monies should be spent well and wisely. Sound financial management ceased simply to be a UK preoccupation in this period. Following agreement to the Delors I financial package, the ‘sound financial management’ advocacy coalition became politically far more important in the Union. A larger EU budget made financial management a more pressing problem but so too did media coverage of instances of fraud against the financial interests of the Union. Euro-sceptics used examples of fraud to undermine the Commission and the Union itself. In 1994 the Euro-sceptical British Member of Parliament, Bill Cash, following the publication of the Court of Auditor’s Annual Report, argued that ‘British tax payers were contributing to a bottomless fraudulent pit’ (Financial Times, 16 November 1994, p. 1). Although the exact level of fraud against the financial interests of the Union is impossible to determine, there was growing evidence of substantial fraud associated with the common agricultural fund, the structural funds and the common commercial policy (Mendrinou 1994; Ruimschotel 1993). The House of Lords in a 1989 report concluded that fraud against the EU budget ‘strikes at the roots of democratic societies, based on the rule of law and its enforcement, and is a public scandal’ (House of Lords 1989: para 205). Fraud and not just financial management became an issue on the EU agenda. The Commission in its Annual Reports, Fighting Fraud, provided ample evidence of meat carrousels, non-existent produce receiving subsidies, double weighing of cotton, reimportation of refined sugar and many other instances. Fraud was being perpetuated against both the ‘own resources’ and expenditure side of the budget. The commercial policy, the common agricultural policy (CAP) and the structural policy were particularly vulnerable to fraud.


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THE COURT COMES IN FROM THE COLD With the growth of the EU budget, the expansion in the number of budgetary programmes and the emergence of a ‘net contributors’ club in the EU, the salience and visibility of the work of the Court increased (House of Lords 2001). One of the most outspoken Court Presidents was Andre´ Middelhoek who was President until the end of 1995. As a member of the Court from the outset, Middelhoek was very committed to the auditing institution and its place in the institutional landscape. He was determined to heighten the profile of the Court and enhance the importance of financial management. He wanted to increase the Court’s authority over the financial operations of the Commission and the member states to ‘show to European citizens that someone is looking after their money’ (Financial Times, 14 November 1994). He saw himself as the guardian of citizens’ interests in the EU. He had a particularly difficult relationship with Jacques Delors. In fact, they never met during Delors’ term of office, an extraordinary occurrence given the interdependent relationship between the Commission and the Court. Commission officials felt that Mr. Middelhoek was ‘good at banging the drum about fraud and waste but not so good at establishing the relationships to start putting things right’ (Financial Times, 14 November 1994). Improved financial management would require the development of more co-operative relationships between the Court and the Commission. The Court’s Annual Reports regularly drew attention to failures and weaknesses in the management of EU resources and proposed improvements. In its 1993 Annual Report, the Court felt compelled to conclude: Comparing findings in this report with those of the Court’s Annual Report for 1983 and with the observations in its report in response to the conclusions of the European Council of 18 June 1983, it is clear that many of the problems then identified in accounting and financial management of the most important areas of Community expenditure have not yet been overcome. Although the Commission has undoubtedly made efforts to correct the weaknesses in accounting and financial management systems to which successive reports of the Court have drawn attention, it has failed to secure the enforcement of the proper level of financial management and control necessary in the complex environment of Community finances. (Court of Auditors 1994: 5) Although the Commission bridled at the continuous criticism from the Court of Auditors concerning its management of EU finances, it was finally forced to take the Court’s observations seriously when the broad thrust of what the Court had been saying for years was confirmed by an out-going Commissioner, Peter Schmidhuber, in late 1994. In what became known as the Schmidhuber Testimonial, the Commissioner concluded that: Ω Ω

the Commission paid far more attention to the content of policy than to financial management; budget planning could be strengthened;

770 Ω Ω


Ω


the implementation of the budget suffered from inadequate preparation; there was an over-reliance on the Financial Controller to detect breaches of the Financial Regulation; there was inadequate evaluation of funding programmes. (European Commission 1995)

Commissioner Schmidhuber concluded in his report that ‘The principle of sound financial management stated in Article 2 of the Financial Regulation and stressed repeatedly by the Court of Auditors is not acknowledged as a general maxim’ in the Commission (European Commission 1995). Thereafter there was a change in the tone and substance of the relationship between the Commission and the Court of Auditors. President Santer, who took over as Commission President in January 1995, made improved relations with the Court of Auditors a central tenet of its work programme and it embarked on an internal process of reform to up-grade financial management. It is paradoxical, therefore, that the Santer Commission was forced to resign in March 1999 because of the weakness of financial management. The two Presidents who succeeded Middlehoek, Dr Bernhard Friedmann (1996–1999) and Mr Jan O. Karlsson (1999–) presided over a more visible and engaged Court. PROVIDING INFORMATION AS A BASIS FOR ACCOUNTABILITY The Court as an external auditing body exercises its role by providing ‘information’ about the management of the Union’s finances to the Union’s executive and parliamentary bodies at EU and national levels. It has no judicial functions and does not impose sanctions on individual officials or institutions. Hence the basis of its contribution rests on the outcome of its audits as expressed in reports. Accountability is promoted through publication and the dissemination of information about the systems and practices of financial management in the EU. The Court enhances accountability in the Union by conducting its audits in a professional manner and by reporting on the findings of its audits (Desmond 1996, 1999). The basis for the Court’s contribution to accountability in the Union rests on the twin pillars of information and publication. In addition, the expectation of an external audit influences the behaviour of public officials engaged in the deployment of EU monies at EU and national levels. The fact that public officials know that their actions may be scrutinized by an external auditing body influences how they treat EU finances. The Court’s work programme and audits enter the political arena in the form of the Court’s Annual Report published in the autumn of each year for the preceding year, the yearly Statement of Assurance, a myriad of special reports on particular institutions, policy programmes or financial processes, Opinions when requested by the Council and Observations on the initiative of the Court. The Court is a prolific producer of reports as this is its primary means of giving an account of the conduct and results of its audits in the


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Table 1 Reports of the Court of Auditors 1993–1998 Annual Reports/Statements of Assurance Special Annual Reports Special Reports Opinions/Observations Total

6 76 46 38 166


Source: Annex 3, 1998 Annual Report of the Court of Auditors.

Union. Between 1989 and 1995, it produced ninety-six reports including five annual reports (Laffan 1997a: 197). The tempo has increased since then. See Table 1 for a summary of the Court’s reports 1993–1998. The Annual Report consists of detailed observations of different spending programmes and the replies from the Commission and other EU institutions on its observations. The President of the Court of Auditors presents the Court’s Annual Report and the Statement of Assurance at a plenary session of the European Parliament each November. In the 1990s, the visibility of the Court’s reports increased considerably. The Annual Report receives considerable coverage in the media throughout Europe and is widely reported on. In 1997, the Court of Auditors altered the presentation and content of the Annual Report somewhat. Because all of its reports became part of the discharge procedure in the European Parliament and the Council, the Court established a new policy of publishing the results of audits that dealt with specific sectors in special reports, thereby distinguishing between its general response to the Union’s budgetary programmes and detailed observations on specific programmes and practices. This new approach was continued in 1999 for the 1998 Annual Report and again in 2000 for the 1999 Annual Report. The 1999 Annual Report published in November 2000 contained separate chapters on revenue, all expenditure programmes and the Statement of Assurance. In addition, the Court outlined its main concerns in the general introduction. The Court placed considerable emphasis in 2000 on the revision of the Financial Regulation, which it sees as necessary to provide the Union with an appropriate regulatory framework for the reform of financial management. It is particularly concerned that the so-called authorizing officers (those who decide how to spend EU monies) should have full responsibility for financial management. This is a major change in the internal accountability culture in the Commission, which traditionally gave primary responsibility to the Financial Controller. Second, the Court welcomed the Commission’s reform programme and saw the programme as vindication of its views over many years. The Court felt compelled to argue that ‘Many of the important weaknesses which the reform programme is seeking to address are points which the Court in its reports over the years has emphasised on many occasions’ (Court of Auditors 2000: 3). Third, the Court of Auditors is clearly identifying the role of the member states

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in improving financial management. It is prepared to argue publicly that ‘This annual report and the special reports published since the last discharge continue to draw attention to serious and persistent weaknesses in Member States’ management and control systems’ (Court of Auditors 2000: 5). The Court is beginning to highlight the need for improved vertical control and accountability in the EU and not simply horizontal control and accountability. Although the Annual Report and its attendant publicity is the Court’s main public event each year, Special Reports play an increasingly important role in the activities of the Court. The growing emphasis on Special Reports can be gleaned from Table 2, which sets out the focus of the Special Reports in 1998. The majority of reports involved audits of the Union’s internal policies with a Table 2 Focus of Court of Auditor’s Special Reports in 1998 External Expenditure Special Report 1/98 Co-operation with non-member Mediterranean states Special Report 5/98 Reconstruction in former Yugoslavia Special Report 7/98 on development aid to South Africa Special Report 11/98 on Phare and Tacis Special Report 24/98 European Development Funds Special Report 25/98 on nuclear safety measures in the CEECs and NIS Internal Programme Expenditure Special Report 2/98 on clearance of EAGGF accounts Special Report 4/98 on EU action as regards water pollution Special Report 12/98 Rural Development 2 Special Report 14/98 ERDF Assistance Special Report 15/98 Structural Fund Interventions Special Report 16/98 Structural Operations Special Report 17/98 Energy Programmes Special Report 18/98 Fisheries Sector Special Report 19/98 BSE Crisis Measures Special Report 21/98 EAGGF Clearance of Accounts Special Report 22/98 Equality Programmes Special Report 23/98 Information and Communications Measures managed by the Commission Customs Union/Revenue Base Special Report 4/98 on reduced rate of levy on New Zealand milk and Swiss cheese Special Report 6/98 on assessment of VAT and GNP Special Report 9/98 Protection of EC financial interests in VAT on intra-Community Trade Special Report 13/98 Risk analysis in customs control Special Report 20/98 Audit checks on agricultural products receiving export refunds EU Institutions Special Report 8/98 on UCLAF Special Report 10/98 Allowances of MEPs



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particular emphasis on the CAP and structural expenditure. In addition there were six reports on the Union’s external expenditure, a growing proportion of the Union budget. The reports on the Unit for the Co-ordination of Fraud Prevention (Unite de Co-ordination de la Lutte Anti-Fraude – UCLAF) and on allowances paid to Members of the European Parliament (MEPs) were designed to audit practices in the Union’s institutions. Two years later in 2000, the Court audited the expenditure of the European Parliament’s political groups (Court of Auditors, Special Report, no. 13/2000). The Statement of Assurance is the third and most recent manner in which the Court collects data on financial management in the Union and publishes it as a contribution to the discharge procedure. The requirement that the Court provide the European Parliament and the Council with a Statement of Assurance concerning the transactions underlying the EU budget dates from the TEU when the Court was elevated to the status of a full EU institution. The 1994 budget was the first attempt to carry out the work related to this new function. The TA made provision for the publication of the Statement of Assurance in the Official Journal as a means of enhancing the availability, in a public format, of the Court’s conclusions about the reliability of the accounts. Since the first statement of assurance in November 1995, the Court has issued one each year highlighting problems in the reliability of the accounts, particularly in relation to the CAP and the structural funds. In its 1999 Statement of Assurance the Commission again drew attention: to problems with the Community’s financial statements similar to those found in previous years. Weaknesses in accounting systems and procedures mean that the information presented is in some cases incorrect or incomplete. The problems in management and control systems covering operational expenditure, both at the Commission and in Member States, continue to give rise to a significant incidence of errors. (Court of Auditors 2000: 5–6) The Court of Auditors by means of its Annual Reports, Special Reports and the Statement of Assurance provides the raw material for parliamentary and administrative accountability and ensures that there is an advocate for ‘sound financial management’ in the EU system. Financial accountability interacts and intersects with political accountability through the discharge procedure. THE DISCHARGE PROCEDURE: AUDITING AND POLITICS MEET The European Parliament has the power to grant or refuse a discharge to the Commission on its implementation of the EU budget, based on a recommendation from the Council. The Commission is legally obliged to take the Parliament’s discharge resolutions into account and make its best efforts to deal with the shortcomings highlighted by the Parliament. The procedure is the responsibility of the Parliament’s Budgetary Control Committee, a committee


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established in 1979. The Committee prepares a discharge report each year based on the findings of the Court of Auditors and its own deliberations. Contact between the Court of Auditors and the Budgetary Control Committee is extensive as the latter relies for its information on the reports of the Court. All the Court’s reports – Annual Report, Special Reports and the Statement of Assurance – form part of the discharge procedure. Failure to grant a discharge to the Commission is an extremely powerful weapon in the hands of the European Parliament. In 1984, failure to grant a discharge for the 1982 budget did not lead to the resignation of the Commission as the Thorn Commission was within weeks of the end of its mandate. Since then, the Parliament has delayed granting a discharge because of concerns about the Commission’s management of the milk quota system in Spain, Greece and Italy. The discharge procedure for the 1996 budget in 1998 culminated in the resignation of the entire Santer Commission in March 1999. This was not the original intention or expectation of the European Parliament or the Budgetary Control Committee. However, the position of the Commission became increasingly untenable in the first quarter of 1999. The Budgetary Control Committee recommended that the Parliament delay giving the Commission a discharge for the 1996 budget because of continuing evidence of poor financial management in the Court of Auditor’s reports. There was a debate in the Committee about the consequences of a failure to grant a discharge, notably if it would necessitate the resignation of the Commission. This was in many ways a phoney debate, as the resignation of the Commission was not on the cards at that stage. The issue became politicized in November 1998 when a Commission official, Paul Buitenen, turned whistle blower by going public on internal management problems in the Commission. In December 1998, the Budgetary Control Committee voted by a very narrow margin to grant a discharge to the Commission. However, allegations of mismanagement and fraud would not go away. Allegations against Commissioner Cresson, concerning the granting of a contract to someone unable to do the work, received extensive media coverage and led to a motion of censure against the Commission in the European Parliament plenary in January 1999. In the vote, 232 MEPs voted in favour of censure, with 292 against and 27 abstaining. It appeared as if the Commission would survive. However, the Commission in return for the support of the Socialists, the largest grouping in the Parliament, agreed to the establishment of a Committee of Independent Experts to inquire into the allegations. The Committee of Independent Experts was given a very wide brief to examine how the Commission dealt with fraud, mismanagement and nepotism. The Committee published two reports – one in March 1999 and a second in September 1999. The Committee was chaired by Mr Andre´ Middelhoek, the former President of the Court of Auditors. The conclusions of the report published in March were devastating for the Commission. In what became the most quoted extract from the report, it was stated that ‘It is becoming increasingly difficult to find anyone who has even the slightest sense of responsibility’ (Committee of Independent Experts, March 1999). The



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entire Commission was forced to resign, although it might have survived if Commissioner Edith Cresson had resigned. The resignation was regarded as a test of power between the executive and parliamentary accountability and the Parliament won. In the Conclusions of the European Council in Berlin which proposed Romano Prodi as the next President of the Commission, reference was made to ‘the improvement of its organisation, management and financial control’ and to the need to ‘ensure that whenever Community funds, programmes or projects are managed by the Commission, its services are suitably structured to ensure the highest standards of management integrity and efficiency’ (Berlin European Council Conclusions, part 2). The Prodi Commission was appointed with a strong mandate for reform, a process that was given to a senior Vice President, Neil Kinnock. In September 1999, just as the Prodi Commission took office, the second report of the Committee of Independent Experts was published, a detailed text on the reform of the Commission. The report made a myriad of recommendations in its eight chapters about practices in the Commission for tackling management, irregularities and fraud (Committee of Independent Experts 1999). The Commission is in the process of putting in place a new structure for financial management, internal control and audit. The Court of Auditors is very supportive of the Commission’s reform process. In fact, it claims credit for identifying the weaknesses over many years. The Commission’s proposals to overhaul the internal system of financial control are in line with the proposals of the Court. Although the Court was not a central player in the unfolding drama of the Commission’s resignation, its account of financial management weaknesses in its many reports provided a justification of those who demanded improved standards in the Commission. CONCLUSIONS The focus of this article was not on the detailed work of the Court of Auditors as an external auditing institution. Rather, the aim was to analyse the manner in which the Court has contributed to a reconfiguration of systems of accountability in the EU. The Court is part of a wider process of institution building in the Union both in organizational terms and in terms of establishing and upholding a normative framework for EU governance. The Court has limited human resources and faces considerable challenges in auditing the EU budget given the reach and range of the Union’s financial instruments. However, since its inception the Court has provided the most systematic and detailed information about the performance of the Union’s budget. The history of the Court of Auditors since its establishment in 1977 highlights the manner in which the shift in the revenue base of the EU budget and the increased powers of the European Parliament required a concomitant shift in the locus of financial accountability. National accountability structures on their own were insufficient given the development of the EU budget. The establishment of the Court of Auditors was justified on the basis that adequate


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financial accountability required an external auditing institution at EU level. The early years of the Court were devoted to developing its organization, procedures and presence in the Union’s institutional landscape. Inevitably there were tensions between the Court and its auditees, particularly the Commission. Gradually the Court was accepted as part of the wider system of accountability involving internal audit in the individual institutions and the Parliament’s Budgetary Control Committee. The Court and Parliament worked closely together to enhance financial accountability and hence administrative and parliamentary accountability in the Union. The salience of the Court increased in response to the growing size of the EU budget, the related increase in the number of ‘net contributors’, and growing evidence of problems of financial management in the Commission and fraud against the EU budget. The British House of Lords, the European Parliament and the European media heightened awareness of the problems of budgetary management in the Union. The Court as a guardian type institution became an advocate for improved financial management in the Union and provided, through its reports and Statements of Assurance, information – a key ingredient of accountability. As it gained in confidence it was more willing to highlight problems in the member states and not just at EU level. Traditionally, it saw its role in terms of horizontal control and accountability but in the 1990s it began to highlight the national dimension of financial accountability. As befits an auditing body, the Court of Auditors did extensive technical work tracking the use of EU monies across the member states and beyond. It left the political dimension of accountability to the Parliament and the Council. However, its reports provided the raw material for the process that culminated in the resignation of the Commission in March 1999 and the subsequent reform process undertaken by Vice President Kinnock. Address for correspondence: Brigid Laffan, Department of Politics, University College Dublin, Belfield, Dublin, Ireland. Tel: 353 1 7068344. Fax: 353 1 7061171. email: [email protected] REFERENCES Caiden, N. (1992), ‘Budgetary processes’, in M. Hawkesworth and M. Kogan (eds), Encyclopedia of Government and Politics, London: Routledge, pp. 805–20. Committee of Independent Experts (1999) First Report on Allegations Regarding Fraud: Mismanagement and Nepotism in the European Commission, Brussels: European Parliament, 15 March. Court of Auditors (1994) Annual Report concerning the Financial Year 1993, Official Journal C 327, Luxembourg: Office for Official Publications of the European Communities. Court of Auditors (1995a) Auditing the Finances of the European Union, Luxembourg: Court of Auditors booklet. Court of Auditors (1999) Annual Report concerning the financial year 1998, Official Journal C 349, 3 December 1999.



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Court of Auditors (2000) Special Report on the expenditure of the European parliament’s political groups, Official Journal C 181, 28 June 2000. Court of Auditors (2001) Annual Report concerning the financial year 2000, Official Journal C 359, 15 December 2001. Desmond, B. (1996) Managing the Finances of the European Union: The Role of the European Court of Auditors, Dublin: Institute of European Affairs. Desmond, B. (1999) ‘The European Court of Auditors’, in J. Dooge and R. Barrington (eds), A Vital National Interest: Ireland in Europe 1973–1998, Dublin: IPA, pp. 113–25. European Commission (1995) Schmidhuber Memo on Financial Management, Sec.95.26. European Union, The Treaty of Nice, Brussels, 12 December 2000, SN533/00 (Provisional Text). House of Lords (1987) Report on the Court of Auditors, Select Committee on the European Communities, Session 1986/87, 6th report (HL 102). House of Lords (1989) Fraud Against the Community, Session 1988–89 (HL 27). House of Lords (2001) The European Court of Auditors: The Case for Reform, Session 2000–01, 12th Report (HL 63). Kok, C. (1989) ‘The Court of Auditors of the European Communities: the other European court in Luxembourg’, Common Market Law Review 26: 345–67. Laffan, B. (1997a) The Finances of the Union, London: Macmillan. Laffan, B. (1999) ‘Becoming a living institution: the evolution of the European Court of Auditors’, Journal of Common Market Studies 37(2): 251–68. Levy, R. (2000) Implementing European Union Public Policy, Cheltenham: Edward Elgar. Lord, C. (1998) Democracy in the European Union, Sheffield: Sheffield Academic Press. March, J.G. and Olsen, J.P. (1995) Democratic Governance, New York: The Free Press. Mendrinou, M. (1994) ‘European Community fraud and the politics of institutional development’, European Journal of Political Research 26(1): 81–101. Peterson, J. (1997) ‘The European Union: pooled sovereignty, divided accountability’, Political Studies XLV: 559–78. Ruimschotel, D. (1993) ‘The EC budget: ten per cent fraud? A policy analysis’, Working Papers EPU, no. 93/8, Florence: EUI. Strasser, D. (1992) The Finances of Europe, 7th edn, Luxembourg: EC Official Publications. Wilmott, P. (1984) ‘The European Court of Auditors: the first five years’, Public Administration 62: 211–18.



The European Anti-Fraud Office (OLAF): a European policy to fight against economic and financial fraud? Véronique Pujas

a

a

Institut d'Etudes Politiques , Grenoble, France Published online: 04 Feb 2011.

To cite this article: Véronique Pujas (2003) The European Anti-Fraud Office (OLAF): a European policy to fight against economic and financial fraud?, Journal of European Public Policy, 10:5, 778-797, DOI: 10.1080/1350176032000124087 To link to this article: http://dx.doi.org/10.1080/1350176032000124087



The European Anti-Fraud Office (OLAF): a European policy to fight against economic and financial fraud? Downloaded by [Sciences Po Bordeaux ] at 05:10 13 October 2014

Ve´ronique Pujas

ABSTRACT The setting-up of the European Anti-Fraud Office (OLAF) is studied, exploring the genesis and the institutionalization of a new paradigm in European policy, the ‘protection of the Communities’ financial interests’, in the context of increasing public anxiety regarding issues of security. It is argued that the European Commission actually took advantage of being cast as the scapegoat in the 1999 crisis by progressively strengthening its own powers within the third pillar, progressing towards the construction of a single judicial area in Europe. In that respect, anti-fraud fighting is both a means and a strategy to reinforce the legitimacy of European governance. Nevertheless, such a strategy is risky when we observe that the effectiveness of European anti-fraud policy is highly dependent on the operational means mobilized by the member states, strictly managed by intergovernmental rules. KEY WORDS Financial fraud; governance; legitimacy; OLAF; security; transnational crime.

In order to understand the historical and institutional background which led to the creation of the Unit for the Co-ordination of Fraud Prevention (UCLAF) in the late 1980s, which made way for the European Anti-Fraud Office (OLAF) a decade later, it is necessary to highlight the emergence of a new priority in the member states’ institutions and policies. This new field of activity in public action is in its infancy but its place on the public agenda recently became a priority owing to the political circumstances of September 11. It is therefore interesting to study the development of the new phenomenon of fighting fraud and corruption at the European level. The emergence and identification of the problem thus defined, and its progressive transformation into a new paradigm of public action at a supranational level, are neither fortuitous nor trivial and therefore deserve analysis. How can we account for the emergence of such widespread practices of fraud and corruption in a particular context, which may act as an obstacle to European construction? Is it the mere transfer of the difficulties met by national authorities in their fight Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124087


V. Pujas: The European Anti-Fraud Office

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against domestic corruption on to the European level? Or is it that the emergence of a single market and the progressive integration of the states within a border-free European area create new opportunities for the development of Europe-wide fraudulent practices? In such a case, is the incorporation of antifraud fighting on the European agenda the concrete and objective representation of new problems to be addressed, or can we assert that it is the creation of a new ‘public enemy’ which would make it possible to institutionalize on the European level new domains of public policies as a guarantee of national sovereignty? In short, who are the European and/or national actors who have contributed to the emergence of this new public policy? What are the stakes in such an issue? To what extent is the implementation of a new anti-fraud policy part and parcel of the establishment of a new mode of legitimacy in European integration? Could it reduce the democratic deficit that plagues European institutions? We will first study the emergence of this new paradigm in European public action – ‘the prevention and repression of fraud and other illegal activities detrimental to the Communities’ financial interests’ – and more particularly its links with the creation of UCLAF and its subsequent transformations. Such institutional innovations have been brought about by the discovery of fraudulent practices within the Commission as well as by its alleged incapacity to act against mismanagement of Community funds by member states. Our aim is to identify the national and supranational actors who may play a role in the institutionalization process of this new problem on the European level, as well as highlight their converging and diverging interests. Two traditional approaches, a neo-institutional and an intergovernmental one – even if declared obsolete by the Convention on the future of the European Union (EU)1 – are still very useful and will provide us with the necessary general framework to interpret the orientations of anti-fraud fighting in Europe. The second part will be devoted to a more intra-institutional approach in order to account for the failure of the first taskforce of fraud prevention, better known by the acronym UCLAF. In contrast, its successor, OLAF, which was set up ‘under exceptional circumstances’, was the fruit of a political will to increase European citizens’ trust in the European institutions which nevertheless still lack the necessary means for such a purpose. THE ‘PROTECTION OF THE COMMUNITIES’ FINANCIAL INTERESTS’ AND THE EMERGENCE OF UCLAF/OLAF The historical and institutional process which has led to the setting-up of the anti-fraud taskforce is linked to the institutional development of two key sectors in European construction – the budgetary and financial competences granted to the supranational European institutions and the furthering of member states’ integration within a single judicial area (first and third pillars). These sectors have gone through turbulence and show that fighting fraud, the ‘lame duck’ in Community politics, is still embryonic in Europe. Also, we

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need to acknowledge the fact that fighting fraud and corruption should be dealt with by the European institutions and is more an artefact of political dynamics than the actual nature of problems which need to be addressed. The construction of this public problem is, in fact, the result of tensions between the Commission, whose strategy aims at strengthening supranational institutions, and member states, who want to reinforce intergovernmentalism under the third pillar – the real stake in anti-fraud fighting. They are opposed to the idea that European supranational institutions should have responsibility for leading an anti-fraud and anti-corruption policy, a highly salient issue in domestic politics.2 Agenda-setting of a ‘new’ public issue: ‘fraud and other illegal activity detrimental to Community financial interests’ The actors of the European supranational institutions became aware that fraud and corruption were of direct concern when the Community institutions were granted ‘own resources’ – independent from member states – in the 1970s. Fraud, which had always existed and only became visible under certain circumstances, was then presented as a problem which ought logically to be addressed by the European Community (EC), within the frame of the ‘Community building’ process, and no longer by member states alone. Paradoxically, the institutional and economic evolution which fostered the emergence and shaping of the notion that Community-wide fraud and corruption should be addressed on the supranational level was to prove detrimental to the actual resolution of the problem, as we will see. Alongside the allocation of own financial resources, the European Court of Auditors was created in 1978. The task of this independent body was to evaluate and control Community expenditure. As early as the 1980s, the Court’s reports revealed instances of fraud and irregularities, notably concerning mismanagement of agricultural subsidies (the common agricultural policy accounted for 70 per cent of all Community expenditure at that time) (Nugent 1999: 390). These critical reports were presented to Members of the European Parliament (MEPs) by the Budgetary Control Committee respectively in 1984,3 1994,4 19955 and 19986 on the occasion of the budget discharge procedure. With the task of auditing the Community institutions, the Court of Auditors was not granted the necessary means and competences to investigate instances of fraud.7 While acknowledging these shortcomings, the Court upheld the denunciations by the Budgetary Control Committee which called for a real Community action plan in order to fight against European funds evasion. On the basis of an internal report about anti-fraud fighting activities, the Commission decided on the creation of the Unit for the Co-ordination of Fraud Prevention (UCLAF8) in 1987. It was to be divided into ‘anti-fraud units’ among the various expenditure and revenue departments. It became operational in July 1988. However, the Court of Auditors’ reports still revealed instances of fraud and irregularities. Within the framework of the discharge



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procedure in 1990 and 1994 by the European Parliament, UCLAF’s competences remained divided between Directorate-General (DG) VI (Agriculture, the most important budget in the EC), DG XIX (Budgets), DG XX (Financial Control) and DG XXI (Customs and Indirect Taxation), although its staff was increased. In 1995, UCLAF was placed under the responsibility of Mrs Grandin, the Swedish Commissioner in charge of financial control, and consequently of fraud protection. In the same year, all UCLAF operational activities were centralized. Nevertheless, in 1996 the investigation committee created by the European Parliament on the common transit regime9 pointed to the shortcomings and failures in UCLAF’s activities. It advocated the development of the role of UCLAF as ‘an information-gathering unit on crime’ and the creation of ‘a central bureau to exchange information in order to help national courts in their transnational legal activities’. With the support of the Commission and the European Parliament, the member states, during the 1993 Copenhagen European Council, admitted their inadequate management of Community funds and came to the unanimous conclusion that they had to address Community fraud in the same way that they dealt with the problem of domestic fraud – and its detrimental impact on their national budgets. This issue was debated during the meeting of Justice and Home Affairs Ministers in Essen in December 1994 who requested that the member states should adopt common measures. This collaboration was formalized in an agreement in principle during the 1994 Corfu European Council and led to the adoption of a Convention on the protection of the Communities’ financial interests10 in 1995, which defined the general framework of the Commission’s anti-fraud fighting activities.11 Europe’s concerted policy against fraud, hampered by the slow ratification process of the Convention and of its additional protocols signed in 199612 and 199713 (PIF (Protocol for the Convention on the Protection of the European Communities’ financial interests) instruments for the protection of Community financial interests) which granted the necessary legal and judicial means to conduct such actions, nullified any concrete European collaboration on this issue. It also cast doubt on the member states’ real political will to fight effectively against fraud and corruption. Indeed, the practical enforcement of measures for the recovery of misallocated funds and the judicial follow-up were still under the sole responsibility of member states, some of which had not been very efficient in their fight against domestic fraud and corruption (Pujas and Rhodes 1999; Pujas 2000, 2001). The context was one of political awareness by member states within the Council that such a problem existed objectively, while the enforcement measures remained essentially in the hands of the selfsame states. The creation of UCLAF, a Community body in charge of fighting against corruption within the Commission, complemented the internal financial supervisory activities which already existed within DG XX. In spite of UCLAF’s various mutations between 1987 and 1999, its more numerous staff, and the successive declarations of intent and official statements in support of the fight against all


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forms of fraud detrimental to Community interests, the financial auditing departments repeatedly revealed cases of very ‘flexible’ and ‘twisted’ adaptations of the rules in the European institutions. ‘The shortcomings revealed in the discovery of fraud and irregularities, as well as in the related investigations’, and ‘the absence of any efficient and coherent legal proceedings at the level of the European Union’ were denounced by Herbert Bosch, the Budgetary Control Committee rapporteur on 7 October 1998. In his conclusion, he insisted on the necessity of reforming UCLAF, which was also the object of strong criticism within the Commission itself. Thus, the European Parliament expressed its mistrust of the Commission on several occasions, by highlighting the Commission’s responsibility for the emergence of irregularities and instances of nepotism, as revealed in the Auditors’ report. This new stance, as a counter-force, allowed the European Parliament to strengthen its new co-decision and budget control powers, whereas its legislative activities had decreased over the previous years. It was also the opportunity to reveal to the public its activism in its fight for transparency. During the budget discharge procedure of 1998, two motions of censure were voted, but none with the necessary majority to be adopted. Nevertheless, the first motion led to the creation of a Committee of Independent Experts, also known as the ‘Committee of Wise Men’, whose non-political report, outside the Community institutions, was aimed at calming things down while highlighting the accusations made by the Parliament’s Budgetary Control Committee. The so-called Bosch Report was very critical and confirmed the Commission’s failure to prevent and punish the instances of mismanagement within its own services. Its conclusions led to the resignation of the Santer Commission in March 1999. The Bosch Report was adopted by the Parliament in May 1999 and the creation of OLAF was confirmed, alongside the adoption of related legislation according to the co-decision procedure. European anti-fraud strategy in context After the presentation of the historical and institutional evolution which has led to the emergence of a new European anti-fraud policy and the appearance of a new paradigm in public politics and its institutional foundation (the protection of Community financial interests), the somewhat blurred but consensual perception of this issue needs to be analysed. Indeed, a number of national experts and scientific studies have confirmed that fraud and irregularities had reached unprecedented levels in the context of global trade14 and the abolition of borders linked to the creation of the single market (Salbu 1999; Abbot 1999). It is difficult to evaluate to what extent the scandals in the 1990s caused by the discovery of acts of corruption and misuse of power by representatives from many member states (Italy, France, Belgium, Spain, Portugal or even Germany and the United Kingdom) added to the alarmist rhetoric about the Mafia’s activities from Eastern countries after the end of the Cold



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War. The extravagant evaluations that ‘organized crime activities accounted for a third of global monetary exchanges’ certainly contributed to a climate of anxiety about economic and financial crime in general. Indeed, politicians were obliged to react to the concerns of European citizens in a unique context of general denunciation of fraud at European and global level. A Eurobarometer survey in Spring 1996 showed that, in answer to the question of ‘what Europe’s voters think are ‘‘high priorities’’ for the EU’, 87 per cent answered ‘fighting organized crime’ and 86 per cent answered ‘fighting drug trafficking’. So politicians had to adapt their rhetoric and political initiatives to this new concern. For all that, the idea that Community institutions should be in charge of fighting fraud has not emerged easily considering the volume and distribution of fraud in the special structure of EU expenditure. Indeed, fraud concerning administrative expenditure – only 1.4 per cent of the EU’s total budget – was trivial but proved much more significant as regards resources from European subsidies, by far the most important part of the budget under the direct management of the member states. We are thus forced to recognize that the Commission played the role of a scapegoat in the general condemnation of corruption problems, notably when the budget discharge procedures were repeatedly postponed, and more particularly during the legitimacy crisis which led to the resignation of the Commissioners. Such an interpretation, and the perception that the EU has to deal urgently with cross-border crime have been reinforced by the crisis following the attacks of September 11, as well as the Enron scandal in the United States. Indeed, it appeared that operational details of the September 11 attack were largely planned within Europe. Also, efforts to fight organized crime and issues of financial transparency became a key concern for the European Parliament. Two hypotheses explaining these developments can be suggested: either the Commission chose to play the strategy of strengthening supranational institutions – even if it meant assuming total responsibility for the crisis of confidence caused by the revelation of recurring problems of fraud in its management – or the member states, so attached to reinforcing intergovernmental judicial and police co-operation, deliberately stigmatized the Commission’s poor management and stressed the importance of new transnational crime in order to weaken the Commission and achieve their own political preferences. First hypothesis: towards reinforced institutions in the EU and EP According to the first (neo-functionalist) hypothesis, the placing of fraud on the agenda as a new problem to be addressed was made by supranational actors – the European Parliament and the Commission – who were intentionally alarmist and wished to develop a new field of competence for the supranational institutions with a view to reinforcing their activities. Indeed, the fact that the Commission systematically put the problems of fraud on the agenda during Council meetings (notably the Tampere Summit in 1999), as


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well as during parliamentary discussions of mismanagement by some European civil servants and even some Commissioners, paved the way to the creation of a new agency. With the initial task of investigating instances of mismanagement in the internal administration, the new agency progressively imposed itself not only as an inquiry agency endowed with important powers (and increasingly independent from the Commission), but also as an agency co-ordinating national sanctions. The Commission’s role as an agenda-setter and also as coordinator and legislator is also definitively strengthened in many areas, not only in the administrative first pillar, but also in the intergovernmental third pillar with significant developments in matters such as immigration or economic and financial crime which were presented both as a threat and as the result of insufficient internal security within the EU. Under the first pillar, the Council regulation which established ‘the protection of the European Communities’ financial interests’15 was first conceived to provide a legal framework for the fight against fraud led by the Community and de facto by the Commission as its executive arm. Likewise, the Council regulation concerning ‘on-the-spot checks and inspections’ conducted by the Commission for the protection of the Communities’ financial interests empowered the Commission – in practice UCLAF then OLAF – to carry out administrative investigations into member states, acting on its own initiative and responsibility. Its fields of action were greatly extended regarding its power of internal investigation into the administrative activities which were under its direct responsibility. Under the third pillar, the Commission made more significant progress as it led to promoting the necessary establishment of a general framework which paved the way to judicial integration. Though the convention on the protection of the Communities’ financial interests had not yet been ratified by a majority of member states, it dealt with the judicial dimension of fraud. Emphasis was laid on co-operation between member states and co-ordination in their investigating, judicial and sanctioning actions. It must also be added that EUROPOL was created in 1998 with the explicit task of promoting cooperation between police forces, customs authorities and other competent authorities in the member states. The Commission was openly granted an extended role as it could from then on conduct administrative investigations in the same way as member states. Though progress was less significant on legal matters, European integration was furthered by reinforced operational co-operation between police forces and other ‘policing’ bodies, improved information-gathering and processing, and heightened judicial co-operation.16 The Commission17 was from then on more concretely involved in the development of inter-state co-operation – owing to its obligation to provide technical help, or exchange information. On this basis, a first institutional compromise was reached; it confirmed the reinforcement of the third pillar with the creation of EUROJUST in March 2002, a temporary unit of judicial co-operation, composed of fifteen public prosecutors, in charge of fighting serious transnational crime. Presented as the



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judicial counterpart of EUROPOL which had taken the lead, this new form of co-operation mirrored police co-operation which was already well established; it was greeted by the Italian Justice and Home Affairs Minister as a reorientation of the European justice and security area in favour of justice. Even though this aspect appears to support the intergovernmental theoretical approach which we consider later, the Member states’ commitment to justice and home affairs matters was reinforced by numerous initiatives taken by the Commission, notably via the Maastricht Treaty which explicitly referred to the Commission’s task of reinforcing judicial co-operation. The Commission’s role was also strengthened by various European conventions – although many of them have not yet been ratified – on justice and police issues. Such developments may herald future strengthening of the third pillar towards more communitization, through the need for a corpus juris18 and the appointment of a European Public Prosecutor, suggested (and highly publicized) by the Commission in the Green Paper of January 2001, thus confirming the major influence of European institutions in the area of ‘high politics’ (Hoffmann 1966).19 In support of this proposal, the European convention relaunched the debate on the creation of a European Prosecutor’s Office in December 2002. A revision of the EC Treaty in terms of strengthening the criminal law dimension in the fight against fraud could facilitate re-examination of the institutional basis of OLAF. However, by addressing a major source of anxiety in European society (namely the rise in crime), and proposing an institutional response through the creation of a specialized taskforce to fight fraud, the Commission has made a symbolic political move, thus enabling it to increase its legitimacy and possibly restore the citizens’ trust in European institutions. Second hypothesis: shifting fraud fighting to the supranational level The intergovernmentalist (Moravcsik 1993, 1998) theoretical approach highlights the stigmatization of the Commission both as the instigator and the target in the denunciation process of the fraudulent management of Community resources. Above all, by presenting the European institutions as accountable for fighting transnational crime, member states avoid public responsibility for the lack of effective anti-corruption policy. This has been a convenient way for member states to find a culprit – which is part and parcel of such a denunciation process (Pujas 1999). Thus, member states laid the blame on the College of Commissioners, who were discredited and eventually forced to resign in March 1999; the Commissioners therefore paid a high price for the developing legitimacy crisis when it became obvious that Europe’s anti-fraud policy was a failure. In reality, some national governments were incapable – or lacked the political will – of initiating institutional reform in order to reduce mismanagement of public funds.20 Instead, they saw a window of opportunity (Lascoumes 2001; Pujas 2001) to gain public credit by taking action against the Commission which they blamed for misuse of Community funds, while they themselves were actually in charge of the management of these funds.


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Moreover, the new political priority of fighting fraud is mainly the result of decisions made by national actors regarding the European integration of national administrations in charge of domestic security matters. Indeed, fighting corruption necessarily implies the progressive integration of national judicial systems within a more global and standardized European judicial area. Fraud cannot be fought effectively in the absence of European penal legislation. However, all Community decisions on questions of penal jurisdiction have always been highly sensitive matters as they could potentially threaten national sovereignty. In matters of justice and home affairs co-operation, the states, not bound by the European directives or regulations that are instrumental in the implementation of Community policies, have kept total autonomy in such matters, which has consequently hindered the enforcement of coherent and standardized policies. The distinction between the strictly administrative competences and the penal jurisdiction of UCLAF and OLAF is far from clear, and reflects the two contrasting theoretical perspectives on European integration discussed above – namely, neo-functionalist and intergovernmentalist approaches. In practice, some national administrations engaged in the process of European integration have favoured an intergovernmental approach, yet hope to draw some advantages from it (rent-seeking). Other actors have actually been keen to develop European police and judicial co-operation. In security matters, for example, the involvement of national civil servants in transnational security networks has increased their room for manoeuvre away from the supervision of their home administrations, but has also created a new situation in terms of power and legitimacy in a national context of strong competition between security agencies.21 Needless to say, national security agencies, like the judicial police services, are often anti-European and deeply hostile to the very existence of EUROPOL and the creation of UCLAF/OLAF. This may partly explain its failure. The report which led to the resignation of the Santer Commission had clearly shown UCLAF’s shortcomings in terms of co-ordination between the various authorities in the member states. Several reasons may be put forward to account for the lack of trust in OLAF expressed by its national counterparts and interlocutors, notably ‘sensitive questions of sovereignty, lack of knowledge about UCLAF’s role, reluctance to give judicial information to a body which is part of the Commission, and probably scepticism as regards UCLAF’s competences and way of working’.22 We must also add that at least two of the most important players, France and the United Kingdom, do not seem to be ready to see the emergence of a European Prosecutor in the near future. In many ways fighting fraud at a European level is a classic catch-22 situation. On the one hand, the 1999 scandal worsened the already bad image and lack of legitimacy that have hampered the Commission ever since its creation. On the other hand, any initiative in matters of fighting fraud is likely to fail as long as there is no effective co-operation between national bodies and agencies. The European institutions, and more particularly the Commission, therefore took a high risk when they became active in this new policy area: if the results were poor it would further erode the institutions’ legitimacy. The



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audit in the aftermath of the 1999 crisis called for reinforced financial and disciplinary control. But conversely, far from bringing more transparency and legitimacy to European governance, such measures could make it more opaque. However, the dramatic events of September 11 reinforced co-operation between the judiciary, police and information services of the fifteen EU member states. Measures that had been discussed for years, but remained blocked for political and technical reasons, were now incorporated in an action plan to combat terrorism and organized crime. The plan explicitly included corruption in all the relevant texts. For example, in November 2001 a new directive on money laundering was adopted, obliging member states to combat laundering of the proceeds of all serious crime, including corruption. The European Arrest Warrant adopted in June 2002 is another illustration of the new, common European approach. Introduced to fight transnational crimes including corruption, it replaces extradition procedures and requires that an arrest warrant issued in one EU country be recognized and executed in all other EU member states. EU ministers reached political agreement on the warrant in December 2001, but the process was contentious. Italy’s Prime Minister Silvio Berlusconi agreed to the warrant only under intense pressure from other EU member states. His opposition was based on the inclusion of provisions on money laundering, corruption and fraud. Furthermore, the requirement that national parliaments ratify the warrant may delay its implementation (scheduled for January 2004) even though six states have decided to implement it so far. Such rapid improvements (as well as substantial obstacles such as the late or non-ratification of most conventions adopted by the Council) confirm that, in the present state of development of the third pillar, the member states hold the key. Our two chosen theoretical approaches present different perspectives on the problem, as both supranational actors, such as the Parliament or the Commission, and national actors have tried to hijack and exploit the denunciation of fraud to their own advantage. In the real world, a European anti-fraud policy will succeed only if a compromise between these two visions of European integration is found. Also, much will depend on the progressive evolution of the third pillar towards more communitization, especially on enlargement and the difficulties of dealing with yet more diversity, heterogeneity, and numbers of partners needed to implement such policy. Also, the elaboration of a general normative framework which may account for the emergence of European public anti-fraud policy cannot overlook a more intra-institutional approach that can explain the internal balance of power within the European institutions which prompted the evolution of UCLAF/OLAF. It is to the important interand intra-institutional matters that we now turn. INTER-INSTITUTIONAL AND INTRA-INSTITUTIONAL TENSIONS DURING THE CREATION OF UCLAF Two types of tension may account for the evolution and predicted failure of UCLAF. The treatment of cases related to instances of fraud and irregularities

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in Europe has caused tensions which have occasionally worsened between European institutions such as the Parliament and the Commission, but also within the Commission’s own agencies and bodies. UCLAF applied pressure, with the support of some MEPs, for the creation of an anti-fraud structure within the Commission. In fact, the very genesis of UCLAF may account for the diverging views and interests of the Commission and the Parliament. Besides, the creation of UCLAF and its subsequent reform into OLAF have obviously modified the balance of power between intra-Community services.


A successful outcome for both the EP and the Commission The European Parliament conducted its campaign against fraud and corruption in the management of Community funds through the Budgetary Control Committee (Georgokakis 2000).23 The initiative in this domain was therefore political. As the Parliament’s role and influence are restricted in the decisionmaking process, it is no surprise that it should have devoted resources to the limited domain of activity conceded to it; indeed, since 1977, it has played an increasing part in budgetary control activities and has used to the full its capacity to create inquiry committees. The budgetary discharge is, in fact, the main instrument of control over the budget as implemented by the Commission and is based on the annual report of the Court of Auditors and the declaration of assurance (a function which is now exercised during the whole term of office of the Commission). By using such institutional possibilities the European Parliament has gained a double advantage: the control of Community expenditure has allowed it to advertise what it regards as a weakness in the EU, but it has also made it possible for the Parliament to take on a ‘moral’ image as the guardian of good governance in the European institutions, on behalf of a European public already sensitive to problems of domestic corruption. This has helped to present the Parliament as an institution which defends European taxpayers and which can overcome its own political differences and chaotic parliamentary debates. In the 1990s, four opportunities were offered to the European Parliament to express its lack of trust in the way the Commission managed Community resources. The first episode took place in 1994 when the Parliament provided for fifty new posts in the 1994 budget for UCLAF agents, and insisted that clear supervisory responsibilities be established. It postponed the discharge procedure of the 1992 budget in order to compel the Commission to take the necessary measures. Likewise, in 1995, the Parliament used its new right to create an inquiry committee, as stipulated in the Treaty of European Union (TEU). The inquiry committee issued a report on allegations of fraud and misadministration in the Community transit system. It called for the development of the role of UCLAF as an information-gathering unit on crime, together with the creation of an ‘information exchange central office’ (which in fact now exists in OLAF) in order to help national prosecutors in their transnational legal proceedings. Again in December 1998, the Parliament



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postponed the discharge procedure of the 1996 budget following the discovery of serious irregularities in the calculation of travelling expenses within the Economic and Social Committee, during an investigation by the Court of Auditors. Then in 1999 the Parliament voted two motions of censure on instances of favouritism and nepotism by some Commissioners. In addition to the institutional opportunity offered to the Parliament to highlight its supervisory role by systematically denouncing problems of fraud and urging the Commission to provide for the necessary means to address these problems, the political context during the first quarter of 1999 may also explain the scale and timing of the crisis over financial irregularities. European elections were approaching. As Le Monde put it, ‘the opportunities offered by the ‘‘affaires’’ for some MEPs, notably from the Greens, to come to the fore, has certainly not helped to calm things down.’ 24 In the same vein, the ongoing negotiations – Agenda 2000 – on the financing of Europe up to 2006 and the reform of the common agricultural policy and the structural funds (which, combined, represent the second main source of misuse of Community funds) were an excellent occasion for the Parliament to highlight its role and positions. One of the direct consequences of this winning strategy was the postponement of the appointment of the new Commission until the election of the new Parliament. Indeed, the representatives of the member states lost ground to the Parliament when they agreed not to appoint, as initially planned, the president of the new Commission (2000–2004) before the mid-June 1999 European elections. The European Parliament was seen by public opinion as the great winner in this crisis.25 Paradoxically, the confrontation between the Commission and the European Parliament and the ensuing institutional crisis seem to have strengthened both institutions, albeit via different dynamics. The democratic legitimacy of the Parliament and its role as political counterweight have certainly been consolidated thanks to its dual role as ‘denouncer’ and initiator of anti-fraud policies. Though at first sight the new institutional balance of power seems to have been more in favour of the Parliament to the detriment of the Commission, the Commission’s initiative and management capacity were also confirmed within the first, and more particularly the third, pillars, thanks to the reform of UCLAF which then became OLAF. Contrary to the commonly held opinion that the Parliament was the great victor in the 1999 crisis, the fact that the report, written by the Committee of Independent Experts, led to the resignation of the Santer Commission actually weakens the theory of a binding democratic control by the European Parliament. The creation of the Committee of Wise Men was indeed the result of a compromise between the Parliament and the Commission, in order not to further exacerbate tensions between the two institutions. It confirmed the highly symbolic position and authority of the Commission as the embodiment and defender of Community interests. Likewise, the first motion of censure was intended to give new legitimacy to the Commission, in agreement with the majority Socialist group. Lastly, the very critical report on UCLAF which was issued during the debate on the


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motion of censure was aimed at reinforcing the governmental position of the Commission with a heightened and reformed role given to UCLAF/OLAF within the Commission. All these elements tend to confirm the neo-institutionalist approach according to which, thanks to the emergence of the idea of the absolute necessity for anti-fraud policies, Community institutions have been strengthened and vested with new powers. The creation of UCLAF was the result of the confrontation between the Parliament and the Commission, but the emergence of this new agency also generated competition within the internal services of the Commission – which partly explains its failure and subsequent recent reform. Indeed, internal competition between the Commission’s and UCLAF’s services is the origin of a predictable failure. The tensions between the internal financial control services of the Commission and UCLAF reveal the ambiguous dimension of their supervisory function and have not really been addressed by the subsequent reforms initiated by the new Commission. The tensions were also obvious between the personnel departments and UCLAF on the questions of sanctions against deviant civil servants, and performance incentives intended to lessen administrative mismanagement which was at the origin of irregularities or fraud. Competition between DG XX and UCLAF Competition appeared at the very inception of UCLAF and was the consequence of rivalries between UCLAF’s investigation services for the detection of administrative and/or financial irregularities and the Commission’s financial services (DG XX). UCLAF was obliged to work from case files drafted by the audit division of DG XX in order to establish instances of fraud. In fact, the auditors’ expertise was very important for the drafting of fraud files as UCLAF staff lacked expertise in that domain. Such encroachment between the mission of the services in charge of internal auditing and those of the anti-fraud unit triggered competition strategies which proved detrimental to effective antifraud fighting. ‘The de facto exclusion of DG XX was really sterile in so far as the auditors’ expertise remained essential for OLAF investigations.’ 26 Likewise, the DG XX services rigidly retained information because they felt UCLAF had no legitimate right to have access to information which DG XX had gathered, in terms of expertise, allocations27 and staff.28 In their report, the Wise Men listed a number of grievances against UCLAF. They criticized the fact that an excessive number of UCLAF staff were temporary agents, which created endless turnover and a lack of continuity in the organization. The Wise Men also commented that ‘the staff had not been selected carefully and the rules on the confidentiality of information were not complied with in a coherent way.’ It was also noted that, as for documentation or investigation follow-up, ‘there was no standardized procedure, nor was there any measure guaranteeing that case files followed norms demanded by judicial procedures in the Member States. Electronic resources were not entirely operational either,



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or lacked efficiency, and the concrete use of databases was therefore very limited.’ Finally, they observed that ‘the co-operation between the Member States was hampered by the attitude of the Commission about the privileges and immunity of EU staff.’ It was left to a member of the Commission’s financial control unit – out of desperation at not receiving any response from his supervisors – to denounce publicly to politicians and the media the abusive practices of some services and civil servants on whom he had drawn up detailed reports. His explicit and irrevocable criticisms of UCLAF made a major contribution to the ensuing crisis (Van Buitenen 2000). Even if the auditors’ role was not to detect and investigate criminal acts, UCLAF was not granted the necessary means to remedy such shortcomings. Indeed, the ‘criminal’ jurisdiction of UCLAF depended on collaboration with the national authorities which were endowed with the necessary powers of investigation. It can therefore easily be understood that rivalry developed between both services, given the fact that the Anti-Fraud Unit had originally been integrated in DG XX services (and in DG VI, XIX and XXI as well) but had progressively become more independent (in 1994 and 1995), thanks to the centralization of its services and its more numerous staff, to the detriment of DG XX – though the Unit officially remained a structurally dependent unit within the DG. In the aftermath of the 1999 crisis, the Court of Auditors, an external audit unit, produced reports which were clear and to the point, but it appears that only one branch of the budgetary authorities, the Budgetary Control Committee, used them efficiently. In contrast, the audit and control mechanisms within the Commission did not function properly, for seemingly political reasons. The small size of the audit unit within DG XX did not enable it to examine all cases, and it was incapable of developing the necessary procedures to prevent further irregularities and instances of fraud. The creation of OLAF therefore offered the opportunity to highlight the weaknesses of the financial control units within the European institutions and more particularly within the Commission. We must also stress the ambiguous situation of UCLAF/OLAF regarding the control function of the highly bureaucratic European institutions. The UCLAF investigations were of an inquisitorial (as a unit ‘hunting down’ fraud) and ‘delegitimizing’ nature for the services under scrutiny which objected strongly to what they considered as interference. The anti-fraud unit was accused of conveying a negative image of the Commission services. Thus, the Commission services were very reluctant generally to collaborate with an agency with such weak legitimacy.29 Several operational services with which the Committee of Independent Experts had contact were critical about the way UCLAF worked, while others saw its activities as a concrete obstacle to the resolution of some cases – a view confirmed by some UCLAF staff interviewed over the period 1994–95.30 This critical stance was reinforced by the fact that the agency, which was under the Commission’s Secretariat General, was often perceived as preventing any


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presentation of compromising information to other services or arenas. Likewise, the August 1998 report of the Court of Auditors on UCLAF revealed many problems in matters of internal and external communication and collaboration with other services. For the agents of the other services of the Commission, UCLAF was seen as a very secretive unit which might even distort information on fraud, without any legal redress. The report also revealed that ‘far from considering UCLAF as an ally in the fight against fraud, some services perceive it as a rival with which only minimal and essential collaboration should be maintained.’ 31 From this viewpoint, UCLAF appeared to produce results quite opposite to those originally intended. Some services have even contested its monopolistic position regarding information about fraud. UCLAF was sometimes considered as some sort of censor which would arbitrarily decide on fraud issues. This lack of trust was intrinsically linked to the creation of UCLAF, and its staff found it difficult to restore its image as a positive and impartial control unit. OLAF: an ambiguous step towards a European area of freedom, security and justice ‘OLAF is the fruit of exceptional circumstances in the aftermath of a scandal. It reflects the necessity of restoring credibility.’ 32 Born in a context of institutional crisis, it was created to bring renewed legitimacy to the Commission and was granted a dual statute which aimed at giving the Office the necessary operational independence, desired by the political authorities, while it remained within the Commission for its budget and administration. In fact, OLAF’s many problems are mainly due to this semi-autonomous state. OLAF is an administration with investigative powers but it lacks a legal personality, has no recognized power to impose penalties and is overseen by a ‘Supervisory Committee’ designed to control and guarantee its independence. As a consequence of such deficiencies, the legitimacy of OLAF is regularly questioned by national and European institutions because of the lack of guarantees regarding the objectivity and transparency of its investigations as well as the deficient protection of the fundamental rights and freedoms for the personnel investigated. (There are no guidelines about the conduct of investigations or the collection of evidence and very few investigations lead to action before a court.) The end result is that relationships between OLAF and the other European institutions and organs remain problematic. With regard to the European Parliament, when the request for information is designed to put the Commission under political pressure, the provision of documents and information has remained the focus of serious tension.33 In particular, the circumstances of the investigations (begun in February 2002) into the alleged misuse of EU funds donated to the Palestinian Authority illustrate the ambiguity of the institution designed to investigate fraudulent practices. Indeed, in this case (probably influenced by the memory of the 1999 crisis) three different initiatives have been taken at the European level. In a first stage, the European Parliament has taken up the issue, with 170 MEPs signing a petition calling for a parliamentary



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investigation. The day after this petition, OLAF announced the start of a new investigation. Finally, the Foreign Affairs Parliamentary Commission and COCOBU (French acronym for the Budgetary Control Committee) proposed setting up a working group to control the use of European subsidies by the Arafat administration. Obviously, each of these institutions judged itself the most capable of investigating such issues, but it again opens the debate about who is the legitimate European actor to tackle the problem of the misuse of EU funds. Thus, the question has not been resolved even with the creation of OLAF. With regard to OLAF’s position within the European Judicial Area and its new components EUROPOL and EUROJUST (added to the previously created European Judicial Network), it is symptomatic that the decision to set up these institutions was not planned in the light of the relationships between them. Only very recently have agreements been made for co-operation between the Commission (and through it OLAF) and EUROPOL,34 and EUROJUST and OLAF.35 These bodies’ respective tasks have not been clearly defined even though their powers have been extended and reinforced. Finally, they were several disputes about the new inter-institutional internal investigation system which illustrate the lack of legitimacy of OLAF within the European institutions. The European Central Bank (ECB) and the European Investment Bank (EIB) each adopted an internal decision incompatible with OLAF’s investigative power which covered all the institutions of the EU. Court action was launched by the Commission through the European Court of Justice. The opinion of the Advocate-General (presented in October 2002) recommended the annulment of the decisions of the ECB and EIB, which has been approved by the ECJ in July 2003. The question of whether MEPs’ immunity protects them from action taken by OLAF has also been brought before the Court of First Instance (in February 2002).36 The lack of support by other European agencies which have not yet agreed to co-operate with OLAF contrasts with the multiplication of sub-bodies created to support OLAF in its task. At least three new institutions have been set up by the Commission since 1992: the Investigation and Disciplinary Office (IDOC) with the function of conducting administrative investigation and preparing disciplinary procedures,37 the creation of independent ‘Authorities specializing in financial irregularities’ for each institution,38 and finally the OLAF Anti-Fraud Communicators Network (OAFCN) whose aim is to create dialogue and work to inform, raise awareness and develop a ‘prevention culture’ among the professional circles and national authorities.39 It is difficult to imagine how such a mosaic of bodies will be able to co-ordinate their action efficiently, not only at the European level but also in relationships with the myriad of national institutions aimed at fighting crime. The complexity of the institutional tools created by the European institutions is in stark contrast with the need for simplicity and clarity in order to make an anti-fraud policy operational and efficient. To sum up, OLAF, which was created to protect the European communities’ financial interests, notably under the first pillar, comes rather under the

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intergovernmental framework of the third pillar. Indeed, as long as the question of the evolution of the third pillar towards more communitization is not addressed – implying a more concerted and binding management of European justice and policing policies – all forms of anti-fraud activity are probably bound to fail. The role of the European Parliament and the Commission may be reinforced because of their commitment to anti-corruption fighting, but this is a short-term outcome: the European institutions remain prisoner of the prevailing intergovernmental doctrine and they run the risk of being unable to offer satisfactory results and eventually resuming their former role of a scapegoat, should a new crisis occur. CONCLUSION ‘The protection of the communities’ financial interests’ and anti-fraud fighting: would they provide a new legitimacy for European integration? The creation and institutionalization of this new paradigm in public action, ‘the protection of the European communities’ financial interests’, offers a new tool that may be used to heighten and renew European governance as championed by the Commission. More widely, the emergence of European anti-fraud policies brings into question the integration process of the member states in new domains of Community action. They are not trivial as they pertain to security and justice affairs, the last sanctuary of national sovereignty against European integration. By promoting anti-fraud policies, the EU – spurred on by the European Parliament and the Commission – has clearly adopted a strategy of judicial integration, following on from economic integration. As is the case with European immigration policy, anti-fraud policies highlight the turning point in the development of the new control paradigm under the third pillar, which is currently rather weak. The development of an anti-corruption strategy is therefore linked to the realization of a much bigger project, i.e. the construction of a single judicial area in Europe. In that respect, anti-fraud policy is both a means and a strategy to reinforce the legitimacy of European governance in the present critical situation in the construction of Europe. It is symbolic as it embodies a political will to strengthen European institutions, while means and resources still depend on intergovernmental decisions under the third pillar. We cannot, therefore, say if the introduction of this new policy domain (the fight against abuse of Community funds), which is based on a discrepancy between the objectives (the strengthening of the Parliament and the Commission) and its means (intergovernmental decisions under the third pillar), will eventually contribute to making good the deficit in the legitimacy of the European institutions. Address for correspondence: Ve´ronique Pujas, Research Fellow CNRS, CIDSP, Institut d’Etudes Politiques BP 48, 38040 Grenoble Cedex 9, France. Tel: 04 76 82 60 45. Fax: 04 76 82 60 50. email: [email protected]


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NOTES 1 The European Convention’s working group on ‘freedom, security and justice’, Conv. 426/02, proposes substituting the communitization and intergovernmentalism approaches with a clearer distinction between legislation (legal instruments, legislative procedures, implementation in large part to be aligned with Community procedures law) and reinforced co-ordination of operational collaboration at the European level. http://register.consilium.eu.int/pdf/en/02/cv00/ 00426en2.pdf 2 Developments in December 2001 in Italy (not included in this article) regarding the failure to agree on the European arrest warrant, after the events of September 11, tend to confirm the hypothesis that the fight against corruption is a sensitive issue for domestic politics. Some member states, without severe problems of corruption in their political life, will be much more receptive to a European policy to fight corruption, whereas countries with corruption problems involving the political e´lite in Italy and France, for example, will be more reluctant to implement European norms. 3 Jan. 1984, Doc. 1–1346/83. 4 The Bosch Report, A4-0297/98, 22 September 1998, p. 10. 5 Parliamentary Inquiry Committee on the transit system. 6 A4-0097/1998 – resolution informing the Commission about the reasons for postponing the discharge decision on the execution of the EU general budget for the year 1997, adopted on 30 March 1998. 7 OJC C348 of 18 November 1997, Court of Auditors covering 1996, Vol. 2. 8 COM (87) 572 and COM (87) 891. 9 The Common Transit Procedure which permits goods to enter the territory of the Union and its EFTA partners (and that of Poland, Hungary and the Czech Republic) without paying customs duties or excise, provided that they are reexported, has been the subject of serious frauds which had an impact on public budgets. In ‘Fraud and the EU Budget’, DG Research, EP 167.114, p. 9. 10 OJC C316 of 27 November 1995, EP Resolution of 19 September 1996, OJC C320, 28 October 1996. 11 Reg. no. 2988/95. 12 The first protocol on 27 September 1996 defines corruption that is detrimental to the Community’s financial interests, and the obligation by the member states to fight and punish it. The protocol on 29 November 1996 is about the interpretation of the PIF Convention and of its protocols by the ECJ. 13 The second protocol on 19 June 1997 is about the obligation of the member states to fight money laundering, and provides for the responsibility of legal persons. It makes provision for the seizure and confiscation of crime-related instruments and revenues. It also makes provision for the rules governing cooperation between the Commission and the member states, and for the protection of data. 14 In the mid-1990s and in the context of ‘globalization’ awareness, the World Bank and the IMF began to devote more resources to research into the economic impact of corruption. Several leading economists including Vito Tanzi, Paulo Mauro and Daniel Kaufman produced IMF and Bank publications, detailing empirical evidence about the costs of corruption to international business and development efforts. 15 Council Regulation 2988/95. 16 Notably with the creation of liaison judges for each member state with the task of co-ordinating judicial co-operation. 17 We can therefore infer that the Commission, thanks to the mobilization of Community institutions on fraud problems, is taking the initiative in taking on

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18


19 20 21 22 23

24 25 26 27

28 29 30 31 32 33 34 35 36 37 38 39


the role of agenda-setter that the observers of the third pillar deplored so much. This hypothesis is confirmed by the directive drafted by the Commission on 23 May 2001 which aimed at ensuring the criminal protection of European funds. According to this directive (adopted according to the co-decision procedure by the Council and the European Parliament), the member states were to adopt common definitions of offences (fraud, corruption, money laundering) that are detrimental to the Community’s financial interests, together with common rules in matters of accountability, sanctions and co-operation with the Commission. This directive is interesting as it made provision for the control mechanisms of the first pillar. Corpus juris would introduce an autonomous code for the investigation, prosecution and punishment of fraud and other crimes against the Community’s finances. This code would apply in a single legal/judicial area comprising all member states. High politics issues are those which touch on the fundamental definition, identity and security of the nation-state. Cf. the failure of some member states to prevent and punish public funds evasion through fraudulent management of public contracts, invitations for tenders, subsidies. Ibid. Report of the Committee of Wise Men, ch. 5, p. 20. Didier Georgokakis explains the denunciation role of the Budgetary Control Committee in a number of ways: it is not a prestigious parliamentary committee and it consequently gathers members from minority groups such as the Liberals and the Greens; it was under the presidency of a German member of the European People’s Party at a time when pressure on the Commission’s budget was strong and the accused Commissioners were socialist. Le Monde, 20 January 1999. Ibid. Report of the Committee of Wise Men. ‘UCLAF, as a statutory administrative body, does not have the same legal arsenal of attributions as a police force, which is necessary to carry out more thorough work than than of the auditors’ (Report of the Committee of Independent Experts, p. 21). We may add that the creation of OLAF has not solved the problem. Before 1995: 25 customs inspectors, 15 agricultural inspectors, 8 tax inspectors, 8 financial inspectors/accountants, 7 police officers; i.e. a total staff of 163. Interviews with UCLAF/OLAF staff conducted in December 2000. Ibid. Report of the Committee of Wise Men, ch. 5, p. 20. Interview with a member of the OLAF staff, December 2000. Supervisory Committee, Report September 2001–June 2002, 18 June 2002, p. 52. 18 February 2003, www.europol.eu.int On 14 April 2003, OLAF and EUROJUST signed a memorandum of understanding putting in place the modalities for their future co-operation. http://europa.eu. int/comm/anti_fraud/press_room/pr/index_en.html There is currently an appeal to the Court of Justice against the judgment of the Court of First Instance. 2 April 2003, Commission Report, Evalutation of OLAF, COM (2003) 150 Final, p. 21. Ibid. p. 22. Ibid. p. 29.

REFERENCES Abbot, J.P. (1999) Offshore Finance Centres and Tax Havens: The Rise of Global Capital, London: M.H. Hampton.



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Georgokakis, G. (2000) ‘La de´mission de la Commission europeénne: scandale et tournant institutionnel (octobre 1998–mars 1999)’, Culture et Conflits 38–9: 39–72. Hoffmann, S. (1996) ‘Obstinate or obsolete? The fate of the nation state and the case of Western Europe’, Daedalus 95(4): 862–915. Lascoumes, P. (2001) ‘Change and resistance in the fight against corruption in France’, French Politics and Society 19(1): 49–60. Moravcsik, A. (1993) ‘Preferences and power in the European Community: a liberal intergovernmentalist approach’, Journal of Common Market Studies 31(4): 473–524. Moravcsik, A. (1998) The Choice for Europe: Social Purpose and State Power from Messina to Maastricht, Ithaca: Cornell University Press. Nugent, N. (1999) The Government and Politics of the European Union, London: Macmillan Press. Pujas, V. (1999) Les scandales politiques en France, en Espagne et en Italie. Constructions, usages et conflits de le´gitimite´, Ph.D., Institut Universitaire Europeén, Florence (Publication is forthcoming). Pujas, V. (2000) ‘Les pouvoirs judiciaires en France, en Espagne et en Italie dans la lutte contre la corruption politique’, Droit et Socie´te´ 44/45: 41–60. Pujas, V. (2001) Les dispositifs nationaux de lutte contre les de´linquances économiques et financie`res. Le cas italien, Paris: Revue de l’Institut des Hautes E´ tudes sur la Sećurite´ Inte´rieure. Pujas, V. and Rhodes, M. (1999) ‘Party finance and political scandal in Italy, Spain and France’, West European Politics 22(3): 41–63. Salbu, S.R. (1999) ‘Battling global corruption in the new millennium’, Law and Policy in International Business 31(1): 47–78. Van Buitenen, P. (2000) Fraudes a` la Commission Europeénne, Paris: Castells-Labor.



Comitology: who watches the watchmen? Renaud Dehousse

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Institut d'études politiques (Sciences Po) , Paris, France Published online: 04 Feb 2011.

To cite this article: Renaud Dehousse (2003) Comitology: who watches the watchmen?, Journal of European Public Policy, 10:5, 798-813, DOI: 10.1080/1350176032000124096 To link to this article: http://dx.doi.org/10.1080/1350176032000124096



Comitology: who watches the watchmen?


Renaud Dehousse

ABSTRACT This article discusses the transformations which have taken place in perceptions of the ‘comitology’ system at European level. Whereas committees were initially conceived of as an instrument of intergovernmental control over the Commission, the evidence suggests that their functioning is generally consensual and that the Commission is among the most influential actors in committees. This explains the recent shift in the discussions over the committees’ control function: the key issue is no longer how to preserve the Commission’s autonomy from committees’ interference, but rather how committees themselves can be kept under control, and by whom. KEY WORDS Comitology; European Commission; European Court of Justice; European Parliament; institutions; parliamentary control.

The body of literature looking at the role of intergovernmental committees in the European Union (EU) system has expanded significantly in recent years (Joerges and Vos 1999; Pedler and Scha¨fer 1996; Christiansen and Kirchner 2000). This may easily be explained: the status of what is known as ‘comitology’ in Euro-speak was at the heart of heated institutional discussions between the Commission and national governments at the time of the 1992 programme, and the political salience of issues debated within committees has increased as the EU has expanded its activities in the framework of risk regulation. The bovine spongiform encephalopathy (BSE) crisis, in particular, has brought to the fore severe weaknesses in the structure and operation of some committtees, giving rise to a discussion over the proper way to regulate their work. In many respects, the comitology debate highlights a shift in the role of committees in EU policy-making. Initially conceived of as a control device – the eye and the mouth of national governments, the primary task of which was to supervise the ‘executive’ activities of the European Commission – committees have long been regarded as a reflection of the intergovernemental character of the European Community (EC)/EU.1 As such, they represented a Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124096


R. Dehousse: Comitology: who watches the watchmen?

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key element in a European brand of ‘mixed government’. Yet, recent evidence appears to suggest that committees have evolved into fairly autonomous creatures, whose decision-making style is largely consensual. While this evolution may be welcome from the standpoint of efficiency, it can also give rise to problems of its own: whom do committees represent and to whom are they accountable? These questions are all the more important given the fact that a large number of sensitive decisions are taken in the so-called ‘executive’ phase. To a large extent, this could be seen as a mere transposal at EU level of a problem common to most governments, where the overall weight of bureaucratic elements is on the rise. Indeed, as we shall see, the responses envisaged to keep committees under control and to preserve the democratic character of decision-making are often similar to those which are contemplated at domestic level: restore the primacy of the legislature, grant more powers to ‘stakeholders’ or affected parties, provide for some kind of judicial control. The mushrooming of control devices at European level is far from being without equivalent in our national systems. However, the situation may be more complex at the European level, given the absence of any form of representative government. In such a context, it might be argued, free-wheeling bureaucratic structures are even more difficult to accept from a normative standpoint, since their existence may feed citizens’ feelings of alienation with respect to a system in which their voice is rarely heard. This article attempts to shed light on these issues by discussing the transformations which have taken place in the role of committees, and the reactions these have prompted at European level. It is organized as follows: section 1 starts by recalling the functional reasons which have led to the emergence of the phenomenon known as comitology. Section 2 discusses evidence of the consensual nature of committees’ work and the shifts this may have prompted in the behaviour of key institutional actors. Sections 3 and 4 review the main techniques that have been considered in recent times to keep committees under control: parliamentary oversight, and the various procedural devices which aim to enable stakeholders to make sense of, and possibly react to, decision-making by committees. The coexistence between these various control mechanisms is then discussed in the conclusion. 1. GOVERNMENT BY COMMITTEES IN THE EU Comitology, like any form of governance, must be analysed in light of the functional reasons that have underpinned its development. Like much modern legislation, Community legislative rules are often incomplete. The reasons for this are manifold. The complexity of the Community legislative process makes it unwise to try to decide on everything at the legislative stage – even assuming that this would be posssible, which is not always the case. It may also be more expedient politically to defer contentious items to a subsequent stage of the policy process. Last but not least, the technical character of the issues addressed may require a further input from scientific experts. A similar need may also


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arise when basic rules must be adapted to changing conditions, a common situation in an era of rapid technological change. Community legislation must therefore often be supplemented or updated by ‘secondary’ rules. In addition, in some areas, its actual application may require centralized decisions: this is notably the case when Community funds are distributed (e.g. in the framework of research and development programmes) and when producers seek a European-level authorization for their products, as is now possible in relation to certain kinds of pharmaceuticals (Council 1993). Although Article 155 of the EC Treaty provided from the outset that the Commission could be entrusted with implementation powers, it was soon perceived that committees, mostly composed of national experts, were necessary to assist the Commission in this task. This innovation was dictated not only by national governments’ wish to keep an eye on the Commission, but also by the technical character of many decisions. The Commission can only count on a small staff – roughly equivalent in number to that of a middle-sized European city – and therefore does not always have the expertise needed to deal with the thousands of issues delegated to it. Moreover, national officials, on whose shoulders the bulk of the day-to-day implementation of EU policies rests, are often in a privileged position to assess their impact. ‘Street-level bureaucrats’ may develop an expert view on the effectiveness and efficiency of EU rules. It therefore makes sense to provide for specialized fora in which national and European experts may confront their views. According to Commission data, there are today some 244 ‘comitology’ committees, i.e. committees overseeing the execution of EU rules by the Commission, as opposed to consultative or scientific committees. Their activity covers the whole range of EU policies, with peaks in core areas, such as agriculture (367 meetings in 2000), health and consumer protection (122 meetings), taxation and customs unions (110 meetings). The figures also indicate that a relative majority of committees (109 out of 244) consists of regulatory committees, the primary task of which is to assist the Commission in the drafting of ‘measures of general scope’, according to the latest framework decision on comitology. Yet it is in agricultural policy, where management committees are in large numbers, that committees are most frequently consulted (1,889 consultations in 2000, against 512 for customs unions and taxation, or 449 for health and consumer protection; see Commission 2001c: 8–11). Such a dense web of contacts suggests the existence of a system of co-administration in which the national and European administrations de facto share responsibility for the implementation of EU policies. Although comitology is at times depicted as a kind of institutional hydra, it is to a large extent a natural development. Any system of two-tiered government, particularly when it opts for decentralized implementation of rules adopted at central level, as has been the case in the EC, will be inclined to develop structures of this kind, as can be seen in the emergence of ‘executive federalism’ in Canada (Smiley 1980) or of Politikverflechtung in Germany (Scharpf et al. 1976). This may be worth recalling since in its White Paper on governance the


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Commission seems to be reverting to its early hostility to comitology, claiming for itself the main responsibility for executing policies and questioning the need to retain existing comitology structures (Commission 2001b).2


2. INTERGOVERNMENTAL CONTROL OR DELIBERATIVE BODIES? Whereas the procedures regulating relationships between the Commission and these committees have varied a lot, there is broad agreement on a number of points. First, from a legal standpoint, committees are viewed as a mere control device and are deprived of decision-making powers: their power is limited to delivering opinions on draft implementation measures. The final word rests either with the Commission or, in the case of disagreement between the latter and the relevant committee, with the Council. This enabled the European Court of Justice (ECJ) to rule that the management procedure, for instance, was not contrary to the institutional balance established by the Treaty (ECJ 1970). Thus, committees are widely seen as the instrument of a principal– agent relationship between the Council and the Commission. In the same ruling, for instance, the ECJ argued that [t]he function of the management committee is to ensure permanent consultation in order to guide the Commission in the exercise of the powers conferred on it by the Council and to enable the latter to substitute its own decision to that of the Commission.3 Finally, clear limits are supposedly assigned to committees’ powers: according to the procedures established by the Treaty, ‘basic elements’ of the matter to be regulated must be decided by the Council itself; the committees are supposedly confined to implementation issues (ECJ 1970: para. 6). Such an approach is symptomatic of a traditional understanding of the dynamics underpinning the integration process. Not only does it hold legislative procedures to be the most legitimate form of decision-making, in line with a widespread view of public policy, but it attaches great importance to the necessity of achieving a balance of power between the Commission and national governments (which are implicitly regarded as unitary actors acting in a cohesive fashion).4 Institutional politics have shown that this view was shared by almost all the actors active on the European scene. The Commission has long fought against the most restrictive of the committee procedures, notably the contre-filet variant of the regulatory committee procedure, which it regarded as a burdensome interference in its implementation powers. The Single European Act’s failure to simplify comitology procedures was one of the main reasons for the Commission’s initial reservations concerning that Treaty (Ehlermann 1987). During the Delors years, the Commission made no secret of its loathing of comitology. For its part, the European Parliament has repeatedly declared its aversion to a system that it perceived to be an undue restriction of the


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Commission’s regulatory powers (Bradley 1997; Hix 2000). Of course, this position was largely explained by the fact that it enjoys more influence over the Commission than over the Council of Ministers. Thus the Parliament has frequently used its powers to oppose overly stringent procedures: the first instance in which a Council’s common position was rejected in co-decision procedures arose because of a dispute over the proper implementation procedure, and similar disputes have led to the failure of several draft directives.5 Similarly, in the post-Maastricht years the European Parliament brought several cases before the Court of Justice when it deemed its prerogatives to be threatened by decisions of other institutions on implementation procedures.6 Conversely, the member states’ frequent insistence on imposing stricter procedures, notwithstanding their own commitment to favour advisory committees for internal market legislation,7 illustrates their unwillingness to give free rein to the Commission. Thus, all the main institutional actors appear to share the same vision of comitology as a rather traditional mechanism of intergovernmental control, even though their evaluations of the system diverge radically: the Commission, generally supported by the European Parliament, tends to perceive comitology as an interference in the executive powers which it reckons it should have,8 and which the Council, wary of an erosion of member states’ prerogatives, is reluctant to bestow on it. As is known, this fundamental disagreement has been only partly attenuated by the two framework decisions that have attempted to streamline comitology procedures (Council 1987, 1999). Yet, turning to the actual operation of the system, there is no shortage of evidence to present a radically different picture of the very same phenomenon. While official discourse would lead one to expect systematic confrontations over the proper role of committees, day-to-day reality seems to have been much more consensual. Of the thousands of opinions submitted by committees in the period between 1993 and 1995, only six cases were referred back to the Council, and none of these led to a failure to decide (Commission 1995: para. 52). The Commission’s first report on the working of the committees, published in conformity with Decision 1999/468 to enhance the transparency of committee procedures, gives a similar picture: Out of a total of 2,838 instruments submitted to the committees in 2000, the Commission failed to obtain the necessary majority in only six cases, i.e. approximately 0.2 per cent of the total (Commission 2001c: 6). Moreover, accounts of committee members suggest that voting tends to be a rare event, and that the Commission – which chairs committee meetings – exerts considerable influence over their work (Buitendijk and Van Schendelen 1995). Naturally, this does not rule out the possibility of one government defending its ‘national’ interest in this framework. Yet the image of a Commission held on a leash by national representatives clearly contrasts with the evidence available. Empirical research has depicted committees as peer structures in which the quest for consensus is a prevailing concern. In a now famous contribution, Joerges and Neyer (1997) have



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suggested a radically new vision of comitology as a forum for ‘deliberative politics’ in which all participants engage in the search for the common good. Interestingly, there has been a change of attitude in recent years, even among European institutions. Once systematically critical of committees, the Commission has gradually adopted a more conciliatory tone. In its proposal for a new framework decision on comitology following the Treaty of Amsterdam (Commission 1998), the Commission deliberately omitted any provision aimed at enhancing the transparency of comitology proceedings, lest (it was said) this alter the quality of interaction with national officials.9 Notwithstanding a return to a more classical anti-comitology posture – of which the White Paper on European governance mentioned earlier is but an example – in the Prodi years, the Commission seems to accept that ‘the Committees’ work is characterized by a high degree of consensus’ (Commission 2001c: 7). This might explain why it has often been prepared to agree with the Council on the choice of (formally) strict forms of committee control, notwithstanding its proud declarations to the contrary (Dogan 1997). The consensual nature of the exercise undoubtedly has positive aspects, if only because it lessens the risk of institutional conflicts and provides for the smooth functioning of the EU regulatory system. Yet it brings its own set of problems. In a period of widespread mistrust of technocratic structures of all kinds, consensual deliberations between well-intentioned experts, meeting behind closed doors to avoid unwanted interference, may easily be resented as collusion between loathsome technocrats. If intergovernmental control mechanisms no longer fulfil the task for which they have been established, and if comitology has indeed evolved into a freewheeling transnational structure, the key question becomes: who controls this structure, and how? 3. THE PARLIAMENTARY AVENUE Parliaments are of course natural candidates to control the growing powers of bureaucratic structures. The EU is no exception to the rule: the European Parliament’s ambitions seem to have increased in parallel with the emergence of its legislative profile. Since the introduction of co-decision in 1993, it has expressed a growing interest in the oversight of implementing measures. It has strongly opposed management and regulatory committees, which it regards as a way of circumventing its newly acquired legislative powers: in the years that followed the introduction of co-decision, comitology was an issue in a large number of the dossiers that were subjected to the conciliation procedure. Disagreement over the proper implementing procedure was also at the root of Parliament’s rejection of the directive on voice telephony – the first time that Parliament used its co-decision prerogatives to reject a Council common position. There are conceivably several ways in which the European Parliament could become more closely involved with the decisions currently being taken within the comitology framework. A first approach would suggest that the current


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balance between legislation and administrative decisions be altered in order to ensure that the most salient policy decisions be taken as legislative measures. A return to legislative policy-making is a technique widely advocated in order to combat the growing influence of bureaucracies (Lowi 1979). It would certainly be historically incorrect to describe comitology as having robbed the European Parliament of its legislative prerogatives, as comitology predates Parliament’s rise to the status of a fully-fledged legislature. However, Members of the European Parliament (MEPs) have consistently called for a clearer delineation between decisions that can be taken through comitology and those that require a proper legislative procedure (Bradley 1997: 23; Hix 2000), a position that underlines Parliament’s support for a clear hierarchy of Community acts. This view also finds support in the case law of the European Court, where the need for clear demarcation between legislative and implementing measures was underlined long ago (ECJ 1970). However, there seem to be functional limits to what can be achieved along these lines. As indicated above, it is not always possible for legislation to anticipate all the problems that may arise in the implementation phase. Parliaments may lack the time or the necessary expertise to solve all problems in advance, and they may find it expedient to delegate part of the problemsolving task to implementing agencies. Moreover, the borderline between policy choices and implementation ‘details’, between legislation and administration, is often blurred when scientific or technical choices must be made. Prior to the BSE crisis, who would have thought that animal feed was an issue that would gain considerable public attention? Parliamentary control over the executive seems equally difficult to adapt to the specific features of Community governance. While at national level, parliamentary control over the administration is a by-product of its authority over the cabinet via the institution of ministerial responsibility, no such transmission belt exists at European level. Although Parliament has gained considerable power over the Commission in the post-Maastricht years, formally comitology committees are not under the Commission’s authority.10 The vertical chain of command thought to exist at national level (parliament– executive–bureaucracy) is broken at European level, where delegated legislation is, at least partly, in the hands of networks of national experts. The European Parliament’s role must be adapted to this network-based reality if it is to be of more than symbolic relevance. Parliament’s response to this structural difficulty has been to put pressure on the Commission, as the latter plays a leading role in implementation procedures, and appears to be extremely influential in comitology committees, as was indicated earlier. Parliament has also at times expressed an interest in being more directly involved with the work of committees, for example, by having its own observers attend their meetings (Bradley 1997: 234). This proposal raises a delicate but fundamental issue: in a system where influence appears to be directly related to the degree of expertise enjoyed by the various participants in the debate (Eichener 1992), what can the impact of elected



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representatives, namely politicians, be? The European Parliament could set up its own expert networks to control the work of committees but, in terms of legitimacy, the ‘value-added’ of another layer of experts would be rather thin. Rather than fuse expert discussion and political choices, would it not be preferable to limit the politicians’ role to a number of basic policy choices and to grant them the right to intervene when issues they deem fundamental arise in the implementation phase? To be meaningful, such a scrutiny process would require at least two things: access to information, and the ability to process it. Since the agreement signed in 1987 by the then presidents of the Parliament and of the Commission (and therefore referred to as the Plumb–Delors agreement) the Parliament must be notified by the Commission of most draft implementing measures. These are then to be forwarded to the responsible parliamentary committee so that it can voice its concerns whenever necessary. The framework decision on comitology adopted in June 1999 has gone further in this direction. It is now formally recognized that Parliament must be informed of committee proceedings on a regular basis. To this end, it must receive agendas for committee meetings, information on committee membership and on the outcome of meetings, as well as draft measures submitted to committees pursuant to a basic instrument adopted according to the co-decision procedure.11 As regards this latter category, the European Parliament can even ask the Commission to review a draft measure when it deems it would exceed the implementing powers provided for in the basic instrument.12 When one knows how sensitive the Commission has become to the humours of the assembly (Dehousse 2000), there is little doubt that such ‘invitations’ will be considered with great attention. Parliament’s recent thinking seems to favour an improvement of its oversight powers. Rather than systematically participating in the adoption of implementing legislation, it claims the right (on a par with the Council) to step in whenever it feels a political input is needed.13 Even if this were to occur, however, a question would still remain: how should Parliament organize itself to process the information it receives on the work of committees, and react if need be? Can it effectively scrutinize the hundreds of decisions adopted each year by comitology committees, given its heavy agenda and complex organization? Do MEPs have the relevant expertise to master decisions which are often highly technical? In this respect, the implementation of the various agreements concluded by the Parliament and the Commission suggests that it might be wrong to expect too much from these control mechanisms. Entrusting supervision to Parliamentary committees, as was decided in the wake of the Plumb–Delors agreement, is probably a sound division of labour. Members of committees are likely to be better equipped than many of their colleagues to make sense of the technical issues addressed in draft; further, decentralization is needed to deal with the masses of documents involved. But the effectiveness of Parliamentary supervision remains to be demonstrated. For a long time, many draft imple-


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menting measures have been sent to the Parliament without eliciting any strong reaction and, in all but a handful of cases, Parliamentary committees have failed to react (Bradley 1997: 237; Corbett et al. 1995: 254–5). The formal (though not unqualified) recognition of its right to be informed by the 1999 framework decision does not seem to have radically transformed the situation. The first report on the working of committees mentions only one instance in which the European Parliament raised objections – unsuccessfully – against one of the draft measures that was transmitted to it (Commission 2001c: 6). One interpretation might be that the Parliament’s concerns were partly of a symbolic nature, and that it attached more importance to having recognized control powers than to actually exerting them. Still, the kind of division of labour that is emerging at EU level – with the Parliament gradually acquiring the power to supervise the committees’ work – appears to correspond to the respective functions of parliaments and bureaucracies in modern societies. The former’s primary role is to review decisions taken by the latter and, if need be, to demand explanations and make sure that the people in charge are duly made to account for their deeds. In so doing, parliaments may enhance public awareness of decisions taken by bureaucratic bodies. Such an approach, which emphasizes accountability and the European Parliament’s function as a forum where the important political issues of the day can be debated, would be better suited both to the structure of comitology as a system of regulatory networks, and to the technical character of the issues tackled by committees, than parliamentary involvement in their day-to-day work. But would enhanced monitoring by a supranational legislature suffice to legitimize the comitology system? There are reasons to be sceptical. Representative democracy has become the focus of widespread criticism in Western Europe, where it is often perceived as a system that enables a cartel of e´lites to exert tight control over the policy agenda (Meńy 1998). Arguably, the gap between the rulers and the ruled may be even wider at the Community level. To many European citizens, the Parliament still appears a remote assembly, whose work remains largely unknown and whose members do not always represent the mood of the populace. More importantly, in a system where primary allegiances remain firmly rooted at the national level, national ties may prove to be more important than the supranational logic of parliamentary democracy. To put the matter bluntly, German or Danish consumers might feel their interest more effectively defended by, say, a delegate from a national consumer organization involved in committee proceedings than by a Greek or Portuguese MEP. Hence the attractiveness of alternative forms of legitimation, which provide for some form of direct participation of affected parties in the decision-making process. 4. THE PROCEDURAL AVENUE In recent years, growing attention has been paid to an alternative approach to legitimation, which emphasizes the fairness of decision-making procedures and



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demands that consideration be given to the interests of all the individuals affected by administrative decisions. Hence, inter alia, a request for more transparency and for participatory rights, enabling representatives of all the parties affected by comitology decisions to follow the committees’ work and to express their concerns before the relevant committees (Bignami 1999; Dehousse 1999). Such an approach, which has obvious affinities with pluralist models of democracy, might offer several advantages. An extensive dialogue with the various segments of civil society would obviate some of the shortcomings of representative democracy at the European level (Curtin 1998). It might also improve public awareness of the issues discussed at the European level, thereby contributing to the emergence of a truly pan-European public sphere. Some steps have been taken in this direction recently. The new framework decision on comitology now makes it compulsory for committees to adopt rules of procedures. The Commission has adopted standard rules of procedure (Commission 2001a), on the basis of which all committees must draw up their own rules, and the Commission has indicated that it would see to it that these rules diverge from the standard rules only on points relating to work organization (Commission 2001c: 5). However, the Commission’s rules do not foresee mechanisms aiming at publicizing committees’ work or enabling representatives of affected parties to make representations to the committees. The only ‘third parties’ that can be heard are experts.14 The provision on transparency (sic) also states that the committees’ discussions are to be kept confidential.15 In other words, the model which has inspired these standard rules seems to be one in which affected parties may react to committees’ decisions once they are adopted, rather than attempting to influence the thinking of committee members. In such a model, access to official documents is, of course, of primary importance. The framework decision on comitology provides that Commission rules on public access to documents apply to the committees’ documents.16 This latter point reflects a significant shift in the European Court’s vision of comitology, which deserves some attention as it illustrates well the process of change addressed in this article. Under the rules on access to documents held by the Commission, a wellknown cigarette manufacturer had requested from the Commission the minutes of a meeting of the Customs Code Committee. The reasons for the application were simple: like all ‘comitology’ committees, this one did not have its own administration, budget, archives or premises, or an address of its own (as the Court of First Instance subsequently noted). It therefore appeared natural to turn to the only permanent member of the network – the Commission – which chairs the Committee and performs secretarial duties. Yet Decision 94/ 90 provided that applications must be sent ‘direct to the author’. The Commission thus rejected the application, arguing that it could not be regarded as the author of the minutes ‘in the intellectual sense’ because it was subject


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to the Committee’s control even though, in practice, it held the pen for the Committee. Although the Commission’s decision merely reflected the traditional construction of comitology’s role, it gave rise to an embarrassing situation. Whereas committees are supposed to be an emanation of the Council, the latter does not generally hold copies of committee documents. Thus, in practice, the Commission’s conclusion amounted to an exclusion of comitology from the scope of rules regarding access to Community documents. In such conditions, adherence to the traditional view of committees would have ended up frustrating the principle of transparency to which European institutions have given so much importance in recent years, as Sweden, a notoriously transparency-minded government, promptly argued before the Court. Thus the Court preferred to rule that ‘for the purposes of the Community rules on access to documents, ‘‘comitology’’ committees come under the Commission itself, . . . which is responsible for rulings on applications for access to documents of those committees’ (European Court of First Instance 1999). In order to avoid a situation in which it would be nearly impossible to hold the actual authors of a decision accountable, the Court of First Instance decided to adopt a radically new reading of the role of committees. A stroke of the pen transformed them from control bodies into structures subordinate to the very institution they were supposed to control. The Rothmans ruling is interesting in several respects. First, it is symptomatic of the paradigmatic shift in the perception of committees. The Court was faced with a tension between classical constructions in which committees are viewed as an intergovernmental control device, and the actual operation of the bureaucratic machinery where the dividing line between the various actors is somewhat fuzzy. Second, it illustrates a difficulty inherent in the emergence of transnational bureaucratic structures at European level: keeping them under control is made more difficult by the discrepancy between their legal status and their actual role. To avoid creating a black hole in which important decisions could be made without any control, the Court had no choice but to opt for an innovative reading of the situation, in which ‘comitology’ committees and the Commission are depicted as forming part of the same network-like structure. This concession to pragmatism is noteworthy as, in other areas, traditional legal constructs have stood in the way of an acknowledgement of the changing conditions in which European governance structures now operate (Dehousse 2002). Notwithstanding this change, problems remain at different levels. Not only does the rather poor transparency of the committees’ work make it difficult to discern the part they may play in the formulation and eventual adoption of measures (de Bu`rca 1999); it also tends to complicate judicial review of committees’ work, since they are deprived of decision-making powers of their own. True, the validity of the decisions eventually adopted by the Commission or the Council at the end of a comitology procedure can always be challenged: in recent years, the ECJ has indeed started to look more closely at the functioning of committees, particularly when their procedural



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rules were allegedly violated (ECJ 1998). Needless to say, the indirect character of this review process, compounded by strict conditions under which private parties may seek the annulment of Community decisions, reduces incentives to rely on litigation to ensure the proper functioning of committees. Lastly, the procedural approach outline runs a risk which is common to all pluralist models of democracy. Not all interest groups enjoy identical resources; assuming proceduralization results in the development of legal disputes on whether the right procedures have been followed, better-off groups might enjoy a significant advantage. As American experience suggests, they could even afford to resort to judicial proceedings simply for delaying purposes, which might threaten the ability of the whole system to deliver good decisions in a reasonable time-span (Harlow 1996; Shapiro 1996). In contrast, ‘have nots’ are less likely to benefit from the adoption of formal procedural rules. A balance therefore needs to be found between the concerns of openness and efficiency. In this respect, it is interesting to note that, in its White Paper on European governance, the Commission has tried to identify a middle ground between the absence of any regulation and the rigidity entailed in complete proceduralization: Creating a culture of consultation cannot be achieved by legal rules which would create excessive rigidity and risk slowing the adoption of particular policies. Rather it should be underpinned by a code of conduct that sets minimum standards, focusing on what to consult on, when, with whom and how to consult. Such standards will reduce the risk of policy-makers just listening to one side of the argument or of particular groups getting privileged access on the basis of sectoral interests or nationality, which is a clear weakness with the current method of ad hoc consultations. (Commission 2001b, p. 17; emphasis in the original) 17 Although these remarks were written with reference to the Commission’s own consultation policy, the soft approach outlined therein might, it is suggested, also be useful in structuring the functioning of committees. 5. CONCLUSION Changes in the perception of the role of committees are symptomatic of the transformation of European governance. They also illustrate the multifarious nature of control mechanisms in the EU. Committees were initially conceived as an instrument of intergovernmental control over the Commission. Their existence stemmed from a deliberate attempt to prevent the emergence of a centralized executive power in Europe. This article has tried to show that this classical vision of comitology no longer adequately reflects the way committees operate, or the needs of an institutional system in search of enhanced legitimacy. The evidence available suggests that consensus is widely regarded as a value within committees, and that the Commission enjoys considerable influence


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over their daily work. Clearly, this does not rule out the possibility for national governments to defend their domestic interests, but the dominant pattern seems to be one where like-minded bureaucrats find it reasonably easy to identify areas of convergence. It does not follow from this that the need for control has faded; it has simply changed nature. The growing role of committees, the sensitiveness of the issues that they at times are called upon to deal with, and the overall decline of popular support for European integration in post-Maastricht years, combine to create the need for some supervision of their work. Hence the current paradox: initially conceived as control devices, ‘comitology’ committees are now increasingly perceived as transnational bureaucratic networks, which themselves need to be controlled. So strong has been this need that it has translated into a variety of pressures. The European Parliament has claimed a review power commensurate with its status as co-legislator in a wide number of policy areas. Control bodies like the European Ombudsman and the Court of Justice have imposed stricter procedural standards, which aim at ensuring some openness as regards the work of committees, and these standards have been partly codifed in the 1999 framework decision on comitology. While they are clearly inspired by different models of democracy – the classical parliamentary model in the former case, a pluralist view of policy-making in the latter – these two approaches to the control of committees need not be seen as contradictory. On the contrary, they may mutually reinforce each other. There is room for a scenario in which interest groups which actively follow the work of committees draw the attention of MEPs to decisions contemplated at that level, thereby facilitating parliamentary oversight. Ultimately, therefore, the juxtaposition of various control mechanisms might enhance public awareness of a hitherto largely unknown layer of European governance. Address for correspondence: Renaud Dehousse, 56 rue Jacob, 75006 Paris, France. Tel: ò33 1 58 71 17 08. Fax: ò33 1 58 71 71 11. email: renaud. [email protected] NOTES 1 Typically, in Joseph Weiler’s account of the EU’s institutional evolution, the rise of committees is portrayed as one of the elements of the growing role of national governments in the 1960s–1970s (see Weiler 1991). 2 See on this point the vigorous critique of Fritz Scharpf (2001). 3 See also the Conclusions by Advocate-General Jacobs in ECJ (1994), where an intergovernmental committee is described as ‘a control mechanism’. 4 See e.g. Vos 1999: 34, who argues that committees may be viewed as a way to protect the institutional balance against the growth of the EU, and ultimately of Commission powers. 5 See Maurer 1999: 12 for examples. 6 See e.g. ECJ 1988 and ECJ 1995. 7 Declaration on the implementation powers of the Commission, annexed to the Single European Act.



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8 See its December 2002 contribution to the Convention for a recent example (Commission 2002b). 9 Interview with Commission officials. Surprisingly enough, such a provision was introduced by the Council of Ministers in the final version. See Council 1999. 10 See, however, the discussion of the Rothmans case below. 11 Article 7 (3) of Council Decision 1999/468/EC. 12 Article 8 of Council Decision 1999/468/EC. 13 The Commission has recently proposed placing the two branches of the legislature on an equal footing at least as regards all matters subject to co-decision. See Commission 2002a. 14 See Article 8. 15 Article 14. 16 Article 7 (2) of Decision 1999/468/EC of 28 June 1999. 17 See the Communication on minimum standards of consultation (Commisssion 2002c).

REFERENCES Bignami, Francesca (1999) ‘The democratic deficit in European Community rulemaking: a call for notice and comment in comitology’, Harvard International Law Journal 40: 451–515. Bradley, Kieran (1997) ‘The European Parliament and comitology: on the road to nowhere?’, European Law Journal 3: 230–54. Buitendijk, G. and Van Schendelen, M.P.C.M. (1995) ‘Brussels advisory committees: a channel for influence?’, European Law Review 20: 37–56. Christiansen, Thomas and Kirchner, Emil (eds) (2000) Committee Governance in the European Union, Manchester: Manchester University Press. Commission (1995) Reinforcing Political Union and Preparing for Enlargement, submissions in view of the 1996 Intergovernmental Conference. Commission (1998) Proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission (1998) OJ C 279/5. Commission (2001a) Standard Rules of Procedure – Council Decision 1999/468 EC, OJ C 38 of 6 February 2001, p. 3. Commission (2001b) European Governance – A White Paper, COM (2001) 428 final of 25 July 2001. Commission (2001c) Report from the Commission on the working of committees during 2000, COM(2001) 783 final of 20 December 2001. Commission (2002a) Proposal for a Council Decision amending Decision 1999/468/ EC, COM(2002) 719 final of 11 December 2002. Commission (2002b) For the European Union: peace, freedom, solidarity – Communication of the Commission on the institutional architecture, COM(2002) 728 final of 11 December 2002. Commisssion (2002c) ‘Towards a reinforced culture of communication and dialogue: general principles and minimum standards for consultation of interested parties’, COM (2002) 704 final, 11 December 2002. Corbett, Richard et al. (1995) The European Parliament, London: Catermill, pp. 254–5. Council (1987) Council Decision 87/373/EC of 13 July 1987, OJ L 197/33, 18 July 1987. Council (1993) Council Regulation (EEC) no. 2309/93 of 22 July 1993, laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products, OJ L 214/1, August 1993.


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Council (1999) Council Decision 1999/468/EC of 28 June 1999, OJ L 184/23, 28 June 1999. Curtin, Deirdre (1998) ‘Civil society and the European Union: opening spaces for deliberative democracy’, Collected Courses of the Academy of European Law, Vol. VII, book 1, The Hague: Kluwer. de Bu`rca, Grainne (1999) ‘The institutional development of the EU: a constitutional analysis’, in P. Craig and G. de Bu`rca (eds), The Evolution of EU Law, Oxford: Oxford University Press, pp. 55–81. Dehousse, Renaud (1999) ‘Towards a regulation of transnational governance? Citizens’ rights and the reform of comitology procedures’, in C. Joerges and E. Vos (eds), EU Committees: Social Regulation, Law and Politics, Oxford: Hart, pp. 109–27. Dehousse, Renaud (2000) ‘1999, an I du parlementarisme europeén?’, Pouvoirs 93: 197–207. Dehousse, Renaud (2002) ‘Misfits: EU law and the transformation of European governance’, in C. Joerges and R. Dehousse (eds), Good Governance in an Integrated Market, Oxford: Oxford University Press. Dogan, Rhys (1997) ‘Comitology: little procedures with big implications’, West European Politics 20: 31–60. Ehlermann, Claus-Dieter (1987) ‘The internal market following the Single European Act’, Common Market Law Review 24: 361–404. Eichener, Volker (1992) Social Dumping or Innovative Regulation? Processes and Outcomes of European Health and Decision-Making in the Sector of Health and Safety at Work Harmonization, EUI Working Paper SPS 92/28, Florence: EUI. European Court of First Instance (1999) Case T-188/97, Rothmans v. Commission, 1999 [ECR] II-2463 at para 61. European Court of Justice (1970) Case 25/70, Einfuhr – und Vorratstelle fu¨ r Getreide und Futtermittel v. Ko¨ster, [1970] ECR 1161 at 9. European Court of Justice (1988) Case 302/87, Parliament v. Council, [1988] ECR 5615. European Court of Justice (1994) Case C-212/91, Angelopharm, [1994] ECR I-171. European Court of Justice (1995) Case C-156/93, Parliament v. Commission, [1995] ECR I-2019. European Court of Justice (1998) Case C-263/95 Germany v. Commission (Construction Products) [1998] ECR I-441. Harlow, Carol (1996) ‘Codification of EC administrative procedures: fitting the foot to the shoe or the shoe to the foot?’, European Law Journal 2: 3–25. Hix, Simon (2000) ‘Parliamentary oversight of executive power: what role for the European Parliament in comitology?’, in T. Christiansen and E. Kirchner (eds), Committee Governance in the European Union, Manchester: Manchester University Press, pp. 62–78. Joerges, Christian and Neyer, Ju¨ rgen (1997) ‘From intergovernmental bargaining to deliberative political processes: the constitutionalization of comitology’, European Law Journal 3: 273–99. Joerges, Christian and Vos, Ellen (eds) (1999) EU Committees: Social Regulation, Law and Politics, Oxford: Hart. Lowi, Theodore (1979 2nd ed.) The End of Liberalism, New York: Norton. Maurer, Andreas (1999) What Next for the European Parliament?, London: Kogan Page. Meńy, Yves (1998) The People, The Elites and the Populist Challenge, Jean Monnet Chair Papers RSC 98/47, Florence: EUI. Pedler, Robin and Scha¨fer, Gu¨ nter (eds) (1996) Shaping European Law and Policy: The Role of Committees and Comitology in the Policy Process, Maastricht: European Institute of Public Administration. Scharpf, Fritz et al. (1976) Politik Verflechtung: Theorie und Empirie des Kooperatives Fo¨deralismus in der BRD, Kronberg: Scriptor.


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Scharpf, Fritz (2001) European Governance: Common Concerns vs. the Challenge of Diversity, MPIfG Working Paper 01/6, July 2001, Cologne: Max Planck Institute. Shapiro, Martin (1996) ‘Codification of administrative law: the US and the Union’, European Law Journal 2: 26–47. Smiley, Donald (1980) Canada in Question: Federalism in the Eighties, Toronto: McGraw Hill. Vos, Ellen (1999) ‘EU committees: the evolution of unforeseen institutional actors in European product regulation’, in C. Joerges and E. Vos (eds), EU Committees: Social Regulation, Law and Politics, Oxford: Hart, pp. 19–47. Weiler, Joseph H.H. (1991) ‘The transformation of Europe’, Yale Law Journal 100: 2410–31.



Composite democracy in Europe: the role of transparency and access to information Adrienne Héritier

a

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European University Institute , Florence, Italy Published online: 04 Feb 2011.

To cite this article: Adrienne Héritier (2003) Composite democracy in Europe: the role of transparency and access to information, Journal of European Public Policy, 10:5, 814-833, DOI: 10.1080/1350176032000124104 To link to this article: http://dx.doi.org/10.1080/1350176032000124104



Composite democracy in Europe: the role of transparency and access to information


Adrienne He´ritier

ABSTRACT The European Union (EU) is a ‘composite’ democracy which features diverse forms of democratic legitimation: vertical legitimation through parliamentary representation in the European Parliament; executive representation through delegates of democratically elected governments in the Council of Ministers; horizontal mutual control among member states; associative and expert representation (delegation) in policy networks; and, finally, individual rights-based legitimacy. The argument developed in this article will proceed in four steps: first, the various strands of democratic legitimation are described while locating transparency, and access to information in the overall context of attempts at democratic legitimation in the EU. In the second step, the programme to increase transparency is specified in more detail. In the third step, a discussion gauges the compatibility of the relationship between access to information and transparency, on the one hand, and the central components of European democratic legitimation, on the other. In a fourth and final step, normative conclusions will be drawn with respect to the possible functions that access to information and transparency – bearing in mind the compatibility of the individual components – serve in the context of Europe’s composite democracy. KEY WORDS Access to information; composite democracy; democracy; Europe; transparency.

The European Union (EU) is a ‘composite’ democracy (He´ritier 1999a; Benz 1998; Auel et al. 2000; Manin 2000) which features diverse forms of democratic legitimation: vertical legitimation through parliamentary representation in the European Parliament (EP); executive representation through delegates of democratically elected governments in the Council of Ministers; horizontal mutual control among member states; associative and expert representation (delegation) in policy networks (Benz 1998); and, finally, individual rightsbased legitimacy (Manin 2000). Compared to the European composite democracy, national democracies offer a relatively coherent picture in which individual elements are linked under the umbrella of a dominant principle of Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124104


A. He´ ritier: Composite democracy in Europe

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democratic legitimation. By contrast, together, the various elements that make up the EU paint a more fragmented picture (see the introduction to this volume by Costa 2003) which does not add up to a coherent system. More precisely, the individual elements have not been developed and linked in a systematic and consistent way; rather, they have emerged from a series of pragmatic decisions made among the range of limited possibilities allowed: by the unanimity requirements of the intergovernmental conferences, or as a result of incremental individual initiatives of the different European decisionmaking bodies. As a consequence, it comes as no surprise that some elements are incompatible with each other, both with respect to their primary goals and their modes of operation. The nature, reasons and consequences of this type of incompatibility are at the centre of this article. Of particular interest is the question of the relationship between the legitimatory components of access to information and transparency, on the one hand, and the element of negotiative democracy as the ubiquitous mode of governance in Europe, on the other. While transparency and access to information stress the input-oriented goals of democratic legitimation (the right to know who makes which decisions when), associative representation and negotiative democracy emphasize the output-oriented goals of democratic legitimation (legitimation through obtaining policy performance whilst accommodating the widest possible scope of interests). Both input- and output-oriented legitimation are important and have to be viewed as a reciprocal relationship. The argument developed in this article will proceed in four steps: first, the various strands of democratic legitimation are described while locating transparency, and access to information in the overall context of attempts at democratic legitimation in the EU. In the second step, the programme to increase transparency is specified in more detail. In the third step, a discussion gauges the compatibility of the relationship between access to information and transparency, on the one hand, and the central components of European democratic legitimation, on the other. In a fourth and final step, normative conclusions will be drawn with respect to the possible functions that access to information and transparency – bearing in mind the compatibility of the individual components – serve in the context of Europe’s composite democracy. EUROPE AS A COMPOSITE DEMOCRACY Democratic legitimation in Europe is a patchwork of different strands. Firstly, it reflects the republican/representative tradition of rule in which there is a system of popular control over governmental decisions with a government that is responsive to the people by deciding through its representatives, the latter being chosen in free and fair elections. However, because elections of the EP essentially respond to national political issues, they ‘short-circuit the connection between the public and its representatives in the European arena’ (Lord 1998: 68). Additionally, the EU is not completely democratic (in the strictest sense) since its popularly elected parliament has only limited decision-making powers


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and only limited control over the executive branch, the Commission. The threat to dismiss the Commission as a collegiate body is too drastic an instrument to be practically used. But the power to table motions of censure has proved quite effective in making the Commission sensitive to opinions of the EP (Westlake 1994), the Commission strongly depending on credibility across the Union as a whole (Lord 1998: 61). However, the fact that a majority in the EP does not need to support a government and secure its stability, does mean that changing majorities can be formed and the support of the EP must be sought on a case by case basis allowing the Parliament to move freely across the range of the political debate (Lord 1998: 65). Members of the EP are mostly policy specialists who at the same time have to be consensus-oriented in the transnational party political context (Lord 1998: 85). The EP thus does serve as a public forum in which governmental functions are subjected to critical judgement (Mill 1972). It should be recalled that plenary debates may be called relatively easily and that Members of the Commission and the Council often take part in these debates. In addition, Parliamentary committees function as important sites of public debate in many policy areas (Lord 1998: 66). In this context of public discourse as an important element of democratic legitimation based on transparency, information and communication come to bear with exchanges of opinions and arguments opening up possibilities of deliberation (Schmidt, forthcoming). In sum, the goal of this, the most important strand of democratic legitimation, is equal representation and the pursuit of common welfare by generating and controlling a government; the prevalent mode of decisionmaking is voting in the plenary sessions; in the committees consensual decisionmaking may also be frequent. The second element of intermediate democratic legitimation is legitimation by executive representation (Benz 1998; Auel et al. 2000) or legitimation by delegation. It is evident that the most important intergovernmental decisionmaking body, the Council of Ministers, consists of delegates of the member state governments who themselves are democratically elected. Hence, there is indirect democratic legitimation along the vertical axis. However, to the extent that member state government preferences are also formed in the course of Council negotiations, this body may not be adequately authorized through the election of its parts. During bargaining, governments may have or want to change their preferences in order to facilitate an agreement (Lord 1998: 32). An important aspect of this type of legitimation is that each member state must be guaranteed to have the same chance to realize its interests, no structural disadvantages for any participant should exist, and the protection of minority interests must be safeguarded (Hu¨ glin cit. after Benz 1998). This is most easily guaranteed if decisions are made through negotiations on the basis of individual issues (including package deals and issue linkage), instead of through majority voting on the basis of long-term interest factions where the interests of the minority, which is outvoted, are neglected. Bargaining democracy creates input-legitimation since it prevents individual interests from being



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outvoted and thereby forces actors to take multiple interests into account. No individual party would be willing to support a decision if it would make it worse off than under the status quo conditions. This is reflected in the more equitable outcomes of the bargaining processes. By virtue of precisely this fact, bargaining democracy also constitutes a source of output-legitimation. The underlying process mechanism is consensus-building, attained with the help of compromises, compensation payments and package deals. This is enhanced by a context of long-term bargaining arrangements which characterize many policy areas in the EU that favour reciprocal action. This tends to produce an even-handed ‘balance sheet’ in so far as the actors involved are aware that they will remain together and are therefore willing to forgo short-term benefits in favour of long-term gains by taking the interest of the other actors involved into account, in full knowledge that, in the future, they in turn may well depend on the support of others. Under conditions of reciprocity and balanced structural conditions of participation, it may also be possible to initiate a phase of problem-solving oriented bargaining or deliberative bargaining, in which the possible joint gains might be discerned – and extended – before the actors proceed to defensive, and individualistic, profit-oriented bargaining (He´ritier 1999b). Hence, the goal of executive representation or representation by delegation is to come to policy decisions accommodating all member state interests or the largest possible number of interests. In short, the prevalent mode of decision-making is through negotiations. Thirdly, European democracy also reflects elements of accountability, defined as the possibility to control the political power which has been authorized through mutual horizontal control. This aspect of democratic accountability derives from the Montesquieuian and Madisonian tradition in a system of separated powers. In the Federalist Papers (1788) Madison develops a system of integrated political powers aimed at ensuring the mutual institutional control of political power. In Madison’s theory of the control of factions, he claims that the tyranny of a majority can only be contained by creating a plurality of factions which keep each other under control (Madison 1981: 1787). This has also been elaborated by the theory of pluralist democracy proposed by Lindblom (1977) and Dahl (1963). Since a ‘general will’ is not easily defined in a complex modern society – owing to a wide distribution of political resources – pluralism and polyarchy prevail, and power is controlled by counter-powers, resulting in a situation in which no single group dominates the policy-making process (Steffani 1973). Europe, as a polity whose very diversity is most clearly represented by the member states, constitutes a form of checks and balances to political power, based on individual member states (He´ritier 1999a; Grande 2000). According to this notion, it is possible to effectively control political power through the institutionalization of counterbalancing national forces. At each step of the European policy process, from the first tentative drafts to the formal decision-making process, the policy proposals of the actors involved are viewed with distrust and circumspection. The participants controlling each other are generally experts and/or decision-


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makers from the different member states, responding to each other’s policy proposals with counterproposals backed up by expertise. The mutual distrust at the basis of this process offers an enormous potential for control and a chance to hold actors accountable for individual policies; such moves need to be defended in substantive terms. This is the virtuous aspect of the slow pace, and indeed potential deadlock, inherent in the European decisional process. This phenomenon is widespread and permeates virtually the entire fabric of the decision-making process (He´ritier 1999a: 274). This mutual control also exists between the different formal decision-making bodies, the Commission (as initiator), the Council and the EP in the co-decision process. In summary, the primary goal of this type of democratic legitimation is to provide for accountability; the mode of action applied is control and, indeed, distrust. Fourthly, there is the aspect of the tradition of associative and expert representation or democracy by negotiation, reflected in the fact that policymaking often takes place in policy networks in which sectoral interests are represented and negotiated among associative and independent experts often nominated by the member states; in the course of these negotiations deliberation processes can take place, and compromises are struck. Although these networks do not have formal decision-making power, they play an important role in prestructuring formal decisions (Schmitter 2001: 7; Benz 1998: 352; Kohler-Koch 1998; Mazey and Richardson 1993). Thus consultation through committees has developed a working style which still pursues national interests; however, it is also geared to finding new solutions to problems which are acceptable for all concerned (Joerges and Neyer 1998). The Commission promotes this style of decision-making by establishing fora to exchange information and share experiences. It seeks to use these committees to prepare and deliberatively structure the decision-making process and to reach a balance between output-rationality, procedural transparency, and fairness with respect to those affected by these decisions (Joerges and Neyer 1998: 230). There are numerous indicators of this style of decision-making geared towards consensus: the numerous consultations between the Commission and member state associative representatives; the infrequency of strategic coalitions between delegates from different member states; the low rate of disapproval of decisions; the frequent modification of Commission proposals in the meetings; as well as the large number of consensual decisions (Joerges and Neyer 1998: 223). The danger of this mode of decision-making is that the interests represented may be biased. If there is not a well-balanced selection of participants, an agreement may be reached at the expense of those who are not participating in the negotiations (Schmitter 2001). In sum, the primary goal of this strand of negotiative legitimation is outputoriented, and it aims at reaching policy decisions which satisfy as many of the concerned interests as possible; the prevalent mode of decision-making is through deliberation and negotiation. Fifthly, there is the notion of democracy which guarantees a system of



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fundamental rights (liberal tradition); it views democracy as providing an extensive body of rights, such as the freedom of speech and assembly, which offer opportunities essential for popular control of government and for the functioning of the democratic institutions themselves at the European level (Engel 2000). The two elements of democracy under study here belong to that tradition. Transparency and access to information determine who has the right to know who the decision-makers are, what procedures they employ, what their areas of interest are, and what the consequences of their decisions are. Protecting other rights (such as property rights, and the right to privacy) serves to restrict political power – to some extent – by removing these rights from the realm of government decisions, or at least to justify the proportionality of such an intervention adequately so that legislatures do not have the power to override or compromise these rights (Dworkin 1991; Kuper 2000: 157). As such, these rights are not essential for the functioning of democratic institutions, but are oriented towards legitimation through output (Dahl 1999: 20). In short, the primary goal of this tradition of democratic legitimation is to protect individual rights in order to ensure democracy; the mode in which this is done is through guaranteeing individual rights to information or for complaint. Access to information, particularly when it is directed to administrative behaviour, also reflects the tradition of responsive democracy, developed in the 1970s and 1980s as a critique of bureaucratic/administrative behaviour, judged to be irresponsive to the needs and demands of citizens. The argument was precisely the reverse of the one we are discussing in the European context today when a lack of parliamentarian representation is criticized as the main deficiency of our democracy. In that earlier debate it was claimed that democracy via parliamentary representation during the input phase of policymaking was not sufficient to bring about democracy. Consequently, decisionmakers should also be held accountable and be responsive to the wishes of citizens during the output phase of policy-making administrative behaviour. A variety of institutions, particularly at the local level, such as citizens’ information offices, interest groups or citizens’ watchdog bodies, were developed in order to allow citizens and associations to exert influence on administrative behaviour (He´ritier 1999a). All the above-mentioned elements of democratic legitimation co-exist in European policy-making and are linked in such a way that various elements are necessary to produce a decision. To that extent, there is a supposition that certain elements will be either mutually supportive or incompatible. How does the European programme to increase transparency fit into the context of this composite European democratic legitimation? In particular how does transparency fit in with the backbone of European policy-making: ‘negotiative democracy’? Before examining this, various questions need to be addressed: what does the programme intend to achieve? What does it consist of ? And why was it introduced?


Table 1

Goals and decision-making modes of different strands of democratic legitimation Goal Input

Mode

equal representation

Voting/majority

republican tradition (EP)

Negotiation

minority protection

Output problem-solving, pareto-optimal or control/accountability Kaldor criterion EP vertical

executive representation (Council)

executive representation horizontal

Deliberation

Mutual horizontal control

associative/expert representation (SEC, policy networks) associative/expert representation (policy networks)

Individual demand/ complaint Vertical control

individual/interest

access to information

transparency progress

access to information

access to information diversity of actors, bodies

executive representation (Council)


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TRANSPARENCY AND ACCESS TO INFORMATION The attempt to introduce open government and more transparency into European policy-making itself consists of several separate debates – and indeed measures – which basically centre around two conceptions: access and communication (Grønbech-Jensen 1998). Access implies two possibilities: active access, i.e. the possibility of transmitting information, and even demands, to a political or administrative decision-making body, with or without the explicit right of being heard and that the decision-making body reacts formally to the concern at issue; and passive access, i.e. the possibility of obtaining information about on-going decision-making processes and the persons involved in a decision-making body. These possibilities exist for organized interest groups as well as for individual citizens. The access organized by European decision-making bodies is somewhat different in terms of the collective in-take of information, for instance through consultation processes and public hearings. Communication, by contrast, involves information that is offered from the ‘top-down’ by decision-makers in a policy-making body; this information is offered in a processed form through the decision-making structure of the respective decision-making body. It may take the form of information brochures, information on the internet, for instance, or oral presentations. The debate about transparency and access to information came about because of the perceived lack of transparency and openness in the complicated European decision-making processes, and its tendency to intensify problems of control and accountability. Because of the opacity of the decision-making processes of the Community bureaucracy and its innumerable informal committees and opaque policy networks as well as that of Council meetings, an attempt was made to secure a right to information in these areas (most recently Commission White Paper on New Governance, July 2001; Grande 2000: 126). The Council is a government by permanent negotiation in which the legislative process is difficult to separate from the ‘need’ of negotiating actors

Table 2 Elements of the transparency programme Communication

Access

Who: Administration Political body down

Who: Citizens Organized interests up

information brochures informative talks internet

access – information: passive – information: active influence access to – administration – political bodies Organized ‘in-take’ of information – consultation – hearing


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to protect the secrecy of their bargaining hands (Hayes-Renshaw and Wallace 1997, in Lord 1998: 87). To some extent, the origin of the programme to increase transparency can also be traced to the lack of success of more ambitious institutional reforms (He´ritier 1999b). Due to unanimity requirements in the intergovernmental conference arena and the deadlock this has often produced, it is all but impossible to bring about significant formal institutional reforms to enhance democracy in Europe. Therefore, decision-makers tend to settle for more modest incremental reforms to which everyone can agree. Yet these seemingly modest reforms may inadvertently turn out to be real instruments of change, precisely because they are not very conspicuous. By constantly pragmatically reshaping inter-institutional relations and their procedural rules (e.g. between the Commission and the EP), with the goal of increasing access to information (e.g. of the EP to comitology (Lodge 1994)), inconspicuous but important changes in the de facto inter-institutional decision-making have been made. In the emergent debate about the deficiency of European democracy, the Commission was blamed for its ‘alleged arrogant detachment from the public in particular’ (Lodge 1994: 343), for policy-making behind ‘closed doors’, technocratic decision-making in expert groups, and comitology. The critique was sharpened when the legislative functions were expanded under the Maastricht Treaty. Hence in its final declaration, the Lisbon summit – shortly after the Danish no vote to the Treaty on the European Union – committed member states to more transparency (Peterson 1995: 474). With the accession of Sweden and Finland in 1995 – and their traditions of transparent government at home – the debate on opening up the European decision-making process gained momentum (Peterson 1995; Grønbech-Jensen 1998: 190). Thus the President of the Commission, Jacques Delors – in co-operation with the EP – both announced a crusade for democracy in order to render Community action more transparent and began working on a communication policy (Delors, Strasbourg, 10 February 1993, cit. after Lodge 1994: 343; Peterson 1995: 477). Improved access to information was seen as a means of bringing ‘the public closer to the EC’s institutions and a way of stimulating a more informed and involved debate on European policy’ (Lodge 1994: 350). Depending on the institution at stake, access and communication have had different implications. In the Commission the debate focuses on two aspects: first, it focuses on how to strengthen organized interests’ access to, and their participation in, the policy formulation process. It thus developed a timetable for the annual working plan which would allow organized interests better access during the preparatory phase of Community policy (Lord 1998: 87). Moreover, new procedures for consultation with affected interest groups (and individuals) were formulated (Grønbech-Jensen 1998: 191), and a list of the groups and lobbyists having ties with the Commission was put together (Peterson 1995; Grønbech-Jensen 1998: 187). Second, the Commission encouraged the administrations of member states to make implementation information accessible to citizens (Bugdahn 2000; He´ritier 1999a). While the



823

Commission developed a principle of ‘transparency through access’ which expects members of the public to approach the Commission for information, the Council has emphasized ‘transparency through communication’ by seeking to explain and justify outcomes (Grønbech-Jensen 1998; Lord 1998). Due to the fact that it is both a legislative and an executive body, the Council of Ministers’ attitude towards transparency and accountability has been ambivalent. As an executive body, its decision-making has traditionally been secretive, despite the fact that a legislative body could be expected to make its decision-making process open to the public. These contradictory expectations are compounded by the fact that as a legislature it is made up of executives accountable to national parliaments (Ahern 2001: 26). The Council’s deliberative meetings are closed to the public (meetings of the Council for legislative work can only be made public through unanimous decisions: Grønbech-Jensen 1998: 192) and its documents are largely inaccessible to third parties. Until recently, unless the Council decided otherwise negotiations in the Council were covered by a rule of extensive confidentiality and public access to Council documents (minutes of meetings, including explanatory statements made at the moment decisions are adopted, preparatory documents, etc.) could be denied according to this rule of confidentiality. Under the Amsterdam Treaty the secrecy rules have been somewhat loosened. That treaty includes a general principle of openness. Article 207 states that when the Council acts in its legislative capacity the results of votes, and explanations of votes, as well as statements in the minutes shall be made public (Guggenbu¨ hl 1998: 18). A new Article 255, on the access to documents, was introduced. But neither the famous Guardian case (Case T-194/94, Guardian v. Council of the EU, ECR [1995] p.II-2765) nor the WWF case (WWFUK, supported by Kingdom of Sweden v. Commission of the European Communities, supported by the French Republic and the United Kingdom of Great Britain and Northern Ireland, case T-105/95) have made it completely clear where the right balance lies between the need for deliberation and the citizen’s interest in accessing Council documents (Guggenbu¨ hl 1998: 13). The declarations of the Amsterdam Treaty hold for the EP as well; that is, it is subject to the right of access within the limits set against the background of public and private interest. After long discussions this institution has attempted to make the relations between individual members of the EP and interest groups transparent by registering contacts and economic transactions between its members and lobbyists. The Charter of Fundamental Rights of the European Union establishes a right of access to the documents of the EP, Council and the Commission. The new rules formulated in the regulation on the access to sensitive internal papers have been contested between the Commission, the EP and the Council. The Commission wants to see a rather strict definition of a document, excluding informal messages, discussion texts and papers setting out internal departments’ opinions, while the EP argues that documents given to the EU’s


824


institutions by third parties should be made public, except in clearly defined cases. The EP spokesman also requested that access should not only imply the possibility of seeing policy documents, but also information on decisionmaking processes in European institutions (Taylor 2000: 7). In response the Council did scale down the scope of the public register of classified documents on common security and defence policy. The report of the EP rapporteur Cashman retains six exceptions for access (defence, public order, monetary stability, international relations, the protection of individuals’ private lives and professional confidentiality) while the Council proposed twelve. Recently the EP has taken a case to the European Court of Justice against the Council’s decision to extend secrecy to civil and military crisis management (Ahern 2001: 26).1 Within the context of the different components of democratic legitimation described above – e.g. vertical legitimation through parliamentarian representation, indirect democratic legitimation through executive representation, mutual horizontal control, associative/expert representation, and individual-rights legitimation – transparency and access to information only play a subsidiary role. In other words, transparency and access to information do not constitute a form of democratic legitimation in their own right, because they do not entail an element of decision-making. However, transparency and access are a crucial element of some modes of democratic legitimation without which the latter cannot function satisfactorily. For this reason the thrust of the transparency programme may, at least in some cases, conflict with the goals pursued by a specific strand of democratic legitimation. TRANSPARENCY AND THE MAIN FORMS OF DEMOCRATIC LEGITIMATION What – more specifically – are the links between the five central strands of democratic legitimation and transparency? To what extent is the relationship between the goals and modes of each type of democratic legitimation supportive of, or in contradiction with, increased transparency? In the context of the main form of representative/republican democratic legitimation, transparency and access to information play a straightforward supportive role. They function as a prerequisite for exercising popular control over government activities (with this popular control being instituted as a fundamental right); they also function as a prerequisite for the attempts of organized interests to influence parliamentarian decisions. If these attempts are not structurally biased in favour of only a few powerful groups, this pluralist notion of a democracy enhancing the quality of interest groups’ access to political decision-makers depends on some notion of the agenda- and decisionmaking structures of the political body addressed. In order to enhance the elected representatives’ accountability to the electorate, citizens need information about their representatives’ decision-making and the outcomes of their decisions. When – along with the Commission and the Council – the EP, as



825

a policy-making parliament, defines the political agenda, when it mediates interests, and participates in European legislation, both the citizens’ input, and the input of organized interests who aim to purvey their views, support the members of the EP in fulfilling this role. Furthermore, at a procedural level the EP is also obliged to disclose which organized groups and individuals not merely want to be informed, but actively seek to influence the decision-making process; this marks an attempt to avoid a structural bias in the access process which might selectively favour powerful organized interests. Hence, one may conclude that the programme for increasing transparency has an unmitigated, positively supportive impact on this main strand of democratic legitimation. In the case of executive representation, which is primarily of interest in the Council of Ministers, the relationship is more complicated. Since the Council acts as an intergovernmental body, consisting of delegates of democratically elected governments, it obeys different decision-making rules. Being composed of diverse members and being subject to the needs of minority protection, it cannot simply impose majority rule, but has to rely on negotiations as it tries to accommodate the diverse interests of all the concerned actors in order to reach compromises (Curtin 1995: 78). As the primary locus of executive representation, the Council is thus faced with a trade-off between democratic legitimation and efficacy, efficacy defined as the capability to adopt decisions with appropriate speed, to generate the degree of acceptability necessary for a consensus and to implement them with positive results (Piris 1994: 454–5). To achieve this, in their decision-making the Council and the bodies of the Committee of Permanent Representatives (COREPER) typically engage in painstaking negotiations, shrouded in secrecy, ‘starting from Commission proposals and carried forward by a succession of Presidency compromises, seeking to accommodate delegations’ problems until the necessary majority is found’ (Curtin 1995: 85). If the Council were to deliberate in public, progress would either be blocked ‘because delegations would be forced to take an immovable position, or the public proceedings would be theatre, with the real business being done by officials behind closed doors’ (Curtin 1995: 85). The individual citizen or interest organization cannot be expected to have an interest in a balanced policy result, accommodating all interests concerned. ‘There is an obvious danger that an attempt to open the final legislative stages to public purview will only force the real political bargaining behind the next set of closed doors’ (Lord 1998: 88). The same argument basically holds for the negotiations in the Commission consultative groups and associative or expert representation and comitology; only here the democratic legitimation problem is compounded because the members of these bodies are experts delegated by member states, or representatives of associations, neither of which have a democratic mandate. The role that the programme to increase transparency plays for the main forms of democratic legitimation becomes more complicated when ‘a’ parliamentarian and executive representation are linked, which is often the case in European policy-making. Thus, the Council needs the support of the EP in


826


those areas in which the principle of co-decision applies. Comitology is a case in point: it requires the co-management of the Council and the Commission, and, more recently, the EP owing to its role of co-legislation with the Council. The question has been raised regarding the degree of involvement of the Parliament. Here the Parliament quickly suffers from a lack of information on the complex on-going negotiation details, which are not easily compensated for (Benz 1998: 355). The procedural agreement is that the Commission and the Council are to send proposed implementation acts to the appropriate committee of the EP and then take its comments into account. The Council shall adopt the act only after informing the EP, waiting for a reasonable time and taking due account of the EP’s point of view. However, the Council has not been willing to let the EP participate directly in the meetings of its working groups (Guggenbu¨ hl 1998: 35). Recently a most interesting development has taken place between the Council and the EP which fundamentally influences the relationship between these two bodies and also has repercussions for the transparency programme. Since the new co-decision practice of May 1999, the Council and the EP have developed a pre-conciliation procedure to speed up the legislative decisionmaking process. ‘The change has been enormous. It is not written on paper. It is hard to see. It is carrying on. There are no rules’ (Interview EP, March 2001). The reasons for the change have been of a practical nature: widened co-decision-making has generated a greater need for conciliation, which for the Council, in particular for COREPER 1, has led to an increased volume of work. Conciliation is costly in terms of time and human resources. COREPER 1 – dealing with most issues of co-decision and therefore conciliation – has to deal with everything while its correspondent on the EP side, the particular delegation of the EP, changes with the issue at hand. As a consequence, the Council realized that it had to change the mode in which it operates and started to engage with the EP at a much earlier stage of the procedure and with more dense contacts. The aim is to look for an agreement with the EP so that conciliation is not needed. Accordingly, the Council has expanded its secretariat which deals with co-decision so that its officials deal with the issue right from the first reading of the EP. This method is adopted ‘to reach agreement earlier . . . to reach conciliation in little trilogue meetings and to confirm the agreements then quickly as ‘‘A-points’’ [in the Council language!] without discussion’ (Interview EP, March 2001). In these numerous informal meetings between the relevant unit of the Council Secretariat ‘service traitant’ and the responsible EP committee, there is an early mutual revealing of preferences (Interview EP, March 2001), making a second reading in the EP unnecessary. Thus, to give some empirical examples, the unbundling directive on local loops, the directives on electronic material, and on electronic commerce all went from draft legislation to actual law in record time. As a result, the number of conciliation procedures in relative terms – against the background of an increased number of co-decision areas – has gone down (Joint Declaration



827

of the EP and the Council: Ame´lioration de l’efficacite´ de la proce´dure de codećision, Brussels 2001). The implications of these on-going informal changes for democratic legitimation in general and transparency in particular are mixed. On the one hand, legislative output can be produced faster and more smoothly. On the other hand, considering that co-decision was introduced to reduce the democratic deficit, it is counterproductive that informal early agreements are introduced that again imply less openness. The EP committee process is open to the public (Shackleton 2001: 10). Thus, in a ‘fast track procedure’, the committee part is accessible to scrutiny. However, many preconciliation negotiations between the Council and the EP are removed from the public (Interview EP, March 2001) because the Council prefers to negotiate with individuals (chairperson, the rapporteur), instead of the entire committee. So the committees are in danger of becoming rubber stamps (‘chambres d’enregistrements’) for agreements negotiated elsewhere. ‘We are drawn into the way of working of the Council . . . There is a danger of us becoming the sixteenth member state, just another party in the negotiations of the first reading’ (Interview EP, March 2001; see also Boyron 1996: 313). Considering that one important value of the EP lies in its open discussions without over-restrictive time constraints, this development seems problematic because the earlier an agreement is reached, the more possibilities for civil society and lobby group inputs are reduced. As a remedy it has been suggested that the committee should define a mandate to negotiate with the Council and then come back to the committee and report (Interview EP, March 2001). Another option is that the Council should go to committee to present the common position and to negotiate with the EP before its second reading and not talk just to the rapporteur: ‘The very act would change the nature of the political process’ (Interview EP, March 2001). Although its rules would permit it, the Council, however, is hesitant about doing this and argues that this does not correspond to its existing practice. In addition, it argues that national delegations do not have the time and that it would break the solidarity in the Council. ‘They do not want to come, partly because it is a public meeting, whereas a meeting with the rapporteur is a private meeting; nobody will report it later. Partly it is out of solidarity with the Council. They are not willing to say ‘‘We are confident to get a qualified majority provided that X, Y, Z’’ ’ (Interview EP, March 2001). It would give the EP, and indeed everybody, an opportunity to look into the Council. Instead of such a committee, ‘the Council would prefer to have more little trilogue meetings with members of the political groups, a little representative sample of the committee put in a little room, which of course would not be open’ (Interview EP, March 2001). With respect to output legitimation, it has, however, to be borne in mind that executive representation through the Council may be rendered more difficult if systematically linked to parliamentarian representation: the efficiency of bargaining may be jeopardized because party competition comes to bear in the parliamentarian arena and parliamentary cleavages often cross-cut cleavages

828



Table 3 Transparency programme and different strands of democratic legitimation Strand of democratic legitimation

Transparency

Communication

Access

Representative/republican Executive representation Mutual horizontal control Associative/expert representation Individual rights legitimation

ò ñ ò ñ ò

ò ñ ò ñ

ò ñ ò ñ

of interest groups in specific thematic areas. As a result, complex negotiation compromises may once again unravel (Benz 1998: 355). However, it has been pointed out that the EP itself struggles with the tension between traditional (‘left–right’) cleavages and policy-specific conflicts which are not linked to the former (Lord 1998). Hence the openness for non-traditional cleavages may be more pronounced than assumed. In the context of horizontal mutual checks and balances, the legitimating power that resides in the control which one member state exerts over others is demonstrated when a state questions the actions of other member states in the decision-making bodies, asking for justifications, and thereby increasing the individual member states’ accountability for their actions. The citizens’ information queries and the informational input which organized interests contribute to the delegates/experts of one member state may enhance the information pool of the latter and facilitate their challenge of another member state’s position. Hence the relationship between horizontal control and transparency can be considered to be a positive one. Finally, the notion of democratic legitimation based on individual rights is very closely related to the programme to increase transparency. Access to information and transparency touch upon individual rights: the amount of information available and the degree of transparency entail previous decisions about who has the right to know who is making decisions, or how they are being made, what they are being made about and what the results are: who has the right to know who decides how about what and with what outcome. They also entail a more active component, namely that of seeking to influence the decision-making process with a certain information input. However, transparency and access to information may be limited by supporting the opposing rights of those who want to see certain data protected.2 CONCLUSION If democracy means effectively transmitting citizens’ interests into European governance, containing the power of individual bodies and actors by holding them mutually accountable for their decisions as well as accountable to citizens and providing for effective and acceptable problem solutions, how then does transparency contribute to these aims in the overall context of Europe’s composite democracy?



829

To answer this question it is useful to place transparency in the context of the policy-making cycle (for a similar argument see also Grønbech-Jensen 1998) and to consider its de facto and potential role in the different policymaking stages of problem definition, agenda-setting, policy preparation, policy formulation, policy implementation and evaluation. In reality these stages are not strictly separated from each other; rather, they overlap to some extent. However, seen as broad tendencies for prevailing decision-making types in different (sub-)phases, the role of transparency and access to information may be examined as follows. During problem definition, it is clearly an advantage for the policy-making process, both with a view to improving input and to increasing the quality of decision output, if there is extensive informational input from citizens and organized interests. This consultation serves to widen the scope of problems perceived by decision-makers (see also Benz 1998: 359). These views may be presented informally by individuals or in an organized framework such as during a formal consultation process or a public hearing. The modes of organizing individual or collective access to information in this phase could be improved in many respects. The biggest problem is that there is a lack of balance regarding the extent to which citizens and organized interest groups profit from access. It is mostly the groups which are already aware of the EU – the 4,500 lobbies, 650 consultancy firms and lawyers’ offices, and the European correspondents of major newspapers – that take advantage of the possibilities for access in this phase (Guggenbu¨ hl 1998: 23). An active policy of communication and information can, to a certain extent, compensate for the lopsidedness in the exploitation of existing access.3 In the phase where specific issues among the myriad of possible issues are chosen for the agenda of the European decision-making bodies, access is narrowed down drastically. A very limited circle of actors in the Commission, the Council and its presidency as well as the EP, decide in which order which issues are dealt with. Wide-ranging possibilities for popular or associative input in this context would very quickly overload the decision-making capacity of the pertinent bodies. In view of the e´litist nature of the agenda-setting, it is all the more important that the rules for control and accountability come to bear at the horizontal level, where there is mutual control among actors and bodies, and – once the legislative agenda is enacted – at the vertical level, between the electorate and the responsible policy-makers. Here transparency plays an indirect role in that – as described above – it can clearly improve the capacity of the individual actors of the involved bodies to control the actors in another body. In the phase of policy preparation where proposals on specific issues are being drafted, two phases have to be distinguished. The first phase is generally wide open for informational input when ideas are collected on how to deal with the problem at hand. Public hearings, formal consultations and the use of Commission Green and White Papers serve this purpose (Lodge 1994: 349). The second phase is one of deliberation and bargaining which, in


830


contrast, is insulated. Here concrete solutions are hammered out in the course of deliberations that aim to realize possibilities for joint gains, despite existing conflicts. During this phase complicated negotiations are carried out and compromises formed. Being wide open would jeopardize the possibilities for coming to complicated negotiation compromises (Curtin 1995) since – in order to satisfy their clientele – the individual actors would have to be intransigent in their demands (see also Abromeit and Schmidt 1998: 312). In the actual phase of formal decision-making, however, increasing transparency is crucial. Citizens can only hold the Community legislators accountable if decisions are made public and if it is possible to identify the decision-makers (Benz 1998: 358). Council decisions should be published in full, including the attached declarations, together with the minutes of the legislative sessions and statements of the votes given (Grønbech-Jensen 1998: 196). As we have seen, the Amsterdam Treaty has taken important steps in this direction. Regarding the transparency of implementation and administration, extensive public access to official documents, and files and registers as employed in the Scandinavian policy process, help to hold the administrative decision-makers responsible (Windhoff-He´ritier 1987) and could also serve to bridge the gap between Brussels and European citizens (He´ritier 1999a). Citizens and organizations may not just receive policy information – as access to information in European environmental policy requires (Bugdahn 2000) – they may also play a more active role. This is particularly so when, for instance, members of civil society are consulted by administrative actors on how to implement a European policy (such as in regional policy) or – one step further – when their active co-operation is required in implementing European policies. Finally, during the evaluation phase, transparency should be wide in scope and offer information about programme performance, its success or failure. In conclusion, if used in flexible, differentiated, and balanced ways which take into account both the input and output requirements of democratic legitimation in Europe, the programme to increase transparency can support the main strands of this process in Europe without simply creating new veto points (Auel et al. 2000). However, although transparency is a constitutive and important element of different modes and practical contexts of democratic legitimation, by itself it is not sufficient and, at best, can play only a supporting Table 4 Transparency in different policy-making stages Problem definition Agenda-setting Policy preparation formulation Implementation Evaluation

ò ñ ñ ò ò ò

ò transparency plays an important role/ñ transparency does not play an important role


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role. By no means can it be used as a means to side-step a European debate on inter-institutional reform to enhance democratic legitimation (Lodge 1994: 345). Address for correspondence: Adrienne He´ritier, Robert Schuman Centre for Advanced Studies, European University Institute, Via dei Roccettini 9, I-50016 San Domenico di Fiesole, Florence, Italy. Tel: ò39 055 4685 723. Fax: ò39 055 4685 776. email: [email protected]


ACKNOWLEDGEMENTS I would like to thank Tanja Bo¨ rzel, Christoph Engel, Dieter Kerwer, Marco Verweij and the participants of the two workshops on ‘La diffusion de la de´mocratie en Europe’, directed by Christian Lequesne, Nicolas Jabko (CERI – IEP, Paris), Olivier Costa (CERVL – IEP, Bordeaux) and Paul Magnette (IEE – Universite´ Libre de Bruxelles), for critical and constructive comments. NOTES 1 The Swedish Presidency, in principle in favour of transparency, was expected to support the EP’s endeavours (Agence Europe, January 2001, III: 13, 14). However, since there were also strong pressures from Sweden to strengthen intergovernmentalism, this Presidency was actually unable to full-heartedly support the transparency claims of an EP which is viewed as a body representing supranationalist tendencies. The Belgian Presidency has, however, opened up part of the General Affairs Councils to the public (European Voice 19/07–25/07/01). In May/June 2001 the EP and the Council accepted a regulation on public access to the documents of European institutions including the incoming documents from third parties. In addition, the access to documents system’s definition of a document is very broad (Agence Europe, June 2001, III: 8; Cashman Report 2000). 2 By establishing a link to the European Ombudsman, these individual rights may be strengthened, but only to a limited degree since the Ombudsman does not have a greater right to access for his investigation than the complainant (Lodge 1994). Furthermore, the European Court of Justice has not recognized the right to access information as a fundamental right (BEUC v. Commission C-170/89). 3 Or the information on the acquis communautaire should be made available as thematic information, in small guides, e.g. on social security for migrant workers. The Commission would need additional personnel for this (Guggenbu¨ hl 1998: 23).

REFERENCES Abromeit, H. and Schmidt, T. (1998) ‘Grenzprobleme der Demokratie: konzeptionelle ¨ berlegungen’, in B. Kohler-Koch (ed.), PVS Sonderheft 29: 293–320. U Ahern, N. (2001) ‘Closed-door democracy is not worthy of the Council of Ministers’, European Voice, 29 June–4 July, p. 26. L’Ame´lioration de l’efficacite´ de la proce´dure de codećision (2001) Rapport de la Pre´sidence et du Secre´tariat Geńe´ral du Conseil au Conseil Europeén, Bruxelles. Auel, K., Benz, A. and Esslinger, T. (2000) ‘Democratic governance in the EU. The case of regional policy’, in Arthur Benz, Roland Czada and Georg Simonis (eds), Fernuniversita¨t Hagen, Polisno. 48/2000.


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Benz, A. (1998) ‘Ansatzpunkte fu¨ r ein europafa¨higes Demokratiekonzept’, in B. Kohler-Koch (ed.), PVS Sonderheft 29: 345–68. Boyron, S. (1996) ‘Maastricht and the codecison procedure: a success story’, International and Comparative Law Quarterly 45: 293–318. Bugdahn, S. (2000) ‘Freedom of access to information on the environment: the EU Directive and its implementation’. Thesis manuscript, European University Institute, Florence. Cashman Report (2000) of the European Parliament on the proposal for a Regulation of the EP and the Council regarding public access to EP, Council and Commission Documents, October. Costa, O. (2003) ‘The European Court of Justice and democratic control in the European Union’, Journal of European Public Policy 10(5): 743–64. Curtin, D. (1995) ‘Betwixt and between: democracy and transparency in the governance of the European Union’, in The Treaty on the European Union, Suggestions for Revision, Conference, The Hague, pp. 75–104. Dahl, R.A. (1963) Who Governs? Democracy and Power in an American City, New Haven: Yale University Press. Dahl, R.A. (1999) On Democracy, New Haven: Yale University Press. Dworkin, R. (1991) Taking Rights Seriously, 6th edn, London: Duckworth. Engel, D. (2000) ‘The European Charter of Fundamental Rights. A changed political opportunity structure and its dogmatic consequences’. Manuscript, Max Planck Project Group: Law, Politics and Economics, Bonn. Grande, E. (2000) ‘Post-national democracy in Europe’, in M. Greven and L. Pauly (eds), Democracy Beyond the State? The European Dilemma and the Emerging Global Order, Boulder, CO: Rowman & Littlefield, pp. 115–38. Grønbech-Jensen, C. (1998) ‘The Scandinavian tradition of open government and the European Union: problems of compatibility?’, Journal of European Public Policy 5(1): 185–99. Guggenbu¨ hl, A. (1998) ‘A miracle formula or an old powder in a new packaging? Transparency and openness after Amsterdam’, in Veerle Deckmyn and Ian Thomson (eds), Openness and Transparency in the European Union, Maastricht: European Institute of Public Administration, pp. 9–38. Hayes-Renshaw, F. and Wallace, H. (1997) The Council of Ministers, New York: St Martin’s Press. He´ritier, A. (1999a) ‘Elements of democratic legitimation in Europe: an alternative perspective’, Journal of European Public Policy 6(2): 269–82. He´ritier, A. (1999b) Policy-Making and Diversity in Europe: Escape from Deadlock, Cambridge: Cambridge University Press. Joerges, C. and Neyer, J. (1998) ‘Von intergouvernementalem Verhandeln zur deliberativen Politik: Gru¨ nde und Chancen fu¨ r eine Konstitutionalisierung der europaïschen Komitologie’, in B. Kohler-Koch (ed.), PVS Sonderheft 29: 207–33. Jordan Grant, A. (1987) ‘Pluralism’, in V. Bogdanor (ed.), The Blackwell Encyclopaedia of Political Institutions, Oxford: Blackwell. Kohler-Koch, B. (1998) ‘Effizienz und Demokratie: Probleme des Regierens in entgrenzten Raümen’, in B. Kohler-Koch (ed.), PVS Sonderheft 29: 11–25. Kuper, R. (2000) ‘Democratization: a constitutionalizing process’, in C. Hoskyns and M. Newman (eds), Democratizing the European Union. Issues for the Twenty-First Century, Manchester: Manchester University Press, pp. 156–75. Lindblom, C. (1977) Politics and Markets: The World’s Political-economic Systems, New York: Basic Books. Lodge, J. (1994) ‘Transparency and democratic legitimacy’, Journal of Common Market Studies 32(3): 343–68. Lord, C. (1998) Democracy in the European Union, Sheffield: Sheffield Academic Press.



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Madison, J. (1981) The Papers of James Madison, Charlottesville: University Press of Virginia. Manin, B. (2000) Oral statement at the colloquium ‘L’Inte´gration europeénne: entre e´mergence institutionelle et recomposition de l’E´ tat’, Paris, May. Mazey, S. and Richardson, J. (1993) ‘Conclusion: A European policy style?’, in S. Mazey and J. Richardson (eds), Lobbying in the European Community, Oxford: Oxford University Press. Mill, J.S. (1972) Utilitarianism: On Liberty and Representative Government, London: Dent. Peterson, J. (1995) ‘Playing the transparency game: consultation and policy-making in the European Commission’, Public Administration 73: 473–92. Piris, J.-C. (1994) ‘After Maastricht, are the Community institutions more efficacious, more democratic and more transparent?’. Schmidt, V. (forthcoming) ‘Does discourse matter in the politics of welfare state adjustment?’, Comparative Political Studies. Schmitter, P. (2001) ‘What is there to legitimize in the European Union . . . and how might this be accomplished?’ Preprint, Institute for Advanced Studies, Vienna. Shackleton, M. (2001) ‘Codecision since Amsteram. A laboratory for institutional innovation and change’, ECSA Seventh Biennial International Conference, 31 May– 2 June. Steffani, W. (1973) ‘Einleitung’, in F. Nuscheler and W. Steffani (eds), Pluralism: Konzeptionen und Kontroversen, Munich: R. Piper & Co. Verlag. Taylor, Simon (2000) ‘Row over access to EU documents hots up’, European Voice, 29 June–5 July, p. 7. Westlake, M. (1994) The Commission and the Parliament: Partners and Rivals in the European Policy-Making Process, London: Butterworth. Windhoff-He´ritier, A. (1987) Policy-Analyse. Eine Einfu¨ hrung, Campus Verlag.



Conclusion: Diffuse democracy in the European Union: the pathologies of delegation a

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Paul Magnette , Christian Lequesne , Nicolas Jabko & Olivier Costa

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Institut d'études européennes , University of Brussels , Belgium

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Centre d'Etudes et de Recherches Internationales (CERI) of Sciences Po , Paris, France

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CERVL , Bordeaux, France Published online: 04 Feb 2011.

To cite this article: Paul Magnette , Christian Lequesne , Nicolas Jabko & Olivier Costa (2003) Conclusion: Diffuse democracy in the European Union: the pathologies of delegation, Journal of European Public Policy, 10:5, 834-840, DOI: 10.1080/1350176032000124113 To link to this article: http://dx.doi.org/10.1080/1350176032000124113



Conclusion: Diffuse democracy in the European Union: the pathologies of delegation


Paul Magnette, Christian Lequesne, Nicolas Jabko and Olivier Costa

ABSTRACT As the EU is not a state, and not likely to become one in the foreseeable future, it cannot rely on classic institutional devices – parliamentary or presidential regimes – to curb its democratic deficit. The EU is characterized as a form of multi-level governance with diffuse mechanisms of democratic control. Such a process of democratization is nevertheless not efficient enough to be called democratic. KEY WORDS Diffuse democracy; non-majoritarian institutions; principal–agent theory.

There are two hypotheses underlying this special issue of JEPP. First, as the European Union (EU) is not a state and not likely to become one in the foreseeable future, it cannot rely on classic institutional devices – parliamentary or presidential regimes – to curb its democratic deficit. The EU framers have consequently been obliged to invent new forms of democracy.1 Second, since the EU is best characterized as a form of multi-level governance, the modes of democratic control which are most likely to emerge can only be diffuse mechanisms (Scharpf 2000). The major question raised by this hypothesis is whether a process of democratization may actually be observed in the EU, and whether these new mechanisms may prove efficient enough to be called democratic. The empirical findings collected in the various articles of this special issue allow us to give a positive answer to the first question, and a more negative one to the second. On the one hand, it cannot be denied that one of the tentative solutions to the question of the EU’s democratic deficit is ‘to subject all of the Union’s institutions to standard sets of rules and procedures, or scrutiny, by agents who are not dedicated to a single task but responsible for applying it across the entire EU institutional system’ (Peterson and Shackleton 2002). From the point of view of democratic theory, this new trend remains nevertheless uncompleted: first, because all these new mechanisms are limited Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124113

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in scope; second, because they seem to be a piecemeal set of partial elements rather than a global system.


FROM ELECTORAL ACCOUNTABILITY TO DIFFUSE DEMOCRACY The continuous creation of new mechanisms of control within the EU’s institutional setting reflects a more general shift in liberal democracies. Though democracy has long been equated with free competition among those who pretend to exercise public power, according to the Schumpeterian formula, and epitomized by electoral processes, recent analyses tend to focus more on diffuse forms of control and accountability. This is mainly because, in the second half of the twentieth century, all western democracies adopted new modes of governance, relying notably on delegation of executive functions to non-majoritarian institutions (NMIs) which, in turn, produced new mechanisms of accountability. As it is only partially based on electoral sanctions, the EU not only reflects these changes, but also deepens them. To some extent, the problems raised by the EU may be cast in the language of the principal–agent (P–A) theory. Coined to explain institutional transformations in the United States of America, and their consequences in terms of accountability and legitimacy, this analytical language has become fashionable in Europe in recent years (Thatcher and Stone Sweet 2002; Thatcher 2002). Based on the assumption that institutional actors try to maximize their benefits, the P–A theory attempts to demonstrate why principals are induced to delegate powers to NMIs, and how they try to make these NMIs accountable to them. According to this approach, there are four kinds of factors that lead principals to delegate tasks to NMIs: 1. To make their commitment credible; 2. To collect information and expertise which they could not find by themselves; 3. To produce better problem-solving capacity; 4. To shift blame for unpopular policies to non-elected powers. Most analyses of delegation and of the consequences for accountability focus on the relations between the member states (principals), on the one hand, and the Commission, the Court, and more recently the European Central Bank (ECB) (agents), on the other. They argue that these agents were set up primarily to solve problems of commitment and, to a lesser extent, to address the three other objectives (Moravcsik 1998). They also show that the nature of control mechanisms is a corollary to the tasks delegated to the agents: when they are given autonomous powers in order to enhance the credibility of commitments, i.e. when they can be called ‘trustees’ (Majone 2001), it is very difficult for the member states to set up ex-post control; when, on the contrary, their raison d’eˆtre is mainly to provide expertise and problem-solving capacities, they can be submitted to stricter controls (Tallberg 2002). The findings of this special issue confirm this interpretation. Member states have been reluctant to establish ex-post controls of their ‘trustees’. As Costa’s and Jabko’s articles show, the European Court of Justice and the ECB have


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also carefully protected their independence, because such ex-post controls would have undermined their reputation vis-a`-vis the citizens, the enterprises, the financial markets and the member states. However, Dehousse also points out that the member states have created constraining processes to control the Commission in its legislative and executive functions (comitology), while leaving it more autonomous in its tasks as the guardian of the treaty. But this is only one part of the story. From the 1990s onwards, a new phase of delegation began, giving rise to a new generation of agents. The Court of Auditors, the European Anti-Fraud Office (OLAF) and the Ombudsman are examples of these new agents set up in the EU to guard the guardians. These agents are different, in their status and nature, from those of the first generation. They cannot be called regulatory agencies, because they have not been granted any power to regulate a definite field. They may not be likened either to trustees because – contrary to the European Court of Justice, the ECB or the Commission – they have not received a complete delegation in a given area. They can be called controlling agencies. Their task is limited to controlling the agents and the trustees, on the basis of open principles such as legality, regularity, openness, good administration. It is very different from the control exercised by parliamentary institutions, such as the European Parliament. The emergence of the new controlling agencies may enrich the P–A theory, which can only partially explain the EU today. It follows three different paths which have not been analysed by P–A theory. 1. In some cases, controlling agencies are established by member states willing to control their own agents, without bearing the costs and without undermining their commitments. In her article, Brigid Laffan shows that the growing salience of the Court of Auditors is part of a wider attempt to enhance the systemic legitimacy of the EU. This institution has progressively become an advocate for improved financial management and has provided a key ingredient of accountability, while leaving its political dimension to the European Parliament (EP) and the Council. Paul Magnette shows that the creation of the European Ombudsman is the consequence of a similar concern, in order to improve the principle of accountability in the EU, to make it closer to the citizens’ desires and expectations, without jeopardizing the independence of the integrated European institutions. He demonstrates that if the Ombudsman did not really enhance the control capacity of the EP or the protection of citizens’ rights, he/she promoted the general principles required for ‘good administrative practices’. The creation of those bodies does not correspond to the P–A theory, which generally argues that control of the agent is made by the principal itself. But controlling agencies may also be reintroduced in the P–A theory as an addendum. When a principal feels that the control mechanisms it has initially created are not sufficient, and when it is too divided to control its agent directly, it is likely to create controlling agencies with the specific task to do so.



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2. In other cases, controlling agencies have initially been set up by the agents themselves in order to avoid control by the principal, as illustrated by OLAF. As Ve´ronique Pujas shows, the creation of this office was both a means and a strategy to reinforce the legitimacy of European governance, and more specifically to strengthen the Commission and the EU. The creation of OLAF was clearly a response by the Commission to the crisis of trust that affected it, while protecting it from any further interference from member states as regards the functioning of the European institutions. This process does not correspond to the P–A theory either and it requires a second addendum: when an agent feels threatened with losing its independence, it may choose to enhance its own internal controls. The development of OLAF also shows that the principal may eventually turn this internal control into a fully-fledged controlling agency. 3. A third case arises when the level of trust between the agent and the principal has deteriorated but the principal is not in a position to impose new controls and the creation of internal controls by the agent is unlikely to reassure the principal. This is illustrated by the creation of the Committee of Independent Experts in 1999. As shown by Christian Lequesne and Philippe Rivaud, this body was the direct result of the EP’s inability to bring into play the formal mechanisms of parliamentary control, i.e. the right of censure and the Committees of Inquiry. But the official commitments of the Commission after the vote of ‘conditional censure’ by the EP could not really reassure the Members of the European Parliament (MEPs). The creation of a committee of experts seemed to be the best solution to overcome the problems of internal division within the EP, avoid any open conflict between the two institutions and guarantee impartiality. We must also add that the MEPs chose to establish a temporary controlling agent because both the agent and the principal were unwilling to produce new permanent constraints. This does not mean that all innovations in the EU may be explained with purely utilitarian arguments. In all these cases, as shown in the previous articles, normative isomorphism has also played a crucial role. The Court of Auditors and the Ombudsman have been directly imported from the member states into the EU, because they were considered to have improved democracy in the national context. Likewise, the emergence of the European Court of Justice was justified by references – both explicit and implicit – to the standards in civil rights protection in the member states, and notably to the role played by the Constitutional Courts in the federal systems. Member states also resort to the creation of committees of experts or ‘wise men’ to solve difficult problems. It must also be added that the principle of transparency is directly inspired by the model of the member states, and more particularly the Nordic states which see transparency as one of the main foundations of democracy. The emergence of this principle coincided with the entry of Sweden and Finland into the EU.


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Together with explaining the continuous phenomenon of delegation and differentiation of EU governance, the various articles of this special issue also address the consequences of these evolutions. They show that, though these mechanisms may sometimes contribute to the diffusion of ‘good governance’ and enhance the accountability of EU institutions, they only bring partial improvements. New agents also give rise to problems of accountability, which may be called pathologies of delegation. Renaud Dehousse shows in his paper that comitology committees, initially conceived as control bodies, are now perceived as transnational bureaucratic networks, which, in their turn, need to be controlled. In his article about the ECB, Nicolas Jabko argues that independent expertise may paradoxically be a means to ensure that decisions are made in accordance with the general interest, but may also prove to be an obstacle to any public debate on the issue. Ve´ronique Pujas underlines the fact that the legitimacy of OLAF is questioned by the institutional actors which have denounced its action and called it a ‘crusade’. Christian Lequesne and Philippe Rivaud share the same point of view about the committees of experts whose legitimacy is questionable as it relies only on the commitment of experts who mainly act outside the sphere of public debate. DIFFUSE DEMOCRACY: VICES AND VIRTUES OF MULTI-LEVEL ACCOUNTABILITY The accountability of these new agencies is one of the major questions raised by the specialized literature which has recently rediscovered Juvenal’s famous question: Quis custodes ipsos custodiet? Two lines of argument are generally put forward. First, in terms of outputs, delegated agents have built their legitimacy on their actions, thus demonstrating that they could fulfil tasks that the principal would be unable to fulfil, or produce better solutions. Second, delegated agents are submitted to a large set of procedures which are supposed to make them accountable: they have to respect their mandate, motivate their choices, balance arguments, provide information and be open to stakeholders. Their action must be transparent, respect principles of good administration, and be subject to judicial control. We have shown in this special issue that the EU falls short of respecting all these procedural requirements. Beyond the question of the outputs, we argue that procedural conditions are not fully developed in legal terms, and unequally implemented in practice. Only some categories of social actors use the legal procedures offered by the European Court of Justice. The Ombudsman cannot contest the decisions made by the governments of the member states and is also limited to certain categories of actors. The ECB does not totally respect the principle of transparency. The Committees of Experts act outside the sphere of public debate and can easily be accused of impartiality. The comitology committees suffer chronically from a lack of visibility and are still not fully accountable. The action of OLAF remains difficult to define clearly,



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which affects its legitimacy and invites criticism from the very actors it is supposed to control. Moreover, we should not over-stress the requirement for transparency, which cannot in itself be the only solution to the problem of democratic deficit in the European institutions. To summarize these findings, two shortcomings must be underlined. First, the EU has not yet become a ‘glasshouse’ subject to all principles of ‘good governance’. Second, the diffuse mechanisms of control are generally used by privileged actors who benefit from financial, cognitive and conceptual resources (Kohler-Koch 1997). Some would argue that this is not a problem since all citizens are given the same rights. But a less liberal conception of democracy would answer that a democratic system must also include incentives for citizen participation and must reduce inequalities of access through affirmative actions (Drysek 2001). There is no objective assessment or argument here. As the meaning of democracy is itself the object of democratic deliberation, the extent to which the system is considered democratic depends on one’s normative assumptions. The dilemma is particularly strong in the EU, where competing national conceptions of democracy, based partly on different assumptions, make the emergence of a democratic common sense very difficult. Such normative prudence is also required to address another major question raised in this special issue: beyond the partial elements of accountability examined in the various chapters, can we observe the emergence of a coherent system which might be called diffuse democracy? This again depends on one’s normative assumptions. Those who argue, on a liberal line, that democracy refers to a working system of accountability might answer positively. Those who, from a more republican or communitarian point of view, argue that the EU has more to do with the concept of the ‘rule of law’, while democracy implies civic participation, would on the contrary consider the present system as largely incomplete. This special issue does not pretend to offer a clear-cut normative argument in favour of one or the other theory. Nevertheless, its findings raise two basic questions which should be addressed by further research: 1 If a polity does not allow its citizens to ‘throw the scoundrels out’ (Weiler 1999: 329), are leaders – who know they cannot be removed – really induced to give account of their action? 2 If accountability is institutionalized through a large and piecemeal set of mechanisms, does it help the citizens to understand the issues at stake, and produce the cognitive and motivational sources of active citizenship? No definitive answer can be offered to these two basic questions. But the current evolution of the EU illustrates a paradox of European governance. The leaders of the member states who have set up the Convention on the Future of Europe, to address fundamental questions about the institutional future of the EU and the search for a rationalization of the political system, might have recognized, through this choice, that they are aware of the limits of diffuse democracy. If this reform process leads at the end to the adoption of a

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more classic constitution for the EU, based on ‘old’ principles of electoral accountability and parliamentary responsibility of the executives, it will have demonstrated that governance without government, and accountability without sanctions, have not yet convinced the Europeans. NOTE 1 For instance, none of the six conditions for building a satisfactory system of accountability in Przeworski et al.’s book (1999) are met in the EU.


REFERENCES Dryzek, J. (2001) Deliberative Democracy, Oxford: Oxford University Press. Kohler-Koch, B. (1997) ‘Organized interests in European integration: the evolution of a new type of governance’, in H. Wallace and A. Young (eds), Participation and Policy-Making in the European Union, Oxford: Clarendon Press, pp. 42–68. Majone, G. (2001) ‘Two logics of delegation’, European Union Politics 2(1): 103–22. Moravcsik, A. (1998) The Choice for Europe. Social Purpose and State Power from Messina to Maastricht, Ithaca: Cornell University Press. Przeworski, A., Stokes, S. and Manin, B. (eds) (1999) Democracy, Accountability and Representation, Cambridge/New York: Cambridge University Press. Scharpf, F. (2000) ‘Notes toward a theory of multilevel governing in Europe’, MaxPlanck-Institut fu¨ r Gesellschaftforschung Discussion Paper, 5. Tallberg, J. (2002) ‘Delegation to supranational institutions: why, how, and with what consequences?’, West European Politics 25(1): 23–46. Thatcher, M. (2002) ‘Delegation to independent regulatory agencies: pressures, functions and contextual mediation’, West European Politics 25(1): 125–47. Thatcher, M. and Stone Sweet, A. (2002) ‘Theory and practice of delegation to nonmajoritarian institutions’, West European Politics 25(1): 1–22. Weiler, J. (1999) The Constitution of Europe, Cambridge: Cambridge University Press.



Review section Tobias Theiler

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Department of Politics , University College Dublin , Ireland Published online: 04 Feb 2011.

To cite this article: Tobias Theiler (2003) Review section, Journal of European Public Policy, 10:5, 841-848, DOI: 10.1080/1350176032000124122 To link to this article: http://dx.doi.org/10.1080/1350176032000124122



Review section


Edited by Thomas Christiansen

CULTURE AND EUROPEAN INTEGRATION Tobias Theiler Richard Collins (2002) Media and Identity in Contemporary Europe: Consequences of Global Governance (Bristol and Portland, OR: Intellect Books) ISBN 1 841 50044 5 (pbk) (MICE) Paulette Kurzer (2001) Markets and Moral Regulation: Cultural Change in the European Union (Cambridge: Cambridge University Press) ISBN 0 521 80289 X (hbk); 0 521 00395 4 (pbk) (MMR) Chris Shore (2000) Building Europe: The Cultural Politics of European Integration (London: Routledge) ISBN 0 415 18014 7 (hbk); 0 415 18015 5 (pbk) (BE) Culture is difficult for political scientists to conceptualize. If, on the one hand, they adopt a ‘Germanic’ definition which restricts culture essentially to the arts, it becomes too narrow to be analytically interesting. But if, on the other hand, they subscribe to the traditional ‘Anglo-Saxon’ or anthropological rendering which takes culture to represent all that human beings produce, practise and believe, culture becomes too broad to have much explanatory value. Clearly, if culture is defined to encompass ‘everything’ it cannot help to explain political institutions and behaviour since these are now by definition part of culture. Culture cannot at the same time be the very thing it purportedly serves to explain. One promising way of transcending this dilemma draws heavily on contemporary social anthropology and sociological theory (e.g. Bourdieu 1984). It takes culture to represent a social ‘field’ (or ‘sub-system’ or ‘discursive domain’) which centres on the symbolic production of meanings. These meanings Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124122


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govern individuals’ perceptions of the social world and, since all social reality is symbolically constructed and mediated, are ultimately constitutive of it. Thus defined, the ‘cultural’ is distinct from the ‘political’ but at the same time the two are dialectically intertwined. Culture shapes politics while politics shapes culture, and political scientists face the task of disentangling this mutually constitutive relationship between the two. This notion of culture broadly informs all three texts under review. However, it is BE which adheres to it most explicitly. A social anthropologist by training, Shore urges us to treat culture not merely as a particular ‘dimension’ or ‘policy area’ of European integration. Instead, if social reality is symbolically constructed and mediated, then European integration, as an effort to change social reality, is by definition a symbolic and thus a cultural undertaking to its very core. It entails the creation of new symbolic categories which must become ‘so internalized that they become part of the fabric of subjectivity and the individual’s sense of self . . . [They] include notions like ‘‘European citizen’’, a ‘‘good European’’, a ‘‘European problem’’, ‘‘common European values’’, ‘‘European culture’’ and ‘‘Europeanness’’ itself . . . Constructing Europe requires the creation of ‘‘Europeans’’, not simply as an objectified category of EU passportholders and ‘‘citizens’’ but, more fundamentally, as a category of subjectivity’ (pp. 29–30). For Shore, two crucial questions arise from this. On the one hand, we must ask how European Union (EU) officials – above all the European Commission – have used cultural devices (in the broad ‘symbolic’ sense defined above) to create and disseminate a European subjectivity at the popular level. On the other hand, we must examine to what extent Commission officials themselves have internalized European identity categories and how this shapes their actions. Addressing these questions in turn, the first part of BE offers a fascinating overview of cultural policy and political symbolism in the EU over the past decade. Propelled by the Maastricht ratification crisis, the 1990s saw a host of Commission-driven initiatives to help Europeans ‘rediscover’ their ‘European heritage’ and shore up support for the EU. They included European cultural festivals, the promotion of literary translations, subsidies given to ‘European integration studies’ at universities, the distribution of ‘information’ brochures and videos to schools, efforts to encourage a more widespread use of the European flag and anthem, various European prizes and EU-sponsored sporting events, and so forth. The EU’s legal competences in cultural policy and related areas remained shaky throughout. Nonetheless, the Commission saw cultural policy as an indispensable tool to secure the Union’s popular legitimacy and prevent ‘nationalistic’ backlashes. On the face of it EU cultural policy often seemed like a kind of watereddown version of classical nation-building schemes: flag, anthem, memorial day and the like. Yet at the same time, the Commission never sought to erase national cultural particularities. Instead, its culture officials genuinely believed in their ‘unity in diversity’ mantra. Their objective was to turn ‘Europe’ into a


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complementary category of belonging for national mass publics, into something perceived as ‘an organic phenomenon arising naturally from Europe’s rich diversity and centuries of shared history (and hence, as something strong, proud, distinctive and unambiguous)’ (p. 52). Commission-propagated concepts such as ‘Community history’, ‘European studies’, ‘European heritage’ and ‘European identity’ all epitomize this quest to ‘reconfigure the symbolic ordering of time, space, information, education and the media’ (p. 50). Having examined how Commission officials use culture to disseminate a European consciousness at the mass level, the second part of BE turns to how the consciousness of those officials themselves is formed. It assesses whether ‘the EU has developed within its own institutions the embryo of a European identity and consciousness commensurate with its supranational ideals, and to act as a catalyst for diffusing the European idea among the population at large’ (p. 206). Based on extensive ethnographic fieldwork inside the Commission and interviews with present and former EU officials, Shore’s conclusion is unambiguous. Engrenage – the process whereby supranational officials become ‘enmeshed’ in the EU’s organizational culture, start to identify with it and seek to further promote the integrative process – is clearly in evidence, just as neofunctionalist theorists of integration predicted. Several factors contribute to this, according to Shore. A first factor is the status of Commission officials as materially privileged ‘exiles’ in ‘cold’ and ‘inhospitable’ Brussels. This encourages their social segregation and a shared sense of belonging to a ‘denationalized’ European vanguard. Another factor is the Commission’s peculiar organizational culture. Rigid, hierarchical and highly legalistic formal structures disguise a tradition of patronage, personal networking and ‘back-door’ recruitment. Drawing on the anthropology of organizations, Shore shows that these two organizational logics are complementary and account for the Commission’s perseverance and relative effectiveness. They provide skilled officials with tactical leeway to expand the Commission’s formal and informal remit, as happened notably during the Delors era. Seen through Shore’s eyes, then, the Commission is a powerful socialization machine that both ‘enmeshes’ and Europeanizes its officials while – and here we are brought back to the first part of BE – providing them with a basis from which to disseminate their European consciousness to a larger public. Shore’s account is perceptive and superbly written and its theoretical and empirical scope is refreshingly broad. All the same, in places Shore’s judgement is too quick and his conclusions too sweeping. For example, judged by their ‘content’ some EU cultural policies may well have an embryonic ‘nation building’ touch. Yet the overall scope and funding of EU cultural policy has remained derisory, especially if compared to the unabated ferocity with which most member states pursue their national cultural policies and political symbolisms. In the European Commission, the bulk of EU cultural and educational policy is actually run from a single cramped floor in a drab Brussels office block by officials who are fearful of seeing their programmes eliminated or ‘outsourced’ during looming rounds of budget cuts – quite a far cry from


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the agile nerve centre of a new ‘European subjectivity’ that so fascinates Shore (Theiler, forthcoming). Similarly, in the second part of BE Shore neglects the large body of literature that questions the relative significance of engrenage and related processes. In short, Shore’s claim that ‘the process of cumulative integration . . . is, de facto, laying the foundations of a centralized European state’ (p. 211) may or may not be true, but BE does not do enough to support such a strong conclusion. If BE looks at cultural change initiated from ‘above,’ MMR takes a perspective from ‘below’. For Kurzer, as for Shore, the EU must weld together different national publics socialized into divergent normative frameworks. These differences do not necessarily hinder integration. However, other things being equal greater social and cultural integration (or, to use Shore’s language again, a partial merger of national subjectivities) makes political integration easier. Hence Kurzer’s central question: are normative divergences diminishing in contemporary EU-Europe? If so, what drives this process? To find answers, Kurzer selects four case studies pertaining to particular ‘morality regimes’ in different EU member states: the systems of strict alcohol regulation in Sweden and Finland, Ireland’s ban on abortion and permissive drug control policy in the Netherlands. For Kurzer, these cases are instructive for three reasons. First, the different ‘morality regimes’ significantly diverged from mainstream European practice. Second, until recently they withstood adaptive pressures. Finally, in their respective countries they became central to ‘the definition of collective self-identity’ and able to ‘foster a sense of national belonging’ (p. 170). Leaving aside the case of the Netherlands (which tightened its drug laws after other EU governments had threatened to reintroduce border controls in order to curb ‘narco-tourism’), the other three ‘morality regimes’ all withered in a similar fashion. Once they had emerged they became deeply anchored in institutional and legal practice. Nonetheless, eventually they became eroded and started to gravitate towards the European mainstream. Sweden and Finland both relaxed their restrictive alcohol laws. The Irish abortion ban remains intact, but is being undermined by growing ‘abortion tourism’ to neighbouring countries which the Irish government tolerates. For Kurzer, approaches that focus on social learning and norm diffusion among national policy experts cannot explain this levelling. On the contrary: far from spearheading change, national expert groups (such as the influential ‘alcohol research community’ in Sweden and Finland) consistently opposed liberalization. Similarly, the EU had little direct impact since alcohol policy (and still more so drugs, sex and abortion) fall outside its legal competences. Instead, for Kurzer the main agents of change were ordinary consumers. These took advantage of EU freedom of movement rules to circumvent restrictive national practices, travelling to other member states to buy cheap alcohol or obtain abortions. This made restrictive national policies functionally less effective. Moreover, it undermined the very legitimacy of those policies by highlighting gaps between official norms and private preferences. In retrospect,



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then, even though national governments continued to deny the EU direct powers in areas such as drugs and the regulation of sexual behaviour, they ‘failed to reckon with the cumulative consequences of the earlier agreement to promote the free circulation of people’ (p. 175). Market integration was sufficient to erode cultural differences. Kurzer’s account is carefully researched and impeccably structured. It provides immensely valuable insights into the sociological consequences of market integration. Two major questions, however, remain. First, Kurzer concedes that national ‘morality regimes’ would not have changed without much more fundamental shifts in underlying social values. Examples are the demise of religiously inspired temperance movements and the emergence of a Continental-style wine-drinking culture among middleclass Scandinavians, and the declining influence of Catholic doctrine in Ireland. These shifts often preceded the Single Market and/or the country in question joining the EU, and they were crucial. For they ensured that once the Single Market had created the opportunity, national publics were not only able to circumvent restrictive national ‘morality regimes’ but also eager to do so. Kurzer broadly hints that such changes in social values are in part driven by processes of trans-societal learning and value diffusion at the mass level, but does little to elaborate. On this issue, the ‘social communications’ approach developed by Karl Deutsch and his associates in the 1950s would have been immensely helpful (e.g. Deutsch 1954). Unfortunately, much of the contemporary scholarship on European integration is oblivious to Deutsch’s work, and MMR is no exception. Second, Kurzer insists that all four ‘morality regimes’ were normative pillars of their respective national identity categories. But did ‘abortion, alcohol, and drugs’ really ‘provide insights into what it means to be Irish, Finnish or Swedish, and Dutch,’ as Kurzer repeatedly claims (p. 173)? Maybe so, but just how important were they in relation to other national norms and practices that did not become Europeanized? Yet even if the link between Kurzer’s ‘morality regimes’ and national identifications was indeed very close, the Europeanization of the former might still have done little to Europeanize the latter (and, to be fair, at no point does Kurzer insist otherwise). As much of the anthropological and social-psychological literature suggests, communal norms and practices are often highly ‘detachable’ from communal identifications. Communities often change their signifiers all the while the boundaries they signify remain intact or even strengthen (Cohen 1989). In so far as one accepts that a harmonization of ‘form’ does not necessarily equate to a harmonization of ‘meaning’ or to a merger of categories of belonging, the broader significance of Kurzer’s account remains unclear. Audiovisual policy differs from the policy areas examined by Kurzer and Shore. While it has a clear cultural and ‘identitive’ dimension, it is also bound up with important economic and technological stakes. As MICE shows, this meant that the EU could become involved in audiovisual policy more deeply than in many other parts of the cultural sector. It also meant that its audiovisual


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objectives could be relatively ambitious, with Commission officials envisioning the partial ‘compatibilization’ of national audiovisual policies and creative content – something they could never openly advocate for drugs, sex or abortion. Collins’ collection of essays addresses a variety of issues, ranging from audiovisual deregulation and the role of public service broadcasting to the importance of language in determining global audiovisual trade flows. However, a recurrent theme throughout MICE is the EU’s involvement in audiovisual policy. As Collins shows, this involvement gained serious momentum in the mid-1980s and had both ‘negative’ and ‘positive’ components. On the one hand, the EU subjected the audiovisual sector to its Single Market provisions. This, it hoped, would ‘defragment’ the market available to European audiovisual producers, thus increase their output and thus reduce Europe’s reliance on films and television programmes imported from the United States. On the other hand, the Union initiated several subsidy schemes for European audiovisual productions (and especially multinational co-productions) in an attempt to further promote the Europeanization of the audiovisual market. These policies were driven not only by economic considerations but also by social, cultural and ‘identitive’ ones. Both the European Commission and the European Parliament believed that the EU’s audiovisual support measures would help to foster a ‘European awareness’ among national mass publics. They were expected initially to make audiences watch more of each other’s national audiovisual output and thereby increase mutual awareness and understanding. Ultimately, they would give birth to a partially ‘denationalized’ and thus supposedly ‘pan-European’ and ‘Europeanizing’ audiovisual format as national audiovisual industries would ‘mix and mingle’. Yet in assessing the impact of EU audiovisual policy MICE comes to sobering conclusions. First, cultural and linguistic barriers between the member states proved higher and more resilient than EU policy-makers had anticipated. Most audiovisual productions are never shown beyond their country (or linguistic region) of origin. Similarly, while deregulation spawned hundreds of private television stations, almost all of them cater to mono-national or monolingual audiences; attempts at pan-European satellite broadcasting (equally supported by the EU) stumbled over the same combination of cultural and linguistic barriers that frustrated the ‘denationalization’ of the audiovisual productions market. There is, Collins argues, now a ‘Single Market for broadcasting and the audio-visual, but not a common market’ (p. 18). On top of this the Commission suffered yet another defeat: the past two decades have seen a steady increase in audiovisual imports from the United States. This was fuelled by the proliferation of new broadcasters and their thirst for cheap programming input. Furthermore, it reflected the viewing preferences of national audiences, which generally prefer US productions to those of other European countries. Paradoxically, the US has come closer to developing a truly pan-European audiovisual format than any country in Europe. Such conclusions clash with those of Shore and Kurzer. Shore tells of a



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‘European consciousness’ being disseminated by an ambitious and expansive Commission, while Kurzer believes that even the most sensitive national domains are gradually being Europeanized as an indirect by-product of market integration. Collins, by contrast, tells of stubborn cultural barriers and of a persistent refusal by national audiences to become culturally ‘denationalized’ – be it indirectly and by stealth a` la Kurzer or through conscious bureaucratic planning a` la Shore. Two broad lessons flow from this. First, notwithstanding the partial homogenization of consumption patterns, sexual mores and leisure habits that so intrigues Kurzer, cultural and linguistic boundaries in Europe have remained strong. For many critics, to be sure, this hardly comes as a surprise, given Europe’s legacy of fervently pursued cultural self-differentiation along national lines over the past centuries (Smith 1992; Cederman 2001). While the Commission is keen to depict ‘European culture’ as a self-evident fact merely in need of being ‘affirmed’ and ‘rediscovered’, the fate of EU audiovisual policy powerfully illustrates that the real challenge runs much deeper. The second lesson is political. In addition to national audiences, national governments, too, frustrated the EU’s audiovisual ambitions. While they granted the Union a limited audiovisual role, their support was often halfhearted and disingenuous. For instance, France’s call for mandatory European content quotas ostensibly sought to protect ‘European culture’ from ‘Hollywood imperialism’. In reality, however, France’s cultural priorities were highly nationalistic, preoccupied with maximizing its own audiovisual market share and with defending the global status of the French language. For national governments, too, culture is still largely a national domain. There is of course a danger of wanting to infer too much from all this. Just as the Europeanization of cultural ‘form’ in some areas as witnessed by Kurzer does not necessarily equate to a Europeanization of ‘meaning’ and the emergence overarching European identifications, so the EU’s failure to Europeanize the audiovisual sector does not necessarily preclude the rise of a shared European subjectivity. After all, Swiss viewers from all linguistic regions watch very little domestic television from across the linguistic divide and share relatively few ‘objective’ cultural characteristics, but this has not hindered a shared ‘Swiss subjectivity’ and adherence to overarching political norms and symbols (Laponce 1987). Conversely, some of the most vicious conflicts of recent times have involved populations that share a great deal of ‘objective’ cultural similarity – Rwanda, ex-Yugoslavia and Northern Ireland illustrate the point. Here again, the basic insight is that ‘objective’ cultural form, on the one hand, and ‘subjective’ meanings and identifications, on the other, are not necessarily linked, at least not in any direct and unambiguous way. One final point: all too often, students of cultural change in contemporary Europe believe they have discovered broad historical trajectories based on relatively narrow and recent empirical observations. Therefore, if their conclusions clash this may stem above all from the fact that they are looking at different empirical developments. Those who examine sexual norms or drinking


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habits might detect strong Europeanizing tendencies, while those interested in language or audiovisual policy are struck by the apparent cultural resilience of the nation-state. Perhaps, then, the quest to identify a single ‘cultural logic’ in Europe may one day give way to the insight that such a logic does not exist. Perhaps all we can reasonably hope to discover are different tendencies that sometimes reinforce and sometimes contradict each other. But in any event, at this relatively early stage in European integration our ability to make well-founded judgements about its cultural implications is limited. This is inevitably so, given the slow and uneven pace at which symbolic categories are constructed and internalized and at which subjectivity can be transformed. Thus, even if a coherent cultural story is at present unfolding in Europe, it may well be too early to say much about the plot. Address for correspondence: Tobias Theiler, Department of Politics, University College Dublin, Belfield, Dublin 4, Ireland. Tel: 00353 1 7168287. email: [email protected] REFERENCES Bourdieu, Pierre (1984) Distinction: A Social Critique of the Judgement of Taste, London: Routledge & Kegan Paul. Cederman, Lars-Erik (2001) ‘Nationalism and bounded integration: what it would take to construct a European demos’, European Journal of International Relations 7(2): 139–74. Cohen, Anthony P. (1989) The Symbolic Construction of Community, London: Routledge. Deutsch, Karl (1954) Political Community at the International Level: Problems of Definition and Measurement, Garden City: Doubleday. Laponce, Jean (1987) Languages and their Territorries, Toronto: University of Toronto Press. Smith, Anthony D. (1992) ‘National identity and the idea of European unity’, International Affairs 68(1): 55–76. Theiler, Tobias (forthcoming) Political Symbolism and European Integration, Manchester: Manchester University Press.



Notes on contributors Published online: 04 Feb 2011.

To cite this article: (2003) Notes on contributors, Journal of European Public Policy, 10:5, 849-849, DOI: 10.1080/1350176032000124131 To link to this article: http://dx.doi.org/10.1080/1350176032000124131


JPP105P012 FIRST PROOF 09-10-03 16:04:29 AccComputing

Journal of European Public Policy 10:5 October 2003: 849


Notes on contributors

Olivier Costa is a CNRS (National Centre for Scientific Research) Senior Research Fellow at the CERVL, Bordeaux, France, and a Visiting Professor at the College of Europe, Bruges, Belgium. Renaud Dehousse is Jean Monnet Professor at the Institut d’e´tudes Politiques (Sciences Po) and Co-ordinator of the Forum europeén de Sciences Po, Paris, France. Adrienne He´ritier is Professor of European Public Policy at the European University Institute, Florence, Italy. Nicolas Jabko is a research fellow at the Centre d’Etudes et de Recherches Internationales (CERI) of Sciences Po, Paris, France. Brigid Laffan is a Jean Monnet Professor in the Department of Politics, University College Dublin, Ireland. Christian Lequesne is a Research Director at the Fondation Nationale des Sciences Politiques and the Deputy Director of CERI. He is also a Professor at Sciences Po, Paris, France, and at the College of Europe, Bruges, Belgium. Paul Magnette is Professor of Political Science and Director of the Institut d’e´tudes europeénnes at the University of Brussels, Belgium. Ve´ronique Pujas is a research fellow at the CNRS-CIDSP unit and Lecturer in Comparative Politics at the Institut d’e´tudes Politiques in Grenoble, France. Philippe Rivaud is currently working for the EU Commission in Brussels, Belgium. Tobias Theiler is a Lecturer in the Department of Politics, University College Dublin, Ireland. Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124131